Triveni Sarothiya vs Union Of India & Ors.

By Akhil Kumar Srivastava, Member (J)

The instant OA has been filed by the applicants to direct the respondents to quash and set aside the orders impugned dated 23.01.2020 and further direct the respondents to pay the entire pension of the husband of the applicant w.e.f. 15.02.1990 till his death alongwith arrears with 18% penal interest and further to direct the respondents to make the payment of all retiral dues and pay family pension to the applicant.

The brief facts of the case are that the applicant is the wife of Late Shri Shivraj Singh Sarothiya who was working as Auditor/8318444, in the office of the Controller Defence Ridge Road Jabalpur. His appointment was initially temporary and for the period of two years and after completion of probation, he was conferred temporary status vide letter dated 31.12.1985 (Annexure A-2). Earlier a disciplinary proceeding had been initiated against the husband of the applicant and he has been punished with the punishment of compulsory retirement by order dated 02.02.1990 after that department issued a letter dated 12.03.1990 for completion of necessary papers of compulsory retirement pension. Since the husband of the applicant was not satisfied with the punishment order 02.02.1990, he filed a case before the CGIT Jabalpur. The husband of the applicant died on 10.07.2019 when he came to attend his case at Jabalpur due to heart attack at the Jabalpur. Therefore, after the death of applicant’s husband, the applicant made a fresh application for pension but the respondents have rejected the claim of the applicant on the ground that husband of the applicant was in temporary service and in case of the husband of the applicant CCS (Temporary Service) Rules 1965 would apply and since the husband of the applicant had been compulsory retired as a disciplinary measure, he is not entitled for pension.

The applicant further submits that the punishment order itself shows that the husband of the applicant had been compulsory retired and only regular employees are given such punishment not to temporary employees therefore, the punishment order itself sufficient to prove that husband of the applicant was permanent employee of the respondents department.

The respondents have filed their reply in which they submitted that the Office of the Pay and Accounts Office, Grenadiers Regimental Centre, Jabalpur was one of the sub-offices under the administrative control of erstwhile Controller of Defence Accounts (Other Ranks), Central, Nagpur. Consequent upon the re-organization of ORs Controllers Offices in 1995, the administrative and functional control of PAO (ORS) GRC, Jabalpur has been placed under the jurisdiction of Controller of Defence Accounts, Jabalpur functioning under Defence Accounts Department, Ministry of Defence (Finance). They further submit that the applicant's late husband initially joined as Auditor in Defence Accounts Department on 24.06.1977 in Temporary Capacity against Temporary Post. His probation was extended up to 23.06.1980. Subsequently, he was granted Quasi-permanent status in Temporary Auditor Grade vide Part II Officer Order No. 723 Dated 21.11.1985 published by the then Controller of Defence Accounts (Other Ranks), Central, Nagpur. Later on, he was appointed in a Quasi-Permanent capacity in the grade of Auditor with effect from 24.06.1980 in pursuance of Rule 3 & 4 of the Central Civil Services (Temporary Services) Rule, 1965 vide declaration dated 19.12.1985 notified by the Office of the erstwhile Controller of Defence Accounts (Other Ranks), Central, Nagpur. He continued in service as a Quasi Permanent Auditor till he was compulsorily retired from service with effect from 15.02.1990. It is further submitted that the temporary employees of the Defence Accounts Department are governed by Central Civil Services (Temporary Service) Rules, 1965 with effect from 01.11.1967 as per Ministry of Finance (Defence Division) Notification No.0695/AMD-12050-12052 dated 06.09.1968.

It is further submitted that as per definition laid down in Rule 2 (b) of Central Civil Services (Temporary Service) Rules, 1965, Quasi Permanent Service means temporary service commencing from the date on which a declaration made under Rule 3 takes effect and consists of periods of duty and leave after that date. Further it is defined in Rule 2(d) of Central Civil Services (Temporary Service) Rules, 1965 that temporary service means the service of temporary Government servant in a temporary post or officiating service in permanent post, under the Government of India (Annexure-R/3). It is crystal clear from Rule 2(b) and 2 (d) of Central Civil Service (Temporary Service) Rules, 1965 that the quasi-permanent service is a temporary service and quasi- permanent employee is a temporary employee working against a temporary post or officiating vacancy in permanent post. Therefore, Quasi-Permanent employee is not a permanent Government servant and the quasi-permanent service, thus rendered is only a temporary service rendered by the temporary government servant.

The applicant has filed rejoinder in which she reiterates the facts as stated in the OA.

Similarly, in their additional reply, the respondents have repeated their earlier stand.

Heard learned counsel for the parties and perused the pleadings and documents available on record.

Learned counsel for the applicant provided a copy of the Office Memorandum dated 28.03.1988 issued by the DoP&T. Para 4.4 of the said OM says that all persons who complete probation in the first appointment will be declared as permanent and the present distinction between permanent and temporary employees for grant of pension and other pensionary benefits will cease to exist. Learned counsel also provided copy of one order passed by the Patna Bench of this Tribunal in O.A. No.050/01109/2019 dated 24.11.2023. He submitted that similar controversy has already been decided by the Patna Bench.

The facts of the case are undisputed. The husband of the applicant was appointed as Auditor in temporary capacity on 24.06.1977 and was conferred with the quasi-permanent status in Temporary Auditor Grade vide order dated 21.11.1985. The deceased continued in service as a Quasi Permanent Auditor till he was compulsorily retired from service w.e.f.15.02.1990. It is the stand of the respondents that as per the Central Civil Services (Temporary Service) Rules, 1965, the husband of the applicant is entitled only for terminal gratuity as he has been compulsorily retired from the service. Surprisingly, on the one hand, the respondents are denying family pension to the applicant on the ground that her husband was working on temporary capacity and is governed under Temporary Services rules, but on the other hand, disciplinary proceedings were conducted against the applicant under Rule 14 of the CCS (CCA) Rules, 1965, which is applicable to a regular Government servant. Para 4.4 of the Office Memorandum dated 28.03.1988 issued by the DoP&T clearly states that there is no distinction between the permanent and temporary employees for grant of pension and other pensionary benefits once the person has completed the probation period. We also find that even after 23 years of service, the services of the husband of the applicant were not regularised and he continued as Quasi Permanent Auditor till such time he was permanently retired from service.

We also find that in a similar circumstances, the Patna Bench of this Tribunal in Original Application No.050/01109/2019 has observed that rule for family pension nowhere provides that the individual is to be a regular employee. The relevant portion of the order dated 24.11.2023 passed in the aforesaid Original Application reads as under:

Having considered the facts of the present case and in view of the observations made by the Patna Bench of this Tribunal in Original Application No.050/01109/2019 coupled with the instructions contained in Para 4.4 of the Office Memorandum dated 28.03.1988, we are of the view that the deceased employee is entitled for pension and consequently the applicant is also entitled for family pension. Accordingly, we direct the respondents to settle the family pension and other retiral benefits of the deceased employee and pay the arrears of pension and family pension to the applicant from the date of death of her husband onwards with interest at the rate applicable on GPF rate of interest, from the date of entitlement till final payment. This exercise shall be completed within a period of 90 days from the date of receipt of a copy of this order.

With these observations, this Original Application is allowed. No order as to costs.