DARSHAN vs Union Of India And Ors

The applicant has filed this OA seeking the following reliefs:-

"(I) Allow the present Original Application.

(II) Direct the respondents to extend the benefit of the judgment of OA 365/2013 as passed by the Hon"ble CAT in the case of Varsha Rani vs. UOI & and decided on 15.07.2015 and implemented by the department on 01.03.2016.

(III) Direct respondents to count the qualifying service as per rules specially Rule 49 (3) of the CCC (Pension) Rules 1972.

(IV) Alternatively, Direct the respondents to count the Short Duty Period service rendered by the applicant towards pension and pensionary benefits, as per the OM dated 2.6.1994 and to make up the shortage of 1 day of qualifying service.

(V) Alternatively, Direct the respondents to shift the applicant from Option B to Option A in the matter of opting for pensionary benefits.

(VI) Grant all consequential benefits to the applicants, if any due under the statutory rules and law.

(VII) Issue any such and further order/directions the Hon"ble Tribunal deems fit and proper in the facts and circumstances of the case; and

(VIII) Allow exemplary costs of the application."

Brief facts of the case are that the applicant was initially appointed in DOT, i.e., the Indian Telecommunication Department as it then was, as Short Duty Telephone Operator w.e.f. 20.5.1985.

She continued as such till 1.2.1989. Applicant during the short duty service period was sent on two months theoretical training w.e.f. 19.8.1985 to 18.10.1985 and one month field training from 19.10.1985 to 18.11.1985. Thereafter she was appointed on regular basis as Lady Telephone Operator in the office of respondent no.1 on 2.2.1989 and continued to work as such. Thereafter she joined in MTNL where she was permanently absorbed w.e.f. 1.11.1998 as Telephone Operator.

2.1 According to the applicant, after serving for more than 10 years on regular basis in DOT applicant was absorbed in MTNL and at the time of her absorption, applicant was required to fill an option for grant of pension and pensionary benefits as under:-

"(a) To retain pensionary benefits available to me under the Govt. of India at the time of my retirement in accordance with the Central Govt. rules in force at that time.

(b) To be governed by the rules of Mahanagar Telephone Nigam Ltd., in respect of the benefits payable to me at the time of my retirement from the Nigam. In respect of my service under the central Govt. I opt to draw pro-rata monthly pension till my absorption in MTNL.

NOTE:

Choose either (a) or (b), strike whichever is not applicable.

Optees under (a) shall get pensionary benefits available under central govt. rules in force at the time of their retirement.

Optees under (b) shall be entitled for pensionary benefits available under PSU. However, for the service rendered under DOT, optees under (b), who are permanent & are having service of 10 years or more in DOT will receive pro-rata monthly pension w.e.f. 1.11.98. No part of pro-rata pension is allowed to be commuted.

2.2 The applicant had a total gross service of more than 10 years (including short service and training period) in DOT before she was absorbed in MTNL. Therefore, she choose to opt for Option (b), meaning thereby that she would be getting pro-rata pension (Annexure A-2).

2.3 The respondents considered the option filled in by the applicant after going through her service records passed the formal order of permanent absorption of the applicant vide order passed on 23.5.2001 accepting the option filled in by her to be covered under Option B. Therefore, applicant had no reason to doubt that she would not be getting Pro-Rata pension after all.

2.4 According to the applicant, now applicant has come to know that she does not complete 10 years regular service and that too, as per the incorrect calculation of service by her employers and that the option chosen by her would be no option at all, as she does not get the benefit of pro-rata benefit. Meaning thereby that the option exercised by her was not an informed choice as she was under the impression that she had completed 10 years service in DOT, whereas, applicant has been held to have a service of 9 years 8 months and 27 days and is short of only 1 day (Feb 1989-27) in completing 9 years and 9 months of service in DOT.

2.5. Applicant averred that short duty period of the applicant has not been counted towards the calculation of the qualifying service leading to a loss to the applicant.

2.6 The applicant made a representation on 13.10.2016 (Annexure A-5) to respondent no.2 stating therein that since she did not have 10 years service her case should be considered for change of option as per her entitlement, alternatively her short duty period should be considered and added to her regular service so that she would be eligible for Option B.

2.7 It is further stated that respondent no.2 issued an OM dated 2.6.1994 (Annexure A-4) whereby it was decided that 50% of all the casual duty performed by the employees would be counted towards pensionary benefits.

2.8 Applicant further stated that similarly situated employee like the applicant filed OA 365/2013 (Varsha Ran vs. UOI and another) which was allowed by this Tribunal vide Order dated 15.7.2015 and the same was later on implemented by the department vide order dated 1.3.2016. This fact has also been stated by the applicant in her representation but the respondents have not taken any decision on the said representation till date and have forced the applicant to approach this Tribunal for redressal of her grievances.

Pursuant to notice both the respondents have filed their replies. In the reply filed by respondent no.1, it is stated that it is correct that order was passed on 23.5.2011 for her permanent absorption in MTNL with pro-rata retirement benefits. They further stated that extension of pro-rata benefits to the optees considering their eligibility qualifying service pertains to AO (P&A), MTNL concern and also counting for short duty period towards calculation of the qualifying service pertains to AO (P&A) MTNL concern.

3.1 It is further stated that representation of the applicant dated 13.10.2016 was received in their office on 18.10.2016. In response to which, a letter was written to AGM (A) Hq. for providing relevant documents to verify the dates/facts mentioned in representation and to AO (P&A) West to intimate the net qualifying service rendered by the applicant upto 31.10.1988 but no reply has been received so far frm AO (P&A) West (MTNL).

3.2 Regarding change of option, the same is not permitted as "Option once exercised will be final and no change whatsoever will be permitted subsequently" which is clearly mentioned in notification for calling for options for pensionary benefits. Adding to short duty period to her regular service pertains to AO (P&A) concern, MTNL.

3.3 It is further stated that as per Rule 22 and GOI (Annexure R1/2) decision there under provide that pre appointment training period counts as qualifying service for pension if the regular appointment is followed immediately by completion of training period whereas in the present case there is a gap of 4 years and 10 months approx. between completion of training and date of appointments.

In the counter affidavit filed by respondent no.2, it is stated that the applicant was absorbed in MTNL w.e.f. 1.11.1998. The „Note" as mentioned in the OA is incomplete. Point No.3 of the OA is "Optees under (b) shall be entitled for pensionary benefits available under PSU. However, for the service rendered under DOT, optees under (b), who are permanent and are having service of 10 years or more in DOT will receive pro-rata monthly pension w.e.f. 1.11.1998. No part of pro-rata pension is allowed to be commuted. Whereas the employees with less than 10 years of service, quasi permanent and temporary employees shall be entitled to an amount equal Provident Fund contributed for the period of their service under the Govt. with simple interest at the rate of 6% p.a. as opening balance at their CPF account with MTNL." Point No.4 is "Options exercised by Quasi permanent and temporary employees for Govt. pensionary benefits shall be valid only after they have been confirmed in MTNL.

4.1 It is further stated that the order was passed on 23.5.2011 for her permanent absorption in MTNL with pro-rata retirement benefits. MTNL had sent the case of the applicant to CCA, DOT, DTO Building, Prasad Nagar, New Delhi for settlement of pro-rata pension but the same was received back on 22.1.2008 with remarks that :

"As per CCS Pension Rule 22 and GOI decision there under provide that pre appointment training period counts as qualifying service for pension if the regular appointment is followed immediately by completion of training period. Where as in the instant case there is a gap of 4 years and 10 months (apprx.) between completion of training and date of appointments."

In the rejoinder affidavit filed by the applicant, it is stated that the respondents have themselves passed the order of permanent absorption on 23.5.2011 after going through her service records. Applicant further reiterated that the issue raised in this OA was agitated by the similarly situated employees before this Tribunal which was allowed and implemented by the respondents. The applicant has served with the respondents for 9 years 8 months and 27 days and is short of 1 day in completing 9 years and 9 months service in DOT.

Heard learned counsel for the parties and perused the material placed on record.

During the course of hearing, learned counsel for the applicant submitted that admittedly the applicant had exercised her option „B- for grant of pro-rata pension as has been indicated in the permanent absorption order dated 23.5.2001 issued by the MTNL and further as per letter dated 22.1.2008, DOT wrote a letter to MTNL stating as under:-

"1. Details of training period and copy of order thereof No.DTTC/JN/WM-59/24 dated 02-03-82 not furnished.

Copy of presidential order (PO) may be incorporated in pension file.

Reason for late submission of case may be clarified. Smt. Darshan Kumari:-

As per CCS Pen Rule-22 and GOI decision there under provide that pre appointment training period counts as qualifying service for pension if the regular appointment is followed immediately by completion of training period. Where as in the instant case there is a gap of 4 years and 10 months (apprx.) between completion of training and date of appointments. Rules and circumstances under which benefit of 3 months training period granted to Smt. Darshan Kumari may be clarified.

It is also stated that all the cases of pro-rata pension may be routed through Accounts Officer (Pro-rata) Office of GM (F) MTNL Tax Bldg. Eastern Court New Delhi-110001."

7.1 Counsel further submitted that admittedly the applicant is having a short fall of 1 day in completing 9 years and 9 months service in DOT. However, if her service rendered as short duty telephone operator w.e.f. 20.5.1985 till 1.2.1989 without any break be counted as provided in Rule 22 of the CCS (Pension Rules, 1972 which provides as under:-

"(1) Pre-appointment training period counts as qualifying service. - The Staff Side to the National Council (JCM) had suggested inter alia that the service rendered by an employee during the training period before his regular appointment to the grade may be treated as qualifying service for pension.

The request made by the Staff Side of the National Council (JCM) has been examined and it has now been decided that in respect of Groups `C' and `D' employees, who are required to undergo departmental training relating to jobs before they are put on regular employment, training period may be treated as qualifying service for pension, if the training is followed immediately by an appointment. This benefit will be admissible to all Groups `C' and `D' employees even if the officers concerned are not given the scale of pay of the post but only a nominal allowance.

The Ministry of Finance, etc., are requested to bring the above decision to the notice of all officers working under them including those in the attached and subordinate offices for their guidance.

These orders come into force with effect from 22nd December, 1983.

Benefit of these orders will be available to all those employees who retired on or after 22nd December, 1983."

7.2 Counsel for the applicant further submitted that in action on the part of the respondents, despite their own communication dated 22.1.2008 on the issue of grant of pro-rata pension to the applicant and despite the fact that applicant has submitted her representation dated 13.10.2016 in which she has specifically stated that similar issue had already been adjudicated by this Tribunal in OA No.365/2013 which was allowed by this Tribunal vide Order dated 15.7.2015, is arbitrary and discriminatory.

It is admitted fact that the training period of the applicant has not been taken into consideration as per rules while counting her eligibility for grant of pro-rata pension as per the option exercised by the applicant at the time when she was absorbed vide dated 23.5.2001 (Annexure A-3). This issue has been adjudicated by this Tribunal in OA No.365/2013 which was allowed by this Tribunal vide Order dated 15.7.2015 with the following directions:-

"10. In view of the aforementioned, the Original Application is disposed of with direction to respondent No.1 - Department of Telecommunications to grant pro-rata pension to the applicant for the service rendered by her with it before her absorption in Mahanagar Telephone Nigam Limited, within a period of three months from the date of receipt of a copy of this Order. It goes without saying that the liberty would be borne by the Department of Telecommunications, i.e., respondent No.1. No costs."

Further the respondents have themselves issued an order dated 22.1.2008 in which they have stated that "As per CCS Pension Rule 22 and GOI decision there under provide that pre appointment training period counts as qualifying service for pension if the regular appointment is followed immediately by completion of training period. Where as in the instant case there is a gap of 4 years and 10 months (apprx.) between completion of training and date of appointments. Rules and circumstances under which benefit of 3 months training period granted to Smt. Darshan Kumari may be clarified." and further stated that „Details of training period and copy of order there of No.DTTC/JN/WM-59/24 dated 02-03-82 not furnished".

It is also pertinent to mention that the representation of the applicant dated 13.10.2016 was received by the DOT and in response to the said representation, DOT wrote a letter to AGM (A) Hq., for providing relevant documents to verify the dates/facts mentioned in representation and to AO (P&A) West to intimate the net qualifying service rendered by the applicant upto 31.10.1998, as stated by the respondent no.1 in their counter affidavit.

In view of the above facts and circumstances of this case, this Court deems it appropriate to remit this case back to the respondents to consider the case of the applicant in the light of the decision of this Tribunal in OA No.365/2013 (Varsha Rani vs. Union of India and others) decided on 15.7.2015 and pass a reasoned and speaking order within a period of two months from the date of receipt of certified copy of this Order. There shall be no order as to costs.

The OA is allowed in terms of the observations made herein above. There shall be no order as to costs.