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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
The applicant has approached this Tribunal to seek the following relief:
“8.1The impugned letter dated 31.10.2023(Annexure Al) be set aside and quashed so far the applicants are concerned.
8.2.The Hon’ble Tribunal be pleased to direct the respondents to allow switching from New Pension System to Old Pension Scheme under the RS(Pension) Rules, 1993 for the applicants in terms of their options submitted under DoP&PW OM dated 03.03.2023 read with Railway Board’s letter dated 10.03 .2023, with all consequential benefits.
8.3.Any other relief or reliefs as the Hon’ble Tribunal may deem fit and proper, including the cost of the case.”
The applicants are aggrieved with the impugned letter dated 31.10.2023 whereby the option for switching from New Pension System to Old Pension has been rejected on the ground that their date of initial medical examination is after 22.12.2003 and their selection for appointment was finalized/joined after 01.01.2004.
All of the three applicants were appointed on compassionate grounds.
That the father of the applicant no. 1 died in harness on 08.04.2003 while working in the respondent department as Store Clerk. And he submitted application dated 17.06.2003 for compassionate appointment and subsequently appointed in 2004.
That the father of the applicant no. 2 died in harness on 06.11.1997 while working as C/Fitter/II under SSE(C)/GHY. On the date of death of his ‘father, the applicant no. 2 was a minor. On attaining 18 years in 2002, his mother submitted application for compassionate appointment and subsequently appointed in 2005.
That the father of the applicant no. 3 died in harness on 05.01.1996 while working as C/Khalasi under CS/BG/GHT. On the date of death of his father the applicant no. 3 was a minor. He attained majority in 2003, he submitted application dated 21.07.2003 to the respondent no. 3 for compassionate appointment and subsequently appointed in 2004.
So it is clear that they all have applied for compassionate appointment prior to 31.12.2003 and they were subsequently appointed and have been continuing their service without any blemish or stigma to the full satisfaction of his superiors.
Learned counsel for the applicant submits that the New Pension Scheme was made effective from 01.01.2004 by Notification dated 22.12.2003 and all Government servants appointed on or after 01.01.2004 to the posts in the Central Government service are to be covered under the said scheme and the CCS(Pension) Rules, 1972 [RS(Pension) Rules, 1993 for the railways] with the old pension scheme were amended by Notification dated 30.12.2003 and after the said amendment those rules are made not applicable to the Government servants appointed to Government service after 31.12.2003. The applicants after their appointment were governed under the New Pension Scheme.
Thereafter, the DoP&PW issued OM dated 03.03.2023 whereby at para 4 it has been decided that in all cases where the Central Government civil employee have been appointed against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972 (now 2021). The last date for exercising option has been mentioned as 31.08.2023. Para 7 provides that the matter regarding coverage based on option is to be placed before the Appointing authority who shall issue necessary order latest by 31.10.2023. The Railway Board issued letter dated 10.03.2023 stating that the instructions under DoP&PW OM dated 03.03.2023 shall apply mutatis.
That the applicants being eligible submitted option under DoP&PW OM dated 03.03.2023 but the respondent no. 5 issued letter dated 31.10.2023 stating that the applicants have been found not eligible for switch over to the old pension scheme under RS (Pension) Rules, 1993 from NPS (National Pension Scheme) as their selection for appointment was finalized/joined on or after 01.01.2004. Further stating that it has not been approved as their date of initial medical examination was conducted after 22.12.2003 i.e. after the date of notification of the NPS system.
For that the instructions under the DoP&PW OM dated 17.02.2020 have been relaxed and superseded by subsequent DoP&PW OM dated 03.03.2023 providing for only the post or vacancy to have been advertised/notified for recruitment/appointment, prior to 22.12.2003 for switching to old pension scheme and the condition under DoP&PW OM dated 17.02.2020 of declaration of result prior to 01.01.2004 is no more applicable after issuance of the DoP&PW OM dated 03.03.2023.
Learned counsel for the applicants submits that applicants had applied for compassionate appointment prior to the date of notification of the National Pension Scheme i.e. 22.12.2003. Respondents have also acted on the applications of the applicants and have issued letters dated 23.06.2003 and 19.08.2003 to the Welfare Inspector seeking for inquiry report with further documents, and letter dated 08.07.2002 to applicant no. 2 for medical examination, based on which their cases were processed, Screening Test and medical examinations were held and they have been ultimately appointed by orders dated 28.06.2004, 29.04.2005 and 17.01.2005 respectively against the posts lying vacant for compassionate appointment prior to 22.12.2003, as such there is no scope for denying benefit of switching to old pension scheme in terms of DoP&PW OM dated 03.03.2023. It has never been the case of the respondents that there was no vacancy for appointment on compassionate ground prior to 22.12.2004 for processing the case of the applicants.
Respondents in their reply have stated that several references have been received in DoP&PW seeking clarifications in regard to the implementation of the aforesaid instructions in certain circumstances. One of such issues was
“Will the instructions contained in the O.М. dated 17.02.2020 be applicable in case of Government servant who joined on or after 01.01.2004 on appointment on compassionate grounds. If so, how will the eligibility of such Government Servants to exercise option under OM dated 17.02.2020 be determined".
The said issue has been clarified by the DoP&PW vide OM dated 25.06.2020 as:
"A Government servant, who joined on or after 01.01.2004 on appointment on compassionate grounds, shall be eligible to exercise option in terms of the OM dated 17.02.2020, if the competent authority had taken the decision on the recommendation of the Screening/Selection Committee to appoint the Government Servant on compassionate ground before 01.01.2004".
Applicants were medically examined on 15.04.2004, 29.03.2005 and 31.08.2004 respectively. This is the extent procedure that Medical examination is conducted before deciding the post/category of a candidate for appointment on compassionate ground. In the instant case, all the medical examination was conducted after 01.01.2004, i.e. competent authority had taken the decision on the recommendation of the Screening/Selection committee after 01.01.2004. Hence, the prayer made by the Applicants was rejected.
In case of appointment on compassionate ground, the DoP&PW has already clarified its stand vide O.M. dated 05.06.2020 regarding coverage under the CCS (Pension) Rules, 1972. So according to respondents, the Authority has passed the impugned Order dated 31.10.2023 rightly.
Heard the learned counsel for the parties and perused the records as well as the pleadings.
It is the admitted case of the applicant that their options to switch to Old Pension has been rejected on the grounds that they were appointed after 01.01.2004. They had applied for compassionate appointment in 2002 and 2003. Applicant No. 1 after the death of his father in harness on 08.04.2003 submitted application dated 17.06.2003 for compassionate appointment and subsequently appointed in 2004. Applicant No. 2, whose father also died in harness on 06.11.1997 while working as C/Fitter/II under SSE(C)/GHY, minor at that time, on attaining 18 years in 2002, his mother submitted application for compassionate appointment and subsequently appointed in 2005. Applicant No. 3, whose father died in harness on 05.01.1996 while working as C/Khalasi under CS/BG/GHT, was a minor, when attaining majority in 2003 submitted application on 21.07.2003 and subsequently appointed in 2004.
There is a latest circular/O.M issued by the Department of Pension & Pensioners' Welfare (DoP&PW)'s O.M. No. 57/05/2021-P&PW(B)/Compassionate/10593 dated 22.06.2026 regarding consideration of crucial date for compassionate appointments for inclusion under the CCS (Pension) Rules, wherein Para 2 & 3 reads as under:
“2.After inter-ministerial consultation and examination in consultation with the Department of Expenditure and DoPT, it has been decided that the date of application for Compassionate Appointment shall be considered as the crucial date for compassionate appointments provided that the applicants were eligible to be considered for appointment at the time of their application. The family member who is eligible for being considered for appointment and have applied for compassionate appointment on or before 31.12.2003, shall be considered under CCS (Pension) Rules, 2021 by the concerned Ministries/Departments 3. All Ministries/Departments are requested that the above instructions may be considered in all such cases of compassionate appointments.”
From the above O.M, it can be seen that the date of application for Compassionate Appointment shall be considered as the crucial date for compassionate appointments and have applied for compassionate appointment on or before 31.12.2003, shall be considered under CCS (Pension) Rules, 2021 by the concerned Ministries/Departments. The Railways have also adopted vide RBE No. 49/2026 Dated 24.06.2026. In the instant case, the applicants have applied for compassionate appointment in 2002 and 2003 i.e on or before 31.12.2003 or prior to 01.01.2004.
Accordingly, in the light of the above, we direct the respondents to allow the applicants to switch over to Old Pension Scheme as they are covered by their own Notification dated 24.06.2026 and the DOP&PWs circular dated 22.06.2026. The entire exercise shall be completed within a period of 03 months from the date of receipt of certified copy of this order.
The O.A is disposed of with the above observations and directions. No costs.