Dr. Fozia Mir vs Union Territory Of Jammu And Kashmir & Ors.

JUSTICE RITU TAGORE, MEMBER [JUDL.]

Through the medium of the present petition, the petitioner seeks the following reliefs and directions-

The facts, as projected in the Original Application, are that the applicant came to be appointed on regular basis in substantive capacity against an available vacancy of Dental Surgeon in the pay band & grade pay of Rs. 9300-34800 + Rs. 5400 on 30.12.2009, vide Govt. Order No. 584 HME of 2019 dated 30.12.2009. Pursuant to the aforesaid appointment order, the applicant reported at the office of Respondent No. 4 on 31.12.2009, and accordingly joined the office of Respondent No. 4 as Dental Surgeon.

It has further been pleaded that, at the time of her appointment and consequent upon her joining, the applicant was pursuing her MDS Course at Raja Muthiah Dental College & Hospital, Annamalai University, since 2008. The applicant, accordingly approached the competent authority seeking permission to continue and pursue her MDS Course from the aforesaid University and permission was accorded to her by the competent authority to continue and pursue the said course. Consequently, extension of joining time was allowed in her favor by the Administrative Department in terms of Letter No. HD (GAZ) Gen-18/2010 dated 19.02.2010. The record further reveals that, Respondent No. 4 vide Communication No. Est/3/1-133/1121 dated 02.07.2019 addressed to Respondent No 1, made reference of earlier communication No. HD (GAZ) Gen-18/2010 dated 19.02.2010.

It is further made out from the record that, upon being granted extension of period of joining for pursuing the MDS course, the applicant, immediately upon completion of the course, joined back in the office of Respondent No. 5 on 07.05.2011 and the extension of joining time was subsequently accorded in favor of the applicant, ex post facto, by the Competent Authority vide Office Order No. 554-G of 2011 dated 19.11.2011. Further, immediately upon joining of the applicant on 07.05.2011, the applicant applied for Registrar-ship in the Government Dental College, which request was acceded to and the applicant joined as Registrar vide Order No. GDE/230 of 2011 dated 15.11.2011, initially for a period of one year thereafter extended for three years. The applicant was duly relieved by the department for discharging her duties as Registrar. It is upon completion of her tenure as Registrar at the Government Dental College, Srinagar, the applicant joined the office of Respondent No. 5 and was posted accordingly.

According to the applicant, despite having so joined, she was not extended the benefit of the Old Defined Pension Scheme (OPS), on the ground that said scheme was not applicable to her. Aggrieved of the aforesaid position, the applicant approached Respondent No. 5, seeking extension of the benefits of the Old Pension Scheme to her case, contending that a similar benefit was extended to other situated employee, namely, Dr. Rizwan-ur-Rashid, who had initially joined the office of Respondent No. 5 on 31.12.2009 but whose joining time had subsequently been extended and accepted by the Administrative Department vide letter dated 19.02.2010 and was extended the benefit of the Old Pension Scheme vide Government Order No. 729-HME of 2015 dated 18.11.2015 and other similarly situated employees who had initially joined on 31.12.2009 and their joining time were subsequently extended, were also extended the benefit of Old Pension Scheme. In furtherance of her claim and seeking parity with the aforesaid similarly situated employees, the applicant submitted a representation before Respondent No. 5 on 23.05.2019, requesting for extending the benefit of the Old Pension Scheme to her case as well.

It is further made out from the record that, pursuant to the representation so submitted by the applicant, Respondent No. 5 addressed a communication bearing No. Est/3/1-133/1121 dated 02.07.2019 to Respondent No. 2, requesting that the representation of the applicant be placed before the Administrative Department for appropriate instructions and orders. Pursuant to aforesaid communication, Respondent No. 4 addressed a communication bearing No. HD/Gaz/Gen/156/2019 dated 22.10.2019 to Respondent No. 5, advising the latter to proceed in the matter strictly in accordance with the advice tendered by the Finance Department vide U.O. No. A/126(04)-A-636 dated 16.09.2019. Thereafter, vide Communication bearing No. Est/3/1-133/713 dated 28.02.2020, addressed by Respondent No. 5 to Respondent No. 2, recommended the case of the applicant for issuance of appropriate orders on the same analogy as had been adopted in the case of Dr. Rizwan-ur-Rashid (Dental Surgeon) in terms of Government Order No. 729 - HME of 2015 dated 18.11.2015, with a view to avoiding any further complications in the matter.

The applicant asserts that , Respondent No. 1, without taking into consideration the recommendation made by Respondent No. 5 in her favor, proceeded to pass the impugned Government Order No. 667-JK(HME) of 2021 dated 18.10.2021, whereby directed that all similarly situated cases of Dental Surgeons, including that of the applicant, who had been appointed in terms of Government Order No. 584-HME of 2019 dated 30.12.2009, be dealt with in accordance with New pension Scheme read with the opinion of the Finance Department conveyed vide U.O. No. A/126(04)-A-435(FD)-Code/138/2021-03-(FD) dated 14.07.2021. Respondent No. 8, in furtherance of the aforesaid impugned order issued communication to Respondent No. 7, bearing No. BMO/P/3021 dated 03.03.2022, whereby sought necessary directions/orders from Respondent No. 7 for implementation of the impugned dated 18.10.2021, seeking parity with the aforesaid similarly situated employees.

The applicant contends that, by virtue of the aforesaid impugned orders and communications issued from time to time by the respondents, she has been denied the benefit of the Old Defined Pension Scheme, to which, she is otherwise entitled as a matter of right and on the principle of parity, the benefit having been extended to other similarly situated doctors. The applicant contends that, notwithstanding her repeated representations and the respondents’ own acknowledgement of her date of appointment as Dental Surgeon as 30.12.2009, as reflected in the Final Seniority list, she has been erroneously denied the benefit of Old Pension Scheme on basis of incorrect interpretation of the applicable provisions thereof, thereby necessitating her approaching this Tribunal for the reliefs claimed.

Learned counsel for the applicant, in tune with the pleadings, submitted that it is a settled principle of law that an employee is borne on the cadre of a service from the date of his/her actual and substantive appointment, in terms of Rules 23 and 24 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956. Material on record including the respondents’ own communications and the final seniority list unequivocally establishes that the applicant was appointed on 30.12.2009 well prior to the cut-off date of 01.01.2010 prescribed under the New Pension Scheme.

Learned counsel accordingly submitted that the SRO-400 dated 24.12.2009 by its express terms, applies to employee appointed on and after 01.01.2010 and has no application to those appointed prior thereto. Since the applicant’s appointment admittedly preceded the cut-off date, the question of her being governed by the New Pension Scheme does not arise. It was contended that the impugned orders/ communications, being contrary to the applicant’s date of substantive appointment and respondents’ own record, are non-est in the eyes of law and are liable to be quashed.

It is contended that, this position of law has been clarified by the Division Bench of the Hon’ble High Court in the case titled UT of J&K & Ors. v. Hamidullah Andrabi & Ors., LPA(SW) No. 10/2019, decided on 11.11.2021, contending that, wherein it was held that the applicability of the Pension Scheme SRO-400, is to be determined with reference to the prescribed cut- off date and that the employees appointed prior thereto are governed by the Old Pension Scheme. This Tribunal in UT of J&K & Ors. v. Javid Hussain Dar & Ors, in TA No. 8613/2020, decided on 22.02.2023, held that employees, whose formal joining occurred after the cut- off date for the reasons not attributable to them, were held not liable to be discriminated against vis-à-vis similarly situated employees and were directed to be governed by the Old Pension Scheme.

It was submitted that, the applicant’s case stands on a still stronger footing, as her substantive appointment itself was admittedly made on 30.12.2009, prior to the cut -off date prescribed under SRO-400 and had also joined the service on 31.12.2009 before the cut-off date i.e. 01.01.2010. It was, therefore, contended that, in view of the settled legal position and the admitted factual position borne out by the record, the impugned orders/communications, are unsustainable in the eyes of law and deserve to be set aside to the extent it pertains to the applicant.

Referring to the opinion expressed by the Finance Department, learned counsel submitted that same is clear and self-explanatory, to the effect that SRO-400 dated 24.12.2009 would govern the pensionary conditions of State Government employees, appointed on or after 01.01.2010 and that the Old Pension Scheme would not be applicable to Government employees brought on the regular cadre on or after 01.01.2010. Learned counsel accordingly submitted that aforesaid opinion of the Finance Department, insofar as it relates to the applicability of SRO-400 dated 24.12.2009 to the case of the applicant, has been misconstrued and misread by Respondent No. 1, resulting in the issuance of the impugned orders/ communications.

Learned counsel further submitted that the settle principle of law is that equals cannot be treated unequally and that any administrative action resulting in such unequal treatment is liable to be tested on the touchstone of Article 14 and 16 of the Constitution of India. It was contended that, the respondents have extended the benefit of old pension scheme to similarly situated employees, as is evident from the government order No. 729 HME of 2015 dated 18.11.2015 (in pleadings mentioned as 18.11.2011), whereby Dr. Rizwan-ur-Rashid similarly situated with the applicant, was extended the benefit. Learned counsel, accordingly, submitted that denial of same benefit to the applicant is arbitrary and discriminatory. It is submitted that it is trite law that pension is not a bounty payable at the discretion of the employer but constitutes a deferred component of service benefits, protected in law. Relying upon the judgments of the Hon’ble Supreme Courts in D.S. Nakara & Ors. v. Union of India, reported in (1983) 1 SCC 305; Sudhir Chandra Sarkar v. Tata Iron & Steel Co. Ltd., reported in (1984) 3 SCC 369; and State of Jharkhand v. Jitendra Kumar Srivastava, reported in (2013) 12 SCC 210, learned counsel submitted that pensionary benefits cannot be denied except by authority of aw. It was further submitted that the executive instructions, lacking statutory force cannot constitute law so as to deprive the applicant of an accrued pensionary benefits.

On this premise, learned counsel contended that impugned order/ communications, having issued mechanically and without application of mind, cannot operate to deny the benefit of the Old Pension Scheme to the applicant and is therefore, liable to be set aside, with a consequential direction to the respondents to extend to the applicant the benefit of Old Pension Scheme on the same terms which has been granted to the others employees.

Learned counsel appearing for the respondents, consistent with the stand taken in the reply filed, submitted that the claim of the applicant is liable to be rejected on the ground of delay and aches, as well as estoppel. It was submitted that applicant had accepted the appointment made in the year 2010 without any objection or demur and, having acquiesced thereto, cannot now seek to assail the same or claim benefit on an altogether different basis. Learned counsel further submitted that present application is barred by limitation under Section 21 of the Administrative Tribunals Act 1985 and, being beyond the prescribed period of limitation, is liable to be dismissed on this ground alone.

Learned counsel for the respondents on merits submitted that the case of Dr. Rizwan-ur-Rashid, a Dental Surgeon appointed under Government Order No. 584-HME of 2009 dated 31.12.2009, had already been settled by Health & Medical Education Department vide Government Order No. 729-HME of 2015 dated 18.11.2015, and pursuant to the concurrence of Finance Department conveyed vide U.O No. A/96(204)-II/429 dated 03.06.2015, it was decided that his case would be covered under Old Pension Scheme, having been appointed on 31.12.2009.

Learned counsel for the respondents contended that, upon receipt of the applicant’s case seeking coverage under Old Pension Scheme, the matter was taken up by the Finance Department, which vide its common opinion U.O. No. A/126(04)-4-636 dated 16.09.2019 clarified that, under the applicable pension scheme SRO 400 dated 24.12.2009, Government employees appointed or brought on the regular establishment on or after 01.01.2010, would be governed by New Pension Scheme and that the existing pension rules (Old Pension Scheme) would not be applicable to such employees. The Health & Medical Education Department while conveying opinion of Finance Department dated 16.09.2019 accordingly advised Director, Health Services, Kashmir to proceed in terms thereof. Consequently, the claim of the applicant was considered and rejected by the impugned order.

It is submitted by learned counsel that extending benefit of Old Pension Scheme to the applicant, contrary to its applicable provisions would have wider administrative ramifications and may give rise to similar claims and consequential litigation. It is stated that the claim of the applicant is otherwise barred by limitation and is also hit by principle of estoppel. Consequently, it is prayed that the present petition, being devoid of merit, is liable to be dismissed.

I have heard learned counsel for the parties and perused the material available on record.

Having considered the rival submissions advance by learned counsel for the parties and upon consideration of the material placed on record, this Tribunal finds that controversy involved in the present application essentially concerns the applicant’s entitlement to be governed by Old Pension Scheme applicable to the employees appointed prior to the prescribed cut- off date of the implementation of the Pension Scheme- SRO 400 dated 24.12.2009 and parity with similarly situated employees particularly Dr Rizwan-ur-Rashid, who were extended the benefit of Old Pension Scheme. It is on this premise that the applicant has sought a direction for extending her the benefit of the Old Pension Scheme, contending that she was appointed on 30.12.2009 and joined service in pursuance thereof on 31.12.2009, prior to the notified date of implementation of the New Pension Scheme on 01.01.2010.

At the outset, I deem it appropriate to deal with the objection raised by learned counsel appearing for the respondents with regard to limitation. The objection of the respondents founded upon delay, laches and limitation does not appear to furnish a complete answer to the applicant’s claim. The relief claimed by the applicant relates to her entitlement to pensionary benefits, which, in its nature, constitutes a recurring and continuing cause of action in the given facts. The Hon’ble Supreme Court in Bhikani Devi and Ors v. Union of India (Arising out of SLP (C) Nos. 28802-28804 of 2019) decided on 01.06.2026, has reiterated that pensionary benefits constitute a continuing cause of action and that a substantive claim for pension cannot be defeated solely on the ground of delay and laches, though the question of arrears remains subject to the settled principles governing limitation. The said principle, however, does not mean that every stale claim relating to service condition is automatically immune from the doctrine of laches. The distinction lies in the nature of the right asserted. Where the claim is founded upon a continuing denial of an admissible pensionary benefit, each occasion on which the benefit is withheld gives rise to recurring grievances. The objection of delay, therefore, cannot by itself, extinguish the substantive entitlement, particularly where the entitlement is claimed to flow from applicable pension scheme itself.

Coming to the facts of the present case, the grievance of the applicant relates to the determination of the pension scheme applicable to her, which has a continuing and recurring bearing upon her service conditions and consequential retiral benefits, including the basis on which her pension would ultimately be determined upon superannuation. The applicant is admittedly still in service. The cause, therefore, cannot, in the facts and circumstances of the present case, be treated as one which stood wholly extinguished merely by passage of time, particularly when the adverse determination continues to operate to her prejudice. In a case of Javid Hussain Dar(supra), Hon’ble High Court, while considering the similar issue, held that cause of action relating pensionary benefits was a continuing one and in the facts of the case, would accrue upon the retirement of the respondents.

In the present case, the cause of action, therefore, cannot be viewed as having arisen and exhausted on the date when the benefit was initially denied. The claim in question pertains to pensionary benefits, the denial of which has a continuing and recurring effect. Accordingly, in my considered opinion, the objection of delay, laches and limitation, raised by the respondents, cannot by itself, defeat the applicant’s claim for consideration of her entitlement to pensionary benefits under the Old Pension Scheme, and such does not merit acceptance in the facts and circumstances of the present case.

The next question that arises for consideration is whether applicant is estopped from claiming the benefit of Old Pension Scheme on the ground she accepted the appointment and continued in service without demur. Mere acceptance of appointment and continuation in service, by themselves cannot constitute waiver or relinquishment of a statutory or otherwise legally enforceable pensionary entitlement, particularly when the applicability of pension rules scheme is governed by relevant rules. On the contrary, as is evident from the material on record, the applicant is agitating her claim for extension of the benefit of Old Pension Scheme (OPS), asserting that she is governed by the said Scheme and is entitled to the same treatment on the principle of parity and on the analogy of the benefit extended to another Dr. Rizwan-ur-Rashid. The Central Administrative Tribunal^{principle of estoppel, therefore, in the facts and} circumstances of the present, is not attracted.

Before proceeding to consider the merits of the case, it would be opposite, at this stage, to notice the principles enunciated by Hon’ble Courts with regard to nature and character of pension and legal rights flowing therefrom. It is now well settled that pension is not a bounty or a gratuitous payment. The right to pension flows from the rules governing service and, once an employee falls within the ambit of such rules, the entitlement is a valuable and vested right The Constitution Bench of the Hon’ble Supreme Court in Deonandan Prasad v. State of Bihar & Ors (1971) 2 SSC 330, authoritatively held that pension is a valuable right vesting in a government servant and that its payment does not depend upon the discretion of the government. The aforesaid principle was reiterated and elaborated by the Constitution Bench in D.S.Nakara (supra), wherein it was held that pension is a right and not a bounty or gratuitous payment. In Jitendra Kumar Srivastava (Supra), the Hon’ble Supreme Court while reiterating the principle enunciated in the earlier decisions, held that pensionary benefits are in the nature of property and that person cannot be deprived thereof except by authority of law. The right to property being constitutionally protected under Article 300-A of the Constitution.

Coming to the merits of the case, the factual position emerging on record, as pleaded by the applicant and not shown to be in dispute on behalf of the respondents, is that the applicant was appointed on 30.12.2009 and joined the cadre on 31.12.2009, i.e. prior to the notified date of implementation of the New Pension Scheme i.e. 01.01.2010. A plain reading of the opinion expressed by the Finance Department vide U.O No. A/126(04)-4-636 dated 16.09.2019 makes its purport clear and self-explanatory. The said opinion provides that SRO-400 dated 24.12.2009 would govern the pensionary conditions of State Government employees, appointed on or after 01.01.2010 and that the Old Pension Scheme would not be applicable to Government employees brought on the regular cadre on or after 01.01.2010.

It is also pertinent to note that the impugned order itself proceeds on an acknowledgment of the aforesaid fact. The applicant’s claim, therefore, is not founded merely upon the date of advertisement, selection or any other anterior event; rather her specific case is that her appointment and entry into the carder took place before the cutoff date prescribed for determining coverage under Old Pension Scheme. This factual aspect, therefore, assume significance while determining the applicant’s entitlement particularly when considered in the light of the opinion of the Finance Department and the criteria prescribed for determining coverage under the respective pension scheme.

It is equally significant that the applicant has placed reliance upon the case of Dr. Rizwan –ur-Rashid, stated to be similarly situated, who has already been brought under the Old Pension Scheme. The material available on record, however, does not indicate that respondents have specifically examined or dealt with the applicant’s claim of parity with Dr Rizwas-ur-Rashid. Likewise, there is nothing on record to indicate that due consideration was given to the recommendation made by Director Health Services, or to the various grounds and contentions specifically raised by the applicant in her representation. These aspects, being material to the determination of the applicants claim, warranted consideration by competent authority before arriving at a decision on her entitlement.

The question of parity, it may be observed, cannot be determined merely on the assertions that another employee has been extended a particular benefit. It necessarily requires examination of relevant facts and circumstances of both the case, including the dates of appointment and joining, the nature and status of service, and the provisions governing their coverage under the applicable pension scheme. If upon such examination, the applicant is found to be similarly situated in all material respects, the respondent would be required to consider whether any legally sustainable basis exist for denying her the same treatment. The principle of equality mandates that persons forming part of the same homogeneous class should ordinarily receive equal treatment. An unexplained differential treatment between similarly situated employees would require examination on touchstone of Article of 14 and 16 of the Constitution. The material on record, as it presently stands, does not demonstrate that any exercise was taken by the respondents. The impugned communications/ orders, therefore, do not reflect consideration of material aspects specially raised by the applicant. The respondents are, therefore required to consider the applicant’s claim not merely with reference to passage of time, but in the light of the admitted relevant date of her appointment and joining, and a similarly situated employee Dr. Rizwan-ur-Rashid has already been brought under the Old Pension Scheme, governing pension scheme and the constitutional guarantee against deprivation of the property otherwise than by authority of law.

In view of the foregoing discussion, the impugned orders/communications, insofar as they relate to the applicant, are set aside. In the light of observations made herein above, the respondents are directed to reconsider the applicant’s claim for coverage under the Old Pension Scheme afresh, having regard to the relevant date of her appointment and joining, the recommendation made by Director Health Service and the specific plea of parity raised by the applicant with reference to Dr. Rizwan-ur-Rashid and other similarly situated employees stated to have been extended the benefit of old pension scheme.

While undertaking the aforesaid exercise the respondent shall also consider the grounds, raised by the applicant in her representation and shall pass a reasoned and speaking order dealing with each of the material aspects relevant to her claim. The respondents shall examine, in particular, whether there exists any legally sustainable distinction between the applicant and the employees relied upon by her and whether, having regard to governing provisions and the factual position obtaining in her case, she is entitled to coverage under the Old Pension Scheme.

Pending such reconsideration, the respondent shall not take any coercive or irreversible steps against the applicant solely on the basis of impugned determination that she is governed by New Pension Scheme, including recovery or adjustment of any amount on that account, subject to applicable rules and final decision be taken by the competent authority .

The competent authority shall complete the aforesaid exercise and communicate a reasoned decision to the applicant within a period of 08 weeks from the date of receipt of a copy of this order.

In the event the applicant is found entitled to the coverage under the Old Pension Scheme, the respondent shall extend to her all consequential benefits admissible under the applicable rules including appropriate correction of her service and pension records and regulation of deductions/ contributions made under New Pension Scheme in accordance with law.

The applicant, however, be entitled to all such consequential benefits only upon her entitlement to Old Pensions Scheme being duly determined in accordance with the applicable rules and instruction.

In above terms, the O.A./445/2023 is allowed. All connected pending M.As., if any are accordingly disposed of. No order as to costs.

Consign the file to the record room after due compliance.