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Judgment
S.
No.",Name,"Parent
Organisation","Date of joining in
Parent Deptt./Post",,"Date of
joining DRT
on
deputation","Post on
which
joined on
deputation","Date of
absorption in
DRT
(1),(2),(3),(4),,(5),(6),(7)
1,"Sh. Pravin
Dattatraya
Patil",MELTRON,04.08.1987,LDC,14.05.2003,Assistant,05.10.2005
2,"Sh. C.M.
Watkar",MELTRON,12.10.1987,LDC,30.05.2003,UDC,26.10.2005
3,"Sh. Kamlakar
N. Hedau",MELTRON,22.01.1993,LDC,24.02.2003,UDC,26.10.2005
S.
No.","Name of the
employee","Designation at the
time of absorption","Date of
Joining","Name of the
Present
Organisation","Date of
absorption",,
1,Sh. B.P. Joshi,Assistant,19.08.1996,"Gujrat Co-op
Oil Seeds Ltd",07.06.2005,,
2,Sh. S.J. Vaghel,"Stenographer
Gr. „C‟",01.04.1999,"Civil Supplies
Corporation
Ltd.",07.06.2005,,
3,Sh. G.J. Dave,Assistant,05.10.1999,"Gujrat Co-op
Oil Seeds Ltd",07.06.2005,,
4,Sh. R.N. Dave,"Accounts
Assistant",11.10.1999,"Civil Supplied
Corporation
Ltd.",07.06.2005,,
5,"Sh. Anil
Sharma",Court aster,05.10.1999,"Gujrat Co-op
Oil Seeds Ltd.",07.06.2005,,
6,Sh. A.P. Nimje,LDC,15.10.1999,"Civil Supplies
Corporation
Ltd.",07.06.2005,,
7,Sh. O.P. Pende,"UDC cum
Cashier",31.12.2002,"Cement
Corporation of
India Ltd.",07.06.2005,,
“17. The word “new entrant†has got a definite meaning, a person, who enters recentlyâ€. A person already in service either as",,,,,,,
contingent staff or temporary staff continuously and absorbed in permanent establishment on or after 01.01.2004 cannot be termed as,,,,,,,
“new entrant' into service. The new Pension Scheme can be applied only to persons appointed for the first time as casual or temporary or,,,,,,,
permanent employee on or after 01.01.2004.â€,,,,,,,
In such view of the facts and law, learned counsel for the applicants has argued that the applicants are entitled for the relief sought in the present OA",,,,,,,
as they deserve to be treated and extended the same benefits as the applicants in the case of Bhavesh Prahladbhai Joshi (supra) were treated and,,,,,,,
benefits were extended to them.,,,,,,,
Per contra, learned counsel for the respondents though does not dispute the fact, however, has submitted that the applicants are not entitled for the",,,,,,,
relief as the Order/Judgment of the Ahmedabad Bench of this Tribunal was applicable to the applicants in the case of Bhavesh Prahladbhai Joshi,,,,,,,
(supra) and not to all including the applicants herein. He has further submitted that Government also does not permit counting of service rendered,,,,,,,
under the public sector undertaking for financial benefits in the Govt. of India. He has further added that in view of the instructions of DOP&T‟s OM,,,,,,,
dated 26.7.2005, the benefits of past service was not allowed and the applicants were placed under the new Pension Scheme as being the new",,,,,,,
incumbents. Though the learned counsel for the respondents has not argued and raised the objection of limitation, however, while going through the",,,,,,,
counter reply, we find that the respondents in their counter reply have taken an objection that the OA is barred by limitation, delay and laches. It is",,,,,,,
asserted therein in the counter reply that in view of the provisions of Section 21 of the Administrative Tribunals Act, 1985, if the applicants were",,,,,,,
having any cause of action at all, the applicants were required to approach this Tribunal within one year of such cause of action in view of provisions",,,,,,,
of Section 21 of the Act ibid. The reliance in this regard is made on the law laid down by the Hon‟ble Apex Court in the case of S.S. Rathore,,,,,,,
vs.State of M.P., reported in AIR 1990 SC 120. It is further asserted that representation repeatedly given to various authorities do not furnish fresh",,,,,,,
cause of action. Reliance in this regard is made on the judgment of the Hon‟ble Apex Court in the case of State of Haryana and others vs. Miss,,,,,,,
Ajay Walia, reported in JT 1997(6) SC 592. Counter reply also contains that the Hon‟ble Supreme Court has laid down in the case ofE x-Captin",,,,,,,
Harish Uppal vs. UOI, reported in JT 1994 (3) 126, that delay defeats equity and the court should help those who are vigilant and not those who are",,,,,,,
indolent. Reliance in this regard is also made to the decisions of the Hon‟ble Apex Court in the case of State of Punjab vs. Gurdev Singh, reported",,,,,,,
in (1991) 4 SCC 1 and UOI vs. Ratan Chandra Samanta, reported in JT 1993 (3) SC 418 etc. it is also asserted in the counter reply that the Hon‟ble",,,,,,,
Supreme Court in the case of D.C.S. Negi vs. UO Iin SLP (C) CC No.3709/2011 has ruled that cases which are time barred in view of the,,,,,,,
provisions of Section 21 of the Administrative Tribunals Act, 1985 should not be admitted. However, the learned counsel for the respondents does not",,,,,,,
dispute the fact that the applicants in the case of Bhavesh Prahladbhai Joshi (supra) were similarly placed. They were also working in public sector,,,,,,,
undertakings prior to joining the respondents/DRT on deputation and they also joined the respondents on deputation on various dates during the period,,,,,,,
from 19.8.1996 to 31.12.2002 and all of them were absorbed w.e.f. 7.6.2005. It is also not disputed by the respondents that the Order/Judgment of the,,,,,,,
Ahmedabad Bench of this Tribunal in Bhavesh Prahladbhai Joshi‟s case (supra) is a judgment in rem and directions therein was for the applicants,,,,,,,
therein as well as for similarly placed persons and the said judgment has attained finality.,,,,,,,
In rejoinder, learned counsel for the applicants has referred to the OMs dated 17.2.2020 and 11.6.2020 issued by the Ministry of Personal, Public",,,,,,,
Grievances and Pension, Department of Pension and Pensioners‟ Welfare wherein it is observed that in many of cases process for recruitment had",,,,,,,
been completed before 1.1.2004 but the employee(s) joined the Government service on or after 1.1.2004, also the cases where the selection process",,,,,,,
was over and offer of appointment were issued to some before 1.1.2004 and where as offer of appointments were issued on or after 1.1.2004 due to,,,,,,,
administrative reasons or constrains etc. and keeping in view various situations, the matter has been required to be considered afresh. The OM",,,,,,,
No.28/30/2004-P&PW (B) dated 11.6.2020 also has been issued keeping in view the representations received by the Department from various,,,,,,,
employees who joins under NPS after 1.1.2004 but before 28.10.2009. Learned counsel for the applicants has argued that from the aforesaid OMs, it",,,,,,,
is evident that Nodal department itself has considered the representations upto the year 2020 keeping in view various representations being received,,,,,,,
from different departments and employees and, therefore, the present OA is within limitation. She has further argued that similarly placed persons",,,,,,,
approached the Ahmedabad Bench of this Tribunal in 2012 vide OA No.405/2012 and the applicants have approached this Bench of the Tribunal in,,,,,,,
2012 vide OA No.2893/2012 and the Ahmedabad Bench passed the Order/Judgment on 1.12.2015 in the said OA whereas this Tribunal passed the,,,,,,,
Order on 8.5.2014 in the OA of the applicants. She has also argued that if the judgment dated 1.12.2015 has been given effect to in the case of,,,,,,,
applicants in Bhavesh Prahladbhai Joshi’s case (supra), there has been no reason or justification for the respondents not to extend the same",,,,,,,
benefits to the applicants herein as well and that too, when this Tribunal has directed the respondents vide Order/Judgment dated 8.5.2014 in the first",,,,,,,
round of litigation at the end of the applicants herein to consider the applicants‟ claim and to pass an appropriate order. She has further submitted that,,,,,,,
the order dated 9.8.2016 and/or impugned orders are cryptic and without any reason and, therefore, the same are liable to be quashed.",,,,,,,
We have heard the learned counsels for the parties and we have also perused the pleadings on record.,,,,,,,
From the aforesaid facts, particularly the service profile of the applicants in the present OA and those of the applicants in Bhavesh Prahladbhai",,,,,,,
Joshi‟s case (supra), it is evident that applicants in the present OA are similarly placed as the applicants in the case of Bhavesh Prahladbhai Joshi",,,,,,,
(supra). It is an admitted fact that the benefits of the Order/Judgment of the Ahmedabad Bench of this Tribunal in the case of Bhavesh Prahladbhai,,,,,,,
Joshi (supra) has been accorded to the applicants therein. It is also undisputed that for the purpose of grant of benefit of MACP, the respondents",,,,,,,
have counted the services of the applicants in the relevant grade from the date of their initial appointment on deputation basis. However, for the",,,,,,,
benefit of old Pension Scheme, the respondents have treated the present applicants differently keeping in view the dates of their absorption, i.e. in the",,,,,,,
year 2005. It is also found that the applicants have been appointed under the respondents initially in the year 2003 may be on deputation basis,",,,,,,,
however, in accordance with the relevant rules and instructions and on being selected therefor by the respondents and the process of their absorption",,,,,,,
has also started in the year 2003 keeping in view the letters dated 30.10.2003 and 5.11.2003 from the landing department, i.e., MELTRON. Moreover,",,,,,,,
the respondents have taken a conscious decision to consider the representations of the various employees and from various departments and vide a,,,,,,,
policy decision vide OM No. 28/30/2004-P&PW (B) dated 11.6.2020. In view of the matter, we are of the considered view that the objection taken by",,,,,,,
the respondents in their counter reply to the effect that the present Original Application is barred by limitation, delay and laches, is not sustainable in",,,,,,,
the eyes of law. The judgments rendered and relied upon by the respondents in their counter reply to support their such objection are not applicable in,,,,,,,
the facts and circumstances of the present case. We also find that the action of the respondents in treating the applicants differently than the similarly,,,,,,,
placed applicants in the case of Bhavesh Prahladbhai Joshi (supra), is arbitrary, discriminatory and in violation of provisions of Article 14 of the",,,,,,,
Constitution of India. Impugned action/order(s) of the respondents is violation of law laid down by the Hon‟ble Apex Court inA mrit Lal Berry,,,,,,,
(supra), Uttaranchal Forest Rangers†Asso. (Direct Recruit) (supra), Inderpal Yadav vs. Union of India, reported in (1985) 2 SCC 648, and",,,,,,,
Full Bench Judgment of this Tribunal in C.S. Elias Ahmed (supra).,,,,,,,
In view of the aforesaid, the OA is allowed. The impugned orders are quashed and set aside. The respondents are directed to consider the claim",,,,,,,
of the applicants afresh and extend the benefits inline as extended to the applicants in the case of Bhavesh Prahladbhai Joshi (supra). The,,,,,,,
respondents are further directed to pass the necessary orders in this regard and release the benefits as required after passing of such order(s) as,,,,,,,
expeditiously as possible and in any case within 12 months of receipt of a copy of this Order.,,,,,,,
The present OA is allowed in the aforesaid terms. No order as to costs.,,,,,,,