Ishwar Singh Phogat vs Union of India

Jasbir Singh, J.—This appeal has been filed against judgment dated 21.1.2014 passed by the learned Single Judge dismissing Civil Writ Petition No. 1627 of 2012 filed by the appellant.

Admittedly, the appellant was taken into service as Physiotherapist under the Central Government Sponsored Scheme on 27.10.1989. He continued to work as such under that Scheme. The said Scheme was wound up in the year 2006. Prior thereto, in the year 2005, the appellant and other similarly situated employees filed an application before the Central Administrative Tribunal (In short "Tribunal") at Chandigarh making a prayer that they be treated as employees of the Central Government qua their right to salary, provident fund, gratuity, leave encashment and other service benefits. The said application was decided in their favour on 18.4.2005 by placing reliance upon the judgment of the CAT Calcutta Bench in the case of Jai Kishore Maity v. Union of India and Others (O.A. No. 1241 of 1996). They were held entitled to get similar relief as was given to the employees working under the said Scheme in the States of West Bengal and Karnataka. To say so, reliance was placed upon the orders passed by the Tribunal of Calcutta and Bangalore Benches. To give relief, following passage from the judgment, passed by the Tribunal of Bangalore Bench, was relied upon when passing that order:-

O.As Nos. 1626 and 1638 to 1643 of 2001 are allowed. The respondents are directed to treat the applicant as the employees of the Central Government and grant them all the reliefs that they are entitled to in accordance with the rules governing the employees of Central Government. Compliance in three months. No costs.

It was directed that the appellant and others be treated as employees of the Central Government.

At that time, SLPs against the judgment passed by the Central Administrative Tribunal of Bangalore and Calcutta Benches and the judgment of the High Court of Calcutta were pending and impugned before the Supreme Court.

The order was made subject to ultimate outcome of the order to be passed in the pending appeals.

Thereafter, it appears that qua those, directions were issued by the Supreme Court in the order dated 10.11.2006, District Rehabilitation Officer and Others v. Jai Kishore Maity (Appeal (Civil) No. 7999 of 2002). Relevant portion of the order passed by the Supreme Court reads thus:-

A question has arisen as to whether the employees are the employees of the State of West Bengal or the District Rehabilitation Centres. In view of the order proposed to be passed by us, it may not be adverted to at this state as we are of the opinion that the projects should be continued by the State of West Bengal and the State of Karnataka as the case may be. Even if the States think it fit to close down the project, the services of the employees working in the rehabilitation centres should be continued.

In a case of this nature, however, we think it expedient to invoke our jurisdiction under Article 142 of the Constitution of India. The Central Government has categorically stated that those employees who would opt for employment under the Central Government may be accommodated in its ongoing projects. Pursuant thereto or in furtherance thereof, the concerned employees who have affirmed affidavits showing inclination to serve any project under the Central Government, may be absorbed by it. Services of those employees may be utilized by the Central Government in any of its project. They would, however, be continued to be paid salaries on the same scale of pay. Their experience may also be considered for the purpose of determination of their seniority, subject of course to any rule which is in operation in the field. All other financial benefits including those of superannuation benefits should be protected. It is, however, clarified that such employment under the Central Government would be temporary and personal posts which would come to an end with the retirement of the concerned employees.

Similarly those Respondents who have opted for their employment with the State of West Bengal or the State of Karnataka, as the case may be would be absorbed by the States of West Bengal and Karnataka, as the case may be, on the same terms and conditions as referred to hereinbefore.

Keeping in view the nature of order passed by us, it is clarified that the same shall not be treated as a precedent. We also make it clear that these orders have been passed by us keeping the stand taken by the parties. These appeals are disposed of with the aforementioned directions. There shall be no order as to costs.

It is clear from the order that the employees working under the Central Government Scheme were ordered to be adjusted according to their option under the Central Government or State Government as per requirement. Their adjustment was made subject to any rule, as may be operational in the field. It was further said that the order has been passed on the basis of respective stands taken by the parties and shall not be treated as a precedent. No finding was given whether employees, were the employees of the State Governments of West Bengal and Karnataka, as was claimed by the appellants in those appeals.

It is necessary to mention here that the order dated 18.4.2005 was passed by the Tribunal at Chandigarh by placing reliance upon the order passed by the Calcutta and Bangalore Benches of the Tribunal which ultimately reversed by the Supreme Court in the judgment, referred to above. Those employees went to the Supreme Court claiming that they were employees of the State Government. However, no finding was given, rather the matter was disposed of on the basis of agreed stand taken by the parties.

So far as the appellants are concerned, they were declared employees of the Central Government vide judgment dated 18.4.2005 passed by the Central Administrative Tribunal at Chandigarh. They never agitated against that judgment, rather they accepted it. In the year 2007, they filed an application i.e. C.P. No. 53 of 2007 before the Tribunal claiming that directions be issued to the State Government to absorb them in service and give them other benefits as were given to those employees who were parties before the Supreme Court in the case of Jai Kishore Maity (supra). During pendency of that application, the State of Haryana passed an order on 10.3.2008, ordering absorption of the appellant in service under the following terms & conditions:-

Whereas the issue pertaining to absorption of employees of the District Rehabilitation Centre, Bhiwani was under consideration of the government, the Governor of Haryana is pleased to accord sanction for the absorption of the employees working in the District Rehabilitation Centre, Bhiwani in the Department of Social Justice & Empowerment, Haryana on the following terms and conditions:-

i) The staff of District Rehabilitation Centre, Bhiwani shall be given a separate identity. They will be governed under the prevalent Pension & Gratuity Rules.

ii) All the posts of District Rehabilitation Centre, Bhiwani shall be kept in diminishing cadre.

iii) They would be paid salaries on the same scale of pay and would also be entitled to regular increments and other benefits as admissible to Haryana Government employees as heretofore.

iv) The Director, Social Justice & Empowerment Deptt. Haryana shall be the over-all controlling officer of District Rehabilitation Centre, Bhiwani as Project Coordinator of the Project in respect of all matter pertaining thereto.

v) The expenditure shall be met from the major head "2235-Social Security and Welfare-02-Social Welfare-101-Welfare of Handicapped-(vii)-grant-in-aid to Voluntary Organizations working in the field of handicapped Welfare-(92)-5 District Handicapped Welfare Centre-(Non-Plan).

vi) The absorption of the employees of District Rehabilitation Centre Bhiwani in the Department shall not be treated as a precedent.

In the absorption order, it is specifically stated that the staff working in District Rehabilitation Centre at Bhiwani shall be given a separate identity and will be covered under the Pension & Gratuity Rules. It was ordered to be diminishing cadre. Pay and salary was to be paid at par with the Government employees. It was further said that absorption of those employees would not be treated as a precedent in future. Without any murmur, the above terms & conditions were accepted by the appellant and after joining under that order, he retired on 31.3.2008. In this way, he worked with the Government only for a period of about 21 days. As per the rules, prevalent at that time, after retirement the appellant was given benefits under the new Contributory Provident Fund Scheme as applicable w.e.f. 1.1.2006. However, by filing representations, he claimed that he be given pensionary benefits under the old scheme by giving him benefit of the past service which he rendered before his absorption with the Haryana Government. When no action was taken, he filed an application before the Tribunal, which was dismissed on 7.7.2011 stating that the appellant was, in no manner, employee of the Central Government having been absorbed in the State services and as such, the Tribunal has no jurisdiction to deal with the matter. The appellant came to this Court by filing Civil Writ Petition No. 1627 of 2012 impugning order dated 1.2.2011 vide which a clarification was issued that the appellant shall not be entitled to get benefit under the Scheme which was in operation before 1.1.2006. He also impugned order dated 30.8.2011 vide which recovery was ordered to be made qua disbursement of leave encashment amount counting entire service of the appellant.

In the impugned judgment, recovery of amount has been set aside and accordingly to that extent no grievance remains with the appellant.

Counsel for the appellant has vehemently contended that entire service of the appellant be counted and he be given pensionary benefits as per the Scheme which was in operation before 1.1.2006.

In view of the facts mentioned above and to be stated hereinafter, this Court is not inclined to accept that prayer. It is an admitted fact that the Tribunal vide order dated 18.4.2005 held that the appellant and other similarly situated employees were the employees of the Central Government as was ordered by the Calcutta and Bangalore Benches of the Central Administrative Tribunal. The judgments passed by the above Benches came up for consideration before the Supreme Court in the case of Jai Kishore Maity (supra) and were set aside. However, at the same time, no finding was given that the employees working under the said Scheme were employees of the State Government and order was passed on the basis of stand taken by the parties in that litigation. With a view to protect future of the employees working under the Special Scheme, option was given to opt for the Central or State services and they were to be absorbed as per rules in operation at that time. It was also stated that the order, so passed, be not treated as a precedent. If that is so, the appellant cannot get any benefit of that order. The order passed in their favour by the Tribunal on 18.4.2005 was not challenged and had become final between the parties. Furthermore, when the appellant and others were absorbed in State services on 10.3.2008, the terms & conditions put up by the Government were never agitated, rather accepted and after passing that order, the appellant retired from service within 21 days. In the order dated 10.3.2008, it was specifically stated that the employees like the appellant will be covered by the prevalent Pension & Gratuity Rules and not the Rules which were in operation after 1.1.2006. Even after retirement, that order was not challenged by the appellant. If that is so, at this stage, it is not open to the appellant to claim benefits contrary to the terms & conditions under which he was absorbed in the State services.

No case is made out to cause interference by this Court in the present appeal.

Dismissed.