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Judgment
By Hon'ble Mr. Pradeep Kumar, Member (A)
Heard Sh. Padma Kumar S., learned counsel for applicant and Sh. R.K.Sharma, learned counsel for respondents.
The applicant brought out that he has served Army Medical Core from the year 1973 to 1998 and retired in January 1998. Thereafter, he was engaged vide office order dated 11.05.2000 by the respondents on re-employment basis w.e.f. 27.04.2000 in the pay scale of Rs.4000-100-6000 for a period of six months or till attaining the age of 65 years or till regular incumbents are appointed, whichever is earlier. It was also specified that the instructions contained in the Central Civil Services (Fixation of Pay of Re-employed Pensioners) order 1986 and further instructions issued from time to time shall be applicable. Thereafter the age for ending of this engagement was revised to 62 years vide corrigendum issued on 02.11.2000. He continued to draw increments in this scale.
However, when he reached at the stage of Rs.4300 his basic pay was reduced to Rs.4000 on the ground that re-engagement by the respondents was on contractual basis and he was to be given only the lowest of the pay scale. Feeling aggrieved, the applicant approached the Tribunal through OA No.2183/2005 which was OA No.2006/2016 decided on 15.12.2006. The relevant portions of this judgment are reproduced below:
"9. The original order was passed on 13.4.2000 along with other ad hoc employees. Since the case of the applicant was on the basis of re-employment, after having retired from defence service, his case cannot be comparable with others. Originally he was given appointment for a period of six months, which was extended from time to time. Till date, not only this, he was also given increments year by year and in 2003, he received the salary of Rs.4300/. Had the respondent-authorities treated him to be an ad hoc employee, they would not have granted him yearly increments by raising his scale of pay from Rs.4000/- to Rs.4300. Since his case was on the basis of re-employment, after his retirement from defence, it cannot be compared with the other employees, who had been engaged on contractual basis.
Much stress has been laid by the respondents to the order dated 08.10.2003, in which it was stated that the service of the applicant was extended for a period of 89 days with effect from 1.7.2003. By the time the order was passed, 89 days had already expired. Therefore, no reliance can be placed on this order. There is no dispute that the applicant has been working from the year 2000 till date. He has also been given increments and GPF subscription of Rs.250/- and license fee of Rs.120/- was being deducted from his salary.
When the respondents proposed to reduce the scale of pay from Rs.4300/- to Rs.4000/-, they should have issued a show cause notice about their intention for such reduction. Without observing and following the principle of natural justice, abruptly they should not have reduced such scale of pay. Accordingly, we hereby direct the respondents to pay Rs.4300/- which was earlier paid to him with effect from 1.7.2003 and continue to grant him regular increments till such post is filled up on regular basis or till he attains the age of 62 years, whichever is earlier."
Thus, it was held by the Tribunal that the re-engagement was on the basis of re-employment after having retired from Army service. Accordingly, his case is not comparable to other freshly appointed contractual employees and he was given regular pay scale along with increments also.
Subsequently, an order was passed by the respondents on 19.12.2011 to the effect that the pre-revised pay scale of Rs.4500-7000 is granted to the applicant w.e.f. April 2002 and this order indicated that the applicant is working on contractual basis. Feeling aggrieved, the applicant had approached the Tribunal again through OA No.713/2011 which was decided on 15.02.2012. The relevant para of this judgment are reproduced below:
"2. Be that as it may, we direct the respondents to rectify the typographical error in the order dated 19.12.2011 and replace the word "contract basis" by "re-employment". Rest of the order dated 19.12.2011 appears to be in order and the applicant is satisfied with it. In fact, with the issuance of the letter dated 19.12.2011, the major grievance of the applicant has already been met with.
In the circumstances, we direct the respondents to carry out the necessary typographical correction in the order within a period of four weeks and work out the arrears, etc. to be paid to the applicant on account of passing of the said order dated 19.12.2011 in another period of four weeks thereafter.
With the above directions, the OA stands allowed. No order as to costs."
Thus, it was decided that the applicant is not on contractual employment but on re-employment basis.
Thereafter, the applicant was not granted benefits under MACP Scheme and feeling aggrieved he had again approached the Tribunal by filing OA No.1690/2011 wherein the judgment was pronounced on 25.07.2012. The relevant para of the judgment is reproduced below:
"8. It is seen from Annexure A-2 that the respondents had clearly stated that the applicant had been appointed on re-employment basis, though for a short period only first, but such re-employment has been continued again and again thereafter. Para-9 of Annexure-I of the MACP Scheme cited above clearly covers the cases of persons whose entry has been on regular basis, on re-employment basis. Though the applicant was not appointed on a regular basis, but he already has the protection of the judgment of this Tribunal dated 05.12.2006, stating that the respondents shall continue to grant him regular increments till such post is filled up on regular basis, or till the applicant attains the age of 62 years, whichever is earlier, which the Respondents had not challenged, and which has become final, and in compliance of which the respondents had issued the consequential order dated 24.03.2008, Annexure A-4, specifically stating that he would be eligible for all service benefits till the post which he is occupying is filled up on regular basis, or till he attains the age of 62 years, whichever is earlier.
Since the MACP Scheme itself provides for grant of MACP benefits in the case of regular service, which is on re-employment basis, and the applicant before us is working almost on a regular basis, since he is already in receipt of all service benefits including increments by a combined reading of the orders of this Tribunal and the consequential orders issued by the respondents, it cannot be said that his service w.e.f. 27.04.2000 onwards would not qualify for the purposes of being considered/counted as regular service under the MACP Scheme. Therefore, it is held that the applicant became eligible for his first MACP benefit on 27.04.2010, when he had completed 10 years of his re-employment, which has all the attributes of regular service as required under the MACP Scheme.
In the result, the OA is allowed in view of the above observations, but there shall be no order as to costs."
The Tribunal has, therefore, upheld that the employment which was on re-employment basis and had continued again and again and regular increments were also granted. He was, therefore, taken to be in receipt of service benefits including increments and accordingly, MACP benefit was also granted.
Since the applicant was to be in service till he attained the age of 62 years, he made a representation vide his letter dated 24.08.2015 that he is going to retire on 31.01.2016 but he has not received any official intimation from the office to submit requisite retirement papers. This was disposed off by the respondents vide their office memorandum dated 18.09.2015 with the following directions:
"With reference to your letter dt. 24.08.2015 and 7.9.2015, it is informed that as per terms & condition of your appointment vide office order No.552 dt. 11.05.2000 and corrigendum order dt. 02.11.2000 of DHS, GNCTD, the service period shall stand terminated on filling up of the post of (ECG Technician) by regular incumbent or till your attaining the age of 62 years (on 23.01.2006 A/N) whichever is earlier.
As such all the requisite steps in this regard shall be taken in due course of time and shall be conveyed to you accordingly."
Thereafter, the applicant had kept on reminding the respondents, however, the respondents vide their letter dated 28.04.2016 finally advised as under:
"Refer to your letter dt. 07.12.2015, it is to inform you that your request was forwarded to finance deptt for advice in the matter. The financial (Account) Deptt, advice that the Department to examine the proposal in accordance with "the terms and conditions of the contract engagement of the person concerned and as per the existing orders/guidelines of the Government of India on the subject".
In view of the above, the various terms & conditions of contract of appointment & OM dt. 30.12.2011 issued by Finance (Account) Deptt. were examined and no term & condition of retirement benefits has been found."
Since the grant of retiral dues was refused, this is the grievance being ventilated in the instant OA.
The respondents drew attention to para 4.7 of their counter which reads as under:
"In reply to para 4.7 it is submitted that the pay of Sh. Mahender Singh, ECG Technician (Contractual) was restored after the directions of the Hon'ble Tribunal. I wish to clear here that the Ex-Official was appointed as ECG Technician on contract basis through an interview. This appointment was on contract basis, not Re-employment to an Ex-Serviceman on regular service. Re-employment to anyone, either retired civilian officials or Ex-Servicemen from Army, Navy and Air Force, may never be treated as an appointment on regular basis."
The respondents further drew attention that the terms and conditions of the applicant were specified vide office memorandum dated 13.04.2000 according to which the instructions contained in the Central Civil Services (Fixation of pay of Re-employed Pensioners) order, 1986 and instructions issued from time to time are applicable in the instant case.
The respondents pleaded that since this is the case of re-engagement of a retired defence personnel and the terms and conditions as contained at the time of initial re-engagement cannot be altered. Accordingly, applicant is not eligible for grant of retiral dues including pension etc. Respondents also drew attention to the Apex Court judgment as under:
(1) Retd. Armed Forces Medical Association and others vs. Union of India and others, (2006) 11 SCC 731 (I) - The respondents pleaded that as per this Supreme Court judgment the nature of engagement which in the instant case is contractual appointment cannot be changed.
(2) U.P. Land Development Corporation & Anr. vs. Mohd. Khursheed Anwar & Anr., AIR 2010 SC 2287- Respondents pleaded that in this judgment Hon'ble Apex Court had held that employment which by nature is temporary or contractual and where this status did not change during the course of entire said employment, cannot be altered subsequently.
In view of the foregoing the retiral dues and pension, as claimed in the OA, is not admissible.
The applicant brought out that the instructions of Central Civil Services (Fixation of pay of Re-employed Pensioners) order, 1986 pertains to fixation of pay in respect of such re-employed persons and does not preclude payment of retiral dues or pension once such re-employment is over. Further, the MACP has already been granted to the applicant and the policy directives dated 19.05.2009 in respect of MACP specify that "Casual employees, including those granted 'temporary status' and employees appointed in the Government only on adhoc or contract basis" shall not qualify for benefits under the aforesaid Scheme."
Having been granted MACP benefit, albeit at the instance of Tribunal (para 5 supra), it is to be taken that the applicant is not covered in the exceptions specified in MACP policy. It, therefore, follows that applicant has attained the status of a regular employee.
Since by virtue of his 16 years of re-employment with the respondents, he has attained his eligibility for retiral dues and pension and this was recognised when he was granted MACP benefit, and the issue that he was re-employed is already decided and therefore he is eligible for grant of retiral dues and pension.
Matter was heard at length. Applicant is a retired Army Medical Core personnel and since there was a need by the respondents, he was engaged on re-employment basis in a related field in the health department under the respondents. He had continued to serve them for a continuous period of 16 years and was eventually retired on 23.02.2016 on attaining the age of 62 years.
As regards the nature of engagement, the cases decided by the Tribunal as mentioned in para 2, 3, 4 and 5 above, clearly brings out that his engagement was on re-employment basis which is taken to be very distinct from those who are on fresh contractual appointment. He was granted regular pay scales along with annual increments. When the increments were denied at certain stage the matter was adjudicated by the Tribunal and not only restoration but continuation of all annual increments was directed. Any intentional or unintentional mention by the respondents that the applicant was on contract basis, was also directed to be corrected as on re-employment basis by the orders of the Tribunal. The MACP benefit, which was denied by the respondents, was also granted as a result of adjudication by the Tribunal. This entire sequence of events clearly establishes that all attributes of a regular employee were available and implemented in respect of the applicant throughout his 16 years of re-employment with the respondents.
It, therefore, stands to logic that he should get the benefits of a regular employee on his retirement also in the form of retiral dues and pension. In fact the expectations of such a treatment being accorded to him, was also raised in the office memorandum issued by the respondents on 18.09.2015.
The plea of the respondents that applicant is not eligible for such retiral dues and pension is, therefore, not acceptable. In view of the foregoing, the OA is allowed and the respondents are directed to extend the retiral dues as well as pension within a period of eight weeks from the date of receipt of a copy of this order. No order as to costs.