Dr. Sneh Arora vs Union Of India & Anr.

By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-

The facts of the case, in brief, as indicated in the OA are that the applicant is a Scientist-I in the Department of Pulmonary Critical Care and Sleep Medicine in All India Institute of Medical Sciences (Respondent No.2). The applicant joined the services with Respondent No.2 on 08.12.1991 as a Research Associate in ICMR Project tilted ’The Design of Peptide analogs for various biological activities' under Dr. G.S Rao, Department of Biophysics and has worked on this project till 08.03.1995 for a period of 3 years and 3 months and thereafter from 01.12.1995 till 30.06.1999 on another project titled "The design of peptide inhibitor using Alpha-Beta dehydro residues' for a period of 3 years 7 months and thereafter continued till 31.03.2000. It is stated that the applicant has also received a Recommendation Letter dated 15.01.2003 from Dr. T.P Singh Head of Department of Biophysics for her significant work in the Department from 08.12.1991 till 31.03.2000. After completion of the above projects, the applicant joined Dr. Y.K. Joshi, Department of Gastroenterology and Human Nutrition as Research Associate from 01.04.2000 till 02.07.2003 on the project titled 'Nutritional status of diabetics' for a period of 3 years. Thereafter, she joined Dr. Randeep Guleria on 03.07.2003 till 02.07.2006 for a period of 3 years as a Senior Research Associate on the project titled as ‘Effect of feeding pectin on blood glucose, lipid profile and antioxidant enzyme status in type 2 diabetics' and thereafter from 01.08.2006 till 31.07.2009 for a period of 3 years on another project titled 'Assessment of nutritional and antioxidant enzyme status in mechanically ventilated critically ill patient : Effect on mortality and strategies for improving nutritional support'.

It is stated that thereafter the applicant worked from 01.08.2009 till 30.06.2013 for a period of 3 years 11 months under Dr. Randeep Guleria in an ICMR Project in another project titled ‘To compare the efficacy of yoga and pulmonary rehabilitation on dyspnea, muscle strength, inflammatory markers and quality of life in patients with chronic obstructive pulmonary disease' and after completion of the same joined another project from 01.07.2013 till 22.06.2017 for a period of 3 years 11 months and 22 days titled 'Obesity and metabolic syndrome :The Role of nutrition, physical activity and inflammation' (DBT projects).

It is contended that in terms of the directives of the Hon'ble Supreme Court in the case of Dr. V.L. Chandra Vs. AIIMS, a proposal was initiated for regularization of research project employees. Since the applicant had completed her 15 years of service with Respondent No.2 in December, 2007, she made an application dated 03.02.2009 to Respondent No.2 for her absorption/regularization to which she received no reply. The applicant sent reminder applications dated 23.02.2009 and 12.03.2009 for the same. The applicant was shocked to receive a response dated 08.04.2009 to her various applications for her absorption/regularization stating that "the case of Dr. Sneh Arora has been considered by the competent authority but it is regretted and the same cannot be acceded to as per rule". The Respondent No.2 rejected the application for absorption/regularization of the applicant based on an AIIMS Circular No. F. No. 97-98/Res.Sec dated 11.09.1997. According to the said Circular, service of the applicant for the period served under fellowship (i.e., from 08.12.1991 till 31.03.2000) was not considered for her absorption under Research Core Cadre.

It is further contended that based on the various representations, the applicant was advised that the period of fellowship must be included for the purposes of absorption under Research Core Cadre and based on this advice, the applicant made another application dated 12.05.2012 for her absorption under Research Core Cadre which was again rejected by Respondent No.2 vide Memorandum No.F.7-2008/SA/RS dated 20.06.2012. The services of the applicant were not regularized even after her completion of 15 years of service with Respondent No.2. The applicant thereafter again made an application to Respondent No.2 for her absorption under Research Core Cadre. However, no response was received even to the same. The applicant thereafter sent reminders dated 12.06.2015 and 03.07.2015 but received no response to the same.

It is submitted that pursuant to various representations made by the applicant, a meeting was held on 08.04.2016 for preparing list for absorption and as per Circular dated 17.04.2001 the services of the applicant were regularized and she was absorbed under Research Core Cadre vide Memorandum dated 21.06.2017 as Scientist-I in the Department of Pulmonary Critical Care and Sleep Medicine after 24 years of continuous service with Respondent No.2. After absorption into the Research Core Cadre, the applicant submitted a letter dated 22.10.2018 stating that since she has worked with Respondent No.2 in various projects continuously since 08.12.1991. The applicant requested that her past services be counted as she had worked for more than 25 years before her absorption and she be granted higher pay grade. Since the applicant received no response to her letter dated 22.10.2018, she again sent a reminder dated 08.12.2018. Respondent No.2 vide letters dated 02.02.2019 and 14.02.2019 rejected the representations dated 22.10.2018 and 08.12.2018.

It is further submitted that the applicant’s services were regularized in June, 2017 and she was covered under the New Pension Scheme (NPS) notified on 22.12.2003 by Government of India, Ministry of Economic Affairs, even if the benefit of her past services with Respondent No.2 since 08.12.1991 was not given to her. The Respondent No.2 was not making available either the New Pension Scheme from 2004 or the Old Pension Scheme to the applicant. The benefits of New Pension Scheme are given to the applicant only after her absorption under Research Core Cadre i.e. June 2017 and not from the date of implementation of the Scheme i.e. 01.04.2004.

The respondents in their counter reply have submitted that the present O.A has been filed by the applicant seeking to count her past period of service as a Project Employee for the grant of Old Pension Scheme or to make applicable the New Pension Scheme to her from its implementation date i.e. 2003/2004. It is submitted that the O.A. deserves to be dismissed on account of the applicant’s willful suppression of important facts and documents as well as for approaching this Tribunal with unclean hands by filing limited and selected documents that are one-sided and favour the applicant and all such documents which may go against her claims have been left out.

It is also averred that the applicant has intentionally not filed the Memorandum dated 21.06.2017 by which her services had been regularized/she had been absorbed in the Core Research Cadre. By virtue of the said Memorandum, it had been made clear to the applicant that her services would be governed by the New Pension Scheme. As per Clause 12 of the said Memorandum, the applicant was required to tender her acceptance of the terms and conditions contained therein which she duly did. Consequently, she joined the services with effect from 29.06.2017. Once the applicant has accepted the said term and conditions and joined the services, she cannot be allowed to make a U-Turn and challenge the said condition, that too at such a belated stage.

It is emphasized in the counter reply that the applicant preferred representations way back in 2018 which came to be dismissed by Memorandums dated 02.02.2019 and 14.02.2019. The said Memorandums have not been challenged. The applicant has only challenged the impugned Memorandum issued which is consequent to the subsequent representations made by the applicant. Drawing support from the aforesaid, it is contended that it is well settled law that subsequent representations cannot extend the period of limitation and the rights of the parties shall stand crystallized on the first occasion itself.

The respondents submit that the applicant was working in the Department of Pulmonary Medicine and Sleep Disorder (PMSD) and was absorbed to the temporary post of Scientist-1 under the Core Research Cadre at the AIIMS in accordance with the decision of the Hon’ble Supreme Court. She assumed the charge of the said post w.e.f. 29.06.2017. As stated above, in terms of the Memorandum dated 21.06.2017 intimating her absorption in the Core Research Cadre, the applicant is governed by the New Pension Scheme. Furthermore, as per Clause 12 of the said Memorandum, the applicant had to tender her acceptance of the terms and conditions of the said Memorandum which had been done by her and in consequence thereof, joined the services with effect from 29.06.2017. Once the applicant has expressly accepted the said term and conditions and joined the services, she cannot be allowed to make a U-Turn and challenge the said condition after a long period of time.

The respondents also draw attention to Clause A-III of the revised Regularisation Guidelines for the Research Staff issued by the respondents on 26.09.2008 wherein it is clearly stated that the past services rendered prior to the proposed regularization will not be counted for any service benefits and the employee concerned will be considered as fresh entrants at the entry level. The Government of India had introduced the New Pension Scheme with effect from 01.01.2004 which was mandatory for all new recruits to Central Government Services. As the applicant was regularized subsequent to said date, the respondents have indicated that the post is pensionable but will be governed by the New Pension Scheme as per provision contained in the Ministry of Finance, Department of Economic Affairs vide Notification dated 22.12.2003.

It is emphasized that the services of the applicant have been regularized after 01.01.2004 and the date of regularization i.e. 29.06.2017 has been taken into consideration for the purpose of admission to the Pension Scheme as the applicant is to be considered as a new entrant on the date of regularization. The representation of the applicant for benefit of Old Pension Scheme at AIIMS was not considered for pensionary benefits under the Old Scheme as she has assumed the charge of the post w.e.f. 29.06.2017.

It is further stated that the temporary/ad hoc service rendered by the applicant cannot be counted towards regular service. Therefore, Old Pension Scheme is not applicable to her case. I am also taken to Office Memorandum dated 12.05.2021 wherein the applicant was informed that her request for migration to Old Pension Scheme from the New Pension Scheme cannot be allowed as she does not fall within the ambit of the Office Memorandum dated 11.06.2020 issued by the Department of Pension and Pensioner's Welfare. Even otherwise, the issue involved in the present case is squarely covered by the judgment of the Hon'ble Delhi High Court in W.P.(C) No. 2597/2021 titled Dr. Sunil Kumar Verma vs. AIIMS wherein the Delhi High Court upheld the decision of this Tribunal denying pension to the applicant under the Old Pension Scheme.

It is reiterated that as per the revised Regularisation Guideline issued by the Institute on 26.09.2008, in pursuance of the Hon'ble Supreme Court’s decision dated 23.04.2003 passed on the basis of an affidavit filed, the respondents are considering the employees working in various research project who have put in 15 years of continuous service, for regularization. As per Clause A-III of the revised guidelines, the past service before the proposed regularization will not be counted for any service benefit and they will be considered as fresh entrants at the entry level. Furthermore, the New Pension Scheme is mandatory for new recruits w.e.f 01.01.2004 and the applicant cannot seek to be governed by the Old Pension Scheme. It is further submitted that as per guideline issued by the Institute on 26.09.2008 Clause A-IV mere completion of 15 years of service will not make them automatically eligible for regularization. If the Screening Committee finds he/she is not suitable/unfit for the post, his/her services will not be regularized. The assertion of the applicant that her services were not regularized on account of AIIMS Circular is denied as the same is not borne from record.

I have heard both the counsels and perused the pleadings on record.

Learned counsel for the applicant based on submissions made in the OA lays emphasis that the applicant was appointed as Research Associate/Project Employee in ICMR long back on 08.12.1991 and following continuous and unblemished service of more than 17 years was regularized vide OM dated 21.06.2017. The learned counsel also contends that denying pensionary benefits for 17 years of uninterrupted unblemished service is not only arbitrary but also violative of Articles 14 and 16 of the Constitution.

Learned counsel further asserts that the approach of the respondents in the instant case is discriminatory inasmuch as in a number of cases pre-regularization service has been taken into account for pension, while denying it to other similarly situated. In this regard, cases of Dr. J.C.Bhardwaj (Scientist-I) and Dr. Sujata Joshi are specifically mentioned wherein their past project service was counted. In support of such contention, Memorandums dated 09.10.2022 and 28.11.2006 are placed on record.

Reliance is also placed on the judgment of the Hon’ble Delhi High Court in Dr. Kulbhushan Sehgal vs. Union of India & Others vide WP(C) No.4171/2011 decided on 24.01.2020 wherein it was directed the petitioner’s past service be counted for the purpose of pensionary benefits. The said judgment is particularly relevant in response to the respondents’ contention that the applicant had accepted the terms of the regularization order (OM dated 21.06.2017) whereby she was treated as a fresh entrant. The learned counsel for the applicant submits that such conditions are unfair given the power equation between the employer and the employee.

Learned counsel for the applicant drawing attention to two judgments – Bhola Nath vs. State of Jharkhand and Others 2026 SCC OnLine SC 129 and Central Inland Water Transport Corporation vs. Brojo Nath Ganguly 1986 (3) SCC 156 emphasizes that an employee in a subordinate economic position has no option to exercise his/her choice but to sign on the dotted line or accept the clause imposed by a State employer, even if they are restrictive and thus the Court must intervene to prevent such cemetery.

Learned counsel reiterating the claims in the pleadings submits that the pension is a continuous and recurring cause of action and as such the plea of limitation raised by the respondents is not tenable. Reliance is placed on the judgments of Sualal Yadav vs. The State of Rajasthan & Others, AIR 1977 SC 2050 and State of Rajasthan & Others vs. O.P.Gupta, 2022 LiveLaw (SC) 785 to bolster such arguments. He also relies upon the following judgments as precedents to support of his contention that past service was counted for the purpose of pension:

Per contra, learned counsel for the respondents, at the outset, draws attention to OM dated 21.06.2017, Clause-5 which specifically stipulated that upon regularization the applicant will be governed by New Pension Scheme which the applicant did not challenge. Learned counsel also placed on the revised Guidelines 26.09.2008, Clause-IV which clearly says that the past services before the proposed regularization will not be counted for any service benefit and they will be considered as fresh entrants at the entry level. The same was reiterated in the OM dated 21.06.2017 which the learned counsel for the respondents alleges that the applicant tried to suppress and as such the OA is liable to be dismissed in limine. Reliance is also placed on Bhaskar Laxman Jadhav & Others vs. Karamveer Kakasaheb Wagh Education Society and Others, (2013) 11 SCC 531.

It is reiterated by the learned counsel for the respondents that the applicant had unequivocally accepted the terms and conditions of appointment stipulated in Clause-12 of the OM dated 21.06.2017, and having accepted the same, has derived the benefits of regularization. The applicant has not challenged the validity of the OM dated 21.06.2017. Having accepted the benefit of regularization, the principle of estoppels applies preventing her from challenging the conditions attached thereto at this belated stage. In this regard, learned counsel draws sustenance from the judgment of the Hon’ble Supreme Court in National Institute of Rural Development vs. Shyam Sunder Prasad & Others 2023 SCC Online SC 197 and the settled law is that past services rendered under the Project without holding a regular sanctioned post cannot be counted for pensionary benefits as brought out clearly in the Hon’ble Supreme Court’s judgments in Parmeshwar Nanda and Others vs. State of Jharkhand and Others (2020) 12 SCC 131, Angrej Kaur vs. State of Punjab 2019 SCC Online P&H 4487 and Director General, Doordarshan Prasar Bharti, Corporation of India and Another vs. Magi H. Desai 2023 SCC OnLine SC 336.

Learned counsel also states that the applicant cannot draw sustenance to Articles 14 & 16 of the Constitution to perpetuate an illegality or to claim the benefit of negative parity. Furthermore, a similar claim based on the OM dated 11.12.2003 was previously rejected by the Tribunal, and the said decision was upheld by the Hon’ble Delhi High Court in Dr. Sunil Kumar Verma vs. AIIMS which was subsequently affirmed by the Hon’ble Supreme Court.

I have given my thoughtful consideration to the submissions made by both sides and have broadly identified the following issues for determination:

So far as the first issue is concerned, it is a well settled principle of service jurisprudence that the qualifying service for pension is accrued only by holding a regular sanctioned entry post. The Hon’ble Supreme Court in Director General, Doordarshan Prasar Bharti Corporation of India vs. Smt. Magi H. Desai (supra) and Parmeshwar Nanda and Others vs. State of Jharkhand and Others (supra) held that adhoc service rendered outside the regular establishment cannot be counted as qualifying service for pension unless such service is expressly recognized or permitted to be counted under the applicable statutory rules and regulations, or pension scheme. However, in the present case, Clause A-III Regulation Guidelines dated 26.09.2008 are explicitly about not counting of his pre-regularization service for any service benefit, treating the regularized employee as fresh entrants. A similar issue was considered by a Division Bench of this very Tribunal in OA No.1021/2020 wherein the applicant which worked in various capacities ever since 1987 continuously claimed the benefit of the Old Pension Scheme upon his absorption on 05.12.2008. The Division Bench vide its order dated 14.10.2020 considered the aforesaid claim and held as follows:

Thus any direction to count such project service is legally not tenable.

So far as the second issue is concerned, there is no doubt that the applicant accepted the offer of appointment dated 21.06.2017, which contained specific terms and conditions stipulating his status as a fresh entrant and her coverage under the New Pension Scheme. The applicant, without showing any dissent against the said conditions, accepted the offer and joined the regular post. While learned counsel for the applicant, placing reliance on the judgments in Bhola Nath vs. State of Jharkhand (supra) and Central Inland Water Transport Corporation vs. Brojo Nath Ganguli & Another (supra) has argued that the inequality of bargaining power renders such terms infructuous, nevertheless it is noted that the applicant neither challenged the validity of order dated 21.06.2017 or the revised Regulation Guidelines dated 2008. As held by the Hon’ble Supreme Court in National Institute of Rural Development vs. Shyam Sunder Prasad & Ors. 2023 SCC Online SC 197, an employee who has accepted the conditions of appointment and failed to challenge those conditions cannot subsequently seek benefits contrary to them.

I have also considered the applicant’s plea of discriminatory treatment citing two cases of Dr. J.C.Bhardwaj (Scientist-I) (supra) and Dr. Sujata Joshi (supra), but I am of the view that it cannot override the statutory provisions governing the claim and as such provisions of Articles 14 and 16 cannot be invoked to enforce negative parity or to claim benefit granted erroneously.

In the light of above discussions, the claim of the applicant for counting of her past service prior to 21.06.2017 under Old Pension Scheme is legally not tenable. Accordingly, the O.A. is dismissed. There shall be no order as to costs.