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Judgment
Hon’ble Dr. Chhabilendra Roul, Member (A)
The present OA has been filed by the three applicants, namely Sant Kumar, Raj Pal and Ajay Kumar, Post Graduate Teachers under the Directorate of Education, Govt. of Delhi, seeking direction to the respondents to grant benefits of Old Pension Scheme (OPS) to the applicants.
The DSSSB advertised for the posts of TGT Social Science (Post Code 012/2002) in the year 2002. The examination for the said posts was conducted by the DSSSB on 16.03.2003. The results of the said examination ware declared by the DSSSB on two different dates; one was declared on 16.06.2003 and the other was declared on 23.01.2004. Applicant no. 1 was appointed on 19.05.2004 (Joining date 12.08.2004); applicant no. 2 was appointed on 08.03.2004 (Joining date 12.08.2004) and applicant no. 3 was appointed on 08.03.2004 (Joining date 29.09.2004). After joining in the said posts, the three applicants started to subscribe to the New Pension Scheme (NPS) which has came into force at that time. They continued to subscribe to the NPS till date. The applicants submitted their representations to the respondents to include them in the OPS as their appointment was pursuant to the advertisement prior to 01.01.2004 and their batch-mates whose results were declared earlier and who joined in the Education Directorate prior to 01.01.2004 have enjoyed the benefits of OPS. They pleaded that the GNCTD has given similar benefits to 33 employees in pursuance to order dated 08.03.2018 of this Tribunal in OA no. 1022/2018 tilted Balvir Yadav & Others Vs, GNCTD & Others, and they prayed that similar benefits may be extended to them as they are similarly placed. The respondent no. 2 vide order dated 29.12.2020, rejected the claim of Raj Pal, one of the applicants. Being aggrieved the applicants have came together to file this OA in this Tribunal.
Notices were issued to the respondents who have filed their counter reply. The applicant has also filed rejoinder to the counter reply of the respondents.
The applicants in their pleadings and arguments by their counsel have taken the ground that the applicants should not be discriminated by denying them the benefits of the OPS because some of the candidates of the recruitment process for the post code 012/2002 have already been given such benefits. To buttress his assertion, the counsel for the applicants has cited aforesaid order dated 08.03.2018 passed by this Tribunal in Baldev Yadav (supra) case. The said order has relied on the order of coordinate Bench of this Tribunal in Yogesh Kumar & Others Vs. MCD & Others in OA no. 2045/2010 dated 16.11.2011. The counsel for the applicants further averred that the applicants joined late not due to their fault or negligence, but because of the administrative delay in declaring the results in lots and issuing appointment letters in batches to the selected candidate of the same recruitment process.
The respondents through their counter affidavit and their counsel during arguments have asserted that the delay was due to administrative exigencies. There was no deliberate or intentional act on the part of the respondents to issue delayed results and appointment letters. Secondly, the counsel for the respondents asserted that prior to 01.01.2004, there was no employee-employer relationship between the applicants and the respondents. The applicants joined after 01.01.2004 and demanding to be part of the OPS which was in vogue prior to 01.01.2004. He argued that the applicants cannot be granted any service benefits with effect from the date even before the date of their joining or even before the date their result were declared. Thirdly, the counsel for the respondents argued that the applicants were barred to pray for the relief to migrate to the OPS on the grounds of doctrine of promissory estoppels. All the three applicants continued to subscribe to the NPS in that any objection or any demure from the dates of their joining as PGT in the Directorate of Education, GNCTD. He further averred that the applicants are stopped from makeup any claims pertaining to the OPS after more than 16 years of opting and subscribing to the NPS effective from 01.01.2004.
The counsel for the respondents further averred that the order dt. 08.03.2018 in OA no. 1022/2018 is only respect of the 33 applicants in that OA and should not be quoted as a precedent for deciding any other case. Thus, he argued that the applicants herein cannot claim benefits on the basis of the said order.
The basic issue here is whether the three applicants, who were part of the same selection process out of which some other candidates got appointed prior to these applicants and hence got benefits of the old pension scheme, should be excluded from the benefits of being part of the old pension scheme despite the fact that the selection and appointments of the present applicants got considerably delayed for no fault of theirs. In the instant case, it is admitted fact that these applicants were part of the same recruitment form for post code 012/2002. It is also admitted fact that their selection and appointment got delayed due to administrative exigencies. In view of this, these applicants cannot be discriminated vis-à-vis similarly placed candidates of the same selection process. It will be violative of Articles 14 and 16 of the Constitution. I do not agree with the contention of the counsel for the respondents that the applicants barred by the doctrine of estoppels because they accepted and continued to subscribe to the NPS since last 16 years and at this stage, they cannot agitate to claim to switchover to the OPS. Pension is a matter which fells into the category of continuing wrong, if there remains genuine grievance in respect of any party.
I also do not agree with the contention of the counsel for the respondents that order dated 08.03.018 in Balvir Yadav (supra) case is not applicable in the present case. The facts and circumstances in OA no. 1022/2018 are exactly the same as in the present case. Hence, the said order is squarely applicable in the present case.
In view of the above, the respondents are directed to include the present applicants in the Old Pension Scheme at par with other candidates who were selected and appointed in respect of recruitment advertisement for post code 012/2002.
The OA is disposed of in terms of the above observations. There shall be no order as to costs.