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Judgment
Dr. Chhabilendra Roul, Member (A)
The present Original application has been filed by the three applicants being aggrieved by the order dated 1.11.2018 which amounts to inaction in respect their representations requesting the respondents to allow them the benefit of Old Pension Scheme (OPS) .
The factual matrix relevant to the issues raised in the OA is that the three applicants were appointed on ad hoc basis in the AIIMS, Respondent No.1 . Applicant No.1 was appointed on 1.2.1995; applicant No.2 on 1.2.1995 and applicant No.3 on 16.7.1997. The applicants were appointed following due procedure of selection and were offered regular pay scales. They contributed to GPF account regularly till 1.1.2004, when their contribution stopped on account of the introduction of the New pension Scheme (NPS). These three applicants subsequently were offered regular appointment after following due procedure of selection including advertisement, seeking applications, written test and interview. Applicant No. 1 was appointed on regular basis on 25.08.2005; applicant no.2 on 17.9.2009 and applicant no.3 on 15.9.2009. The applicants represented on 10.4.2017 requesting the respondents to consider the applicants services under GPF-cum-Old Pension Scheme. The same has not been finally considered by the respondents.
Being aggrieved, applicant no.1 filed OA No.2641 of 2018 in this Tribunal. This Tribunal vide order dated 3.8.2018 directed the Respondents to decide the representation of the applicants within a period of 90 days. The respondents vide order dated 1.11.2018 instead of taking a final decision on the representations of the applicants intimated that:
“The matter has been considered by the competent authority of the institute and desired that the opinion / clarification from the Department of Personnel and Training may be obtained whether the benefits of old pension scheme can be extended in such cases. Accordingly, the matter was referred vide Institute letter No. F.6-39/2000-Estt.1 dated 1.2.2018 to the Ministry of Health and Family Welfare being the Administrative Ministry for further clarification and direction in the matter. Clarification / communication from the Ministry on the issue is awaited even after reminders.
In view of above, it is to inform that the issue has already been taken up with the Ministry of Health and Family Welfare for clarification and once the clarification is received, it would be communicated to all concerned.
This issued with the approval of the competent authority.”
Being aggrieved by the action of the respondents, the applicants have come to this Tribunal in the present OA seeking the following relief:-
“a. that the letter /reply dated 21.12.2018 sent by respondent is unsustainable and improper in the eyes of law.
b. The Hon‟ble Tribunal may be pleased to direct the respondents to cover/ provide the applicant‟s benefits of GPF-cum old pension scheme relying on the date of their initial appointment and the consequential benefit arising therefrom retrospectively.
And /or
Any other order/orders deem fit in the facts and circumstances of the case.”
On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
The grounds on basis of which the applicants have sought the aforementioned relief are as follows:-
i). After this Tribunal has odered to consider the representations of the applicants within 90 days from date of receipt of the order dt 3.8.2018, the respondents had ample time to consult DOPT and/ Ministry of Health & family Welfare to take final decision on their representation. Instead, the respondent no 1. adopted delaying tactic of stating that the matter is being taken up with DOPT and Ministry of Health & family Welfare. This shows lack of application of mind and casualness on the part of the respondents.
(ii). Even after the reply dated 1.11.2018, sufficient time has elapsed and the respondents have not taken a final call on the representations of the applicants.
(iii). Rule 13 of CCS(pension) Rules, 1972 states that “subject to the provisions, qualifying service of a Government servant would start from the date the employee takes charge of the post to which he/she is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:”
The counsel for the applicants averred that the benefit of being covered under the OPS is akin to granting qualifying service for getting pension. The applicants were appointed by following due procedure and they were getting regular scale of pay without any interruption till their regular appointment. Moreover, they had been contributing to the GPF scheme. Only after the introduction of the NPS that their contribution was stopped. Their pay was protected when they were regularized.
The counsel for the applicants drew attention of the Tribunal to the order of the Chandigarh Bench of the CAT in Dr.Neelam Aggrwal & ors vs Union of India in OA no.060/0015 of 2018 wherin the benefit of OPS was granted to the applicants thereof, who were initially appointed ad hoc lecturers in PGIMER, Chandigarh. The appeal of the Union of India against said order of the Chandigarh Bench of CAT was dismissed by the Punjab & Haryana High Court vide their order dated 22.10.2018. The Hon‟ble High Court held that:-
“26. For the reasons mentioned above, the respondents were not treated as fresh appointees in stricto sensu. As per the terms and conditions of the appointment letter their services as ad-hoc appointees were not considered for the purpose of their regularization but on their successful appointment as regular employees the services rendered by them on ad-hoc basis were safeguarded for the purpose of pay protection. In view of above discussion the Tribunal rightly came to the conclusion that respondents would be governed by OPS prevalent at the time of their initial appointment.
Viewed from another angle, the respondents were denied benefit of OPS only on the ground that NPS would apply to employees who were appointed on or after 01.01.2004. It is undisputed that respondents were working against those very posts since 1999 onwards although initially on adhoc basis but that cannot be a ground to disentitle them from benefit of OPS.”
Drawing parallel to the instant case, the counsel for the applicants averred that the applicants have been appointed as back as in 1995 and 1997. In strict sense, their appointment could be considered effective de facto appointment from those dates. Hence, the applicants deserve to be given benefit of the OPS.
The counsel for the applicant has further drew attention of the Tribunal that the Respondent no.1 has extended the benefit of OPS to similarly placed employees vide OM No. 49014/2/2014-Estt( C) dated 26.2.2016 of DOPT to all class D employees of AIIMS, who served before 1.1.2004 as causal labourers or temporary staff. Hence, he argued, similar benefit should be extended to the present applicants.
The counsel for the respondents strongly rebutted the arguments by the counsel for the applicants. He averred that the applicants were appointed afresh based on fresh advertisement and selection to regular posts and their appointments took place well after 1.1.2004. As per DOP&T guidelines, such employees are covered under the NPS. Hence, the benefit of OPS cannot be given to the applicants who were appointed prior to 1.1.2004 purely on adhoc basis. He further stated that Rule13 of CCS (pension) Rules, 1972 is not applicable to ad hoc employees. The applicants were appointed in various research projects before joining as regular employees. They were not appointed against regular sanctioned posts.
I have gone through the records of the case thoroughly and heard the arguments carefully. The judgment of the Punjab and Haryana High Court in Union of India vs Dr.Neelam Aggrwal (supra) is distinguishable by the facts of the case therein. The applicants in OA No. 060/0015/2018 were appointed on ad hoc basis against regular vacancies of Lecturers (Assistant Professors). In the instant case, there is no mention or no averment or production of record which shows that the applicants were appointed on ad hoc basis against regular posts or vacancies. This is the material fact distinguishes the case of Dr. Neelam‟s case from the case of the present applicants. The appointment letters for the three applicants, namely ( Annexure-A1) clearly state that “appointment to the post of SR Research Officer/ Scientist II/Scientist-I/RO in the Project titled N-213.” It was clearly mentioned that the project was sponsored /funded by the Ministry of Environment & Forests. Hence, it is my considered view that the ratio of judgment in Dr. Neelam’s case (supra) is not applicable to the present case.
Rule13 of the CCS (pension) Rules. 1972 is, on the above analogy, is not applicable to ad hoc staff appointed to Research Projects even if there is no dis - continuity between the ad hoc and regular services. The mere fact that the applicants were given benefit of pay protection even after takeover of NPIC by AIIMS, it cannot be said that they were appointed against substantial posts on ad hoc basis and these posts were created automatically in AIIMS when the said take over happened. Such posts are created by the Governing Body of AIIMS subject to approval by the Administrative Ministry i.e. Ministry of Health & Family Welfare.
The contention by the counsel for the applicants that temporary Group D employees were given the benefit of their ad hoc services and were granted the benefit of OPS in pursuance of DOPT OM No. 49014/2/2014-Estt.( C) dated 26.2.2016, and such benefit should also be given to the present applicants is not acceptable as this OM is applicable only to those casual labourers who were in temporary status employment on the date of issue of OM dated 10th September 1993. To be specific this Om states:
“8. It is emphasized that the benefit of temporary status is available only to those casual labourers who were in employment on the date of the issue of the OM dated 10 th September, 1993 and were otherwise eligible for it. No grant of temporary status is permissible after that date. The employees erroneously granted temporary status between 10.09.1993 and the date of Hon'ble Supreme Court judgment in Union Of India And Anr. vs Mohan Pal, 2002 (3) SCR 613, delivered on 29 April, 2002, will however be deemed to have been covered under the scheme of 10.09.93.”
In view of the above, the claim of the applicants to be given the benefit of OPS because of their continuous ad hoc appointment as Project staff is rejected. However, during the arguments, the counsel for the applicants stated that the recruitment process for the appointment of one of the applicants started well before 22.12.2003 and hence, that applicant is covered under OM No. 57/05/2021-P&PW(B) dated 3.3.2023. This is not part of the prayer or pleading of the applicants. The said applicant is free to make a submission to the respondents in that regard within the stipulated date 31.8.2023 and the respondents shall consider that case as per extant rules and regulations and/or DOPT guidelines.
The OA is disposed off in above terms. There shall be no order as to costs.
All pending MAs are also disposed of accordingly