H.C. Boken vs Union Of India

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The applicants were appointed as Youth Coordinators in the pay scale of Rs.400-950 in the year 1972 or later, in Nehru Yuva Kendra Scheme (NYKS). Such Kendras under NYKS, were subsequently re-organized into an autonomous body known as Nehru Yuva Kendra Sangathan (NYKS) which was formed in the year 1987. The services of the applicants were regularized in this autonomous body in 1995 in pursuance of a judgment of the Hon'ble Apex Court dated 15.11.1994, CA No.4621-27/1989 and batch. The relevant notification was issued on 05.10.1995, which reads as under:

"In pursuance of Hon'ble Supreme Court judgement delivered on 15th November, 1994 in C.A. No.4621-27/89, 4613, 4614, 4615, 4616/10, who joined the Government of India on deputation basis from various State Governments since 1972 and onwards, are placed at the disposal of Nehru Yuva Kendra Sangathan with effect from 01.04.1987 i.e. the date on which the Sangathan came into existence.

The services of these deputationist Youth Co-ordinators will be regularised as under :-

i) From initial appointment as YC in the Department till framing of Recruitment Rules i.e. 25.08.1980, they will be treated as on deputation with Central Government.

ii) From 25.08.1980 or from the date of their joining as Youth Co-ordinator, whichever is later, they will be treated as Central Government employees upto 31.03.1981.

iii) From 01.04.1987 onwards i.e. the date on which the Sangathan came into existence, they will be deemed to have been absorbed in the Nehru Yuva Kendra Sangathan in the pay scale of Rs.2200-4000/-.

The pay & allowances and other terms & conditions of service including terminal benefits of such Youth Co-ordinators who are deemed to have been absorbed in the services of Nehru Yuva Kendra Sangathan will be determined by the existing rules & regulations in consonance with the judgement of the Supreme Court."

Subsequently, one more clarification was issued on 20.11.1995, which reads as under:

"I am directed to refer to your letter No.Admn./AAbs/YC/95-96, dated 10.10.1995 on the above subject and to say that the Youth Co-ordinators (direct/deputationist) have been absorbed in the Nehru Yuva Kendra Sangathan w.e.f. 01.04.1987 on the 'existing rules & regulations'. In other words, these Youth Co-ordinators will be governed by the rules & regulations of Govt. of India as admissible from time to time.

All Youth Co-ordinators who have been absorbed in the Sangathan will be under administrative control of Sangathan and they will draw their pay & allowances from the Sangathan. The decision in respect of remaining issues will be communicated in due course of time."

In accordance with these directions the applicants were paid pension which has since been revised as per subsequent Central Pay Commissions (CPCs), the last such revision being as per 6th CPC.

The applicants plead that instructions in respect of 7 th CPC pensioners have since been issued on 04.08.2016. However, despite this the applicants' pension has not been revised as per 7th CPC. The relevant part of this OM dated 04.08.2016 are reproduced below:

"2.1 These orders shall apply to all pensioners/family pensioners who were drawing pension/family pension before 1.1.2016 under the Central Civil Services (Pension) Rules, 1972, Central Civil Services (Extraordinary Pension) Rules and the corresponding rules applicable to Railway pensioners and pensioners of All India Services, including officers of the Indian Civil Service retired from service on or after 1.1.1973. A pensioner/family pensioner who became entitled to pension/family pension with effect from 01.01.2016 consequent on retirement/death of Government servant on 31.12.2015, would also be covered by these orders."

The applicants had made several representations dated 26.12.2016, 02.08.2017, 21.09.2017, 02.12.2017, 03.01.2018 and 24.04.2018; however, there has been no result so far. Feeling aggrieved, the instant OA has been filed.

The applicants have relied upon a judgment by the Hon'ble Apex Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305 at page 323, which reads as under:

"From the discussion three things emerge : (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution ; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered ; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure."

It is thus pleaded that the pension is a vested right, which the respondents are duty bound to pay to all applicants, who are otherwise eligible for it.

The applicants have relied upon the judgments by the Hon'ble Apex Court in State of Punjab v. Tara Singh Shahi, [(1996) 8 SCC 448] to claim that pension is admissible to them as the conditions prevailing, when NYKS was re-organized into an autonomous body in 1987, shall apply in their case. The relevant part of this judgment reads as under:

"8. What is the binding effect of the gift deed and to what extent it would regulate the conditioner service of the members of the staff was considered by this Court in State of Punjab & Ors.Vs. Dev Dutt Kaushal & Ors.. 1995 (4) Supp. SSC 784=JT 1995 (6) SC 225 by a Bench of which one of us (Hon'ble B.P.Jeeven Reddy, J.) was a Member. The Petitioner in that case had claimed the benefit of retirement at the age of 60 years instead of 58 years on the basis of his being a lecturer in a private institution which was subsequently taken over by the Government under gift deed containing terms and conditions similar and identical to those contained in the gift deed in the Instant case. It was held by this Court that in view of the terms and conditions of the gift deed, it was not possible to accede to the request of the petitioner for being superannuated at the age of 60 years as it was specifically provided in the gift deed that in respect of matters which were not specifically provided for by the gift deed, the Government Rules would apply under which the age of retirement was 58 years. Consequently. the claim of the petitioner was rejected."

The applicants have also relied upon a judgment of the Hon'ble Apex Court in Brij Mohan Lal v. Union of India, (2012) 6 SCC 502, wherein the following observation was made by the Hon'ble Apex Court:

"145. On a proper examination of the above principles, it can be stated without hesitation that wherever the right which is being affected is a basic or a fundamental right, the State cannot be permitted to advance an argument of financial constraints in such matters. The policy of the State has to be in the larger public interest and free of arbitrariness. Adhocism and uncertainty are the twin factors which are bound to adversely affect any State policy and its results. The State cannot in, an ad hoc manner, create new systems while simultaneously giving up or demolishing the existing systems when the latter have even statistically shown achievement of results."

Certain other reliefs in the form of interest for the delays have also been sought. In support of such claim of interest, the applicants have relied upon the following judgments by the Hon'ble Apex Court:

i) S.K. Dua v. State of Haryana & Another, [(2008!) 3 SCC 44;

ii) Vijay L. Mehrotra v. State of U.P. & Others, [(2001) 9 SCC 687].

It has thus been pleaded as per decisions taken in 1987 and 1995, the applicants are pensioners, and this right cannot be denied under the pretext of financial constraints and interest is also payable on account of delays.

The respondents opposed the OA. In particular, the following averment has been made in the counter-reply:

"4. The Government of India OM F.No.3/37/2016-P&PW(A)(ii) dated 4.8.2016 (Annexure-A-3 of the OA), is applicable only to the Government Pensioners and has no application at all to the Applicants in the present O.A. As the present O.A. is based on the said OM dated 4.8.2016, it loses its substratum and therefore the present OA is highly premature, devoid of any merit, and deserves to be dismissed for this reason alone."

It was further pleaded by the respondents that the Department of Expenditure have issued an OM dated 13.01.2017, which specified as under:

"Subject: Pay revision of employees of Quasi- Government Organizations, Autonomous Organizations, Statutory Bodies etc. set up by and funded/controlled by the Central Government - Guidelines regarding.

The employees working in the Quasi-Government Organizations, Autonomous Organizations, Statutory Bodies etc. set up and funded/controlled by the Central Government, are not Central Government employees and , therefore, the benefits implemented by Central Government in respect of Central Government employees as part of their service conditions, are not directly applicable to the employees working in such autonomous organizations. The application of such benefits as given to Central Government employees in respect of employees of such autonomous organizations as well as the manner and conditions governing such application, including sharing of the additional financial implications arising thereon, requires specific approval of the Central Government. The autonomous organizations are expected to manage their affairs in such a fashion that their dependence on Central Government for financial support to meet the extra f inancial implications is minimal, as such autonomous organizations are expected to be financially self-sufficient so as not to cause any extra burden on the Central Exchequer.

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The revised pay scales contained in Parts B & Part C of the SchedulE7 of the CCS(RP) Rules, 2016, shall not be automatically applicable to the employees of Autonomous Organizations. The concerned Administrative Ministry shall consider such cases keeping in vi ew whether these pay scales are justified for the category of staff of Autonomous Organizations based on functional considerations, recruitment qualifications, as well as the applicable pre-revised pay scales. Based on such an examination by the concerned Administrative Ministry, appropriate proposals, if justified, would be submitted to the Ministry of Finance, Department of Expenditure, through their Integrated Finance.

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In regard to the additional financial impact ariSing out of the implementation of the revised pay scales, as provided above, the following parameters shall be kept in view:-"

Thereafter, the Ministry of Youth Affairs and Sports, under whom NYKS operates as an autonomous body, had also issued instructions dated 24.05.2017. This OM dated 24.05.2017, made the following directions:

"d) This approval is only for Revision of Pay in terms of provisions of the Central Civil Services (Revised Pay) Rules, 2016 and other instructions on the subject, as the OM dated 13.01.2017 of the Ministry of Finance, with respect to autonomous bodies, relates to Pay Revision only. This does not cover revision of allowances or pensions, as the Government of India is yet to issue instructions in this regard."

It was pleaded that Govt. of India instructions do not automatically become applicable to autonomous bodies. These bodies have to adopt the same. Applicants worked under NYKS which is an autonomous body and no decision has yet been taken to adopt the 7th CPC's recommendations for their pensioners.

The respondents thus pleaded that no decision has yet been taken in respect of applicability or otherwise of the 7th CPC's recommendations in respect of pensioners of NYKS. Accordingly, the OA is pre-mature and thus not maintainable.

The matter has been heard at length. Shri L.R. Khatana, learned counsel represented the applicants and Shri Y.P. Singh, learned counsel represented the respondents.

It is admitted that the applicants are working in an autonomous body known as NYKS under the Ministry of Youth Affairs and Sports. They had been granted pension as per the notification referred to in para-1 above. This has since been revised as per 6th CPC also.

It is true that such notifications specify that the applicants will be governed by the rules and regulations of the Government of India, as admissible from time to time. However, the Government of India's instructions also have a provision that these are not applicable to autonomous bodies unless adopted by them. Keeping in view various factors, the respective autonomous bodies have to take a conscious decision in respect of application of the same or otherwise, in respect of their staff. For this purpose, separate instructions are required to be issued by such autonomous bodies from time to time.

Accordingly, the declaration that they will be governed by the rules and regulations of the Government of India, as admissible from time to time, necessarily includes an inherent condition that such instructions will become applicable only if the same are adopted by the said autonomous bodies. It, therefore, does not follow that Government instructions as and when issued, shall automatically become applicable upon the autonomous bodies also. The applicants had not been able to produce any such instructions that Government instructions become automatically applicable on the autonomous bodies.

There is no whisper anywhere by the applicants that they have been discriminated against in any way. The Tribunal cannot assume the role of a rule-making body on behalf of respondent-NYKS. This role remains with the autonomous bodies as well as the Ministry of Youth Affairs and Sports in the instant case. They are yet to take a decision in respect of the request of applicants.

It is noted that the Nehru Yuva Kendra Sangathan vide their letter dated 15.12.2016 have issued a letter to the Ministry of Youth Affairs and Sports, duly bringing out the following:

"In view of the above, direction of the Ministry is sought whether to revise the pension of Sh H C Boken along with all such absorbed DYCs and ACTs in accordance with DOPT OM dated 04.08.2016 or to wait for the decision/order of Govt. of India on implementation of 7th CPC recommendations in the Government autonomous bodies."

This letter itself indicates that NYKS is an autonomous body under the Ministry of Youth Affairs and Sports and the decision is still awaited.

When such is the express provision under the instructions dated 13.01.2017 issued in follow up of the 7 th CPC and thereafter in the OM dated 24.05.2017 by Ministry of Youth Affairs and Sports and thereafter a decision has been sought by NYKS vide their letter dated 15.12.2016, the instant OA is not maintainable. It is pre-mature in the sense that there is no rule which exists under which the applicants can be granted any relief in respect of pension as per 7th CPC. The various judgments relied upon by the applicants are in a different context and as such those ratios are not applicable here.

Accordingly, the OA is dismissed being devoid of merit. However, the respondents are directed to take relevant factors into account and take a decision in a period of six months from the date of receipt of a certified copy of this order as to whether 7th CPC's recommendations in respect of pensioners are to be adopted or not to be adopted or are to be adopted with certain modifications.

There shall be no order as to costs.