Union of India vs Durga Prasad Yadav

Instant petition has been filed against order of Central Administrative Tribunal (Tribunal) dt. 19.11.2013 finally holding that the respondent has completed minimum qualifying service & that makes him entitled for pensionary benefits for the service rendered in the organization.

Brief facts which are relevant for our consideration & can be noticed from the pleadings available on record are that the respondent no. 1 Durga Prasad Yadav served in defence service from 15.03.1972 and took voluntary retirement after completion of 20 years, 7 months & 15 days service on 31.01.1992. An advertisement thereafter came to be issued by Staff Selection Commission ("SSC") inviting applications for the post of Clerk and the respondent being eligible also submitted application under ex-service man quota. It is to be noted that there was some confusion with the SSC as to whether the respondent could be considered as ex-service man and sought clarification from the Department. The Director General Resettlement, Ministry of Defense clarified on 17.10.1994 that the applicant is ex-service man based on OM no. 36034/5/85 dt. 14.04.1987 for the purpose of reservation to a post in government but despite the clarification made from the Ministry of Defense the SSC didn''t consider the respondent eligible under the ex-service man quota and indisputably if he would have been considered under the ex-service man quota the respondent would have been appointed along with others who were offered appointment in July/August 1995 participated in the selection along with him pursuant to the advertisement dt. 17.04.1993.

The action of the SSC came to be challenged by the respondent by filing original application bearing no. 45/1993 before the Tribunal and that came to be disposed of with liberty to file fresh representation in the light of communication dt. 17.10.1994 issued under the signatures of Director General Resettlement and when no action was taken on his representation he had to file a contempt petition and despite there being office memorandum issued from Department of Personnel & Training Establishment (Reservation) Section dt. 09/10-1995 still considered for appointment when the contempt petition was filed under the ex-service man quota vide order dt. 19.05.2001 but since the age of retirement is already fixed on attaining the age of superannuation he stood retired from service on 30.04.2010.

Prior thereto he filed original application before the Tribunal bearing no. 186/2003 claiming fixation, salary & seniority and other consequential benefits w.e.f. July/August, 1995 when other similarly situated applicant who had participated along with him in the process of selection pursuant to the advertisement dt. 17.04.1993 are offered appointment but that application came to be dismissed by the Tribunal vide its order dt. 12.09.2007 holding that as he has not worked during the intervening period that will not make him entitled for seniority & salary prayed for by him but after he retired from service and the respondent had not released his terminal benefits including pension to which he would have been otherwise entitled for, original application came to be filed by him before the Tribunal bearing no. 606/2012 and his grievance was that he was never at fault and for long six years he was awaiting his appointment and despite a clarification was made by the authorities still the SSC has sat tight over the matter and failed to consider the respondent as ex-service man to whom the appointment was finally offered on 19.05.2001 and when he was not at fault at least he could not be deprived of minimum qualifying service which makes him entitled for grant of pension & other consequential retiral benefits in furtherance thereof to which the incumbent is ordinarily was entitled for.

The learned Tribunal after taking into consideration the material on record arrived at the conclusion that the respondent was not at fault and once he was finally considered & offered appointment in reference to the advertisement dt. 17.04.1993 under the ex-service man quota on 19.05.2001 at least he could not be deprived of his legitimate right of consideration treating the service for the period prior to his joining pursuant to his order of appointment dt. 19.05.2001 at least for the qualifying service to make him entitled for grant of pension & other benefits attached thereto and directed to give him the benefit of minimum pension based on ten years of qualifying service obviously looking to the peculiar circumstances brought to the notice of the Tribunal and that order of the Tribunal is subject matter of challenge in the present writ petition.

The Officer-in-Charge for petitioner department present submits that indisputably the respondent was given appointment under the ex-service man quota vide order dt. 19.05.2001 and retired from service on attaining the age of superannuation on 30.04.2010 & didn''t complete minimum qualifying service of ten years in their organization and the Ld. Tribunal committed error in passing of order impugned dt. 19.11.2013 in treating the service prior to his joining in their organization as part of qualifying service to make him entitled for release of pension based on minimum qualifying service and this being apparent perversity committed by the Tribunal in passing of order impugned that requires interference by this Court.

The respondent appeared in person submits that when he was never at fault and working from the day offer was made admittedly under the ex-service man quota and indisputably when others got appointment in July/August, 1995 there appears no justification for not seeking legitimate claim of treating service to the extent complete the minimum qualifying service and that alone will grant him benefit of pension to which he was otherwise entitled for under the law and this has been considered by the Tribunal and that does not require any interference by this Court.

We have considered the submissions & also perused the material on record.

It is not disputed that under the Scheme of Rules minimum qualifying service for the incumbent to make him entitled for grant of pension is ten years of qualifying service and such of the employees who have not been able to complete minimum qualifying service they are entitled to service gratuity which shall be calculated at the rate of half month''s emoluments for every completed six monthly period of qualifying service and the total service which the respondent had rendered in the present organization from the date he was offered appointment from 19.05.2001 indisputably has not completed the minimum qualifying service but the facts cannot be left open in isolation which are brought on record and certainly meet the grievance which the respondent had raised at various levels and has not been considered by the department without any legitimate cause or justification. The advertisement was issued on 17.04.1993 and the respondent submitted application for consideration under the ex-service man quota and initial objection of the SSC was that how far the respondent could be considered as ex-service man and the clarification was made by the Director General Resettlement, Ministry of Defense dt. 17.10.1994 in the light of office memorandum issued by the DOPT dt. 14.04.1987 but still if the SSC failed to take notice of the clarification made and denied his fair right of consideration for appointment and he had to file his claim for being considered in the ex-service man quota by filing original application before the Tribunal in 1995 and after filing of contempt petition he was offered appointment on 19.05.2001 indisputably he was never at fault and once the offer was made under ex-service man quota to his dismay without there being any defence available to the SSC, legitimate claim for pension & other benefits attached thereto could not be denied.

We do find substance that when the respondent had not worked during the intervening period seniority & salary has been denied for the intervening period but that will not disentitle him to claim qualifying service for grant of pension which is otherwise the right of incumbent who had worked & discharged duties in the government service in the facts of the instant case.

In the present facts & circumstances, eligibility of the respondent in treating minimum qualifying service makes him entitled for grant of pension as considered by the Tribunal in passing of order impugned does not require any interference by this Court.

Consequently, the writ petition is devoid of merit and accordingly dismissed.