High Court
Case Details
WP(C) 4714/2011 BEFORE HON’BLE MR JUSTICE I A ANSARI
Legal Reasoning
HON’BLE MR. JUSTICE P. K. MUSAHARY JUDGMENT & ORDER (ORAL) (Ansari, J) While working as a Helper/Laboratory Attendant in the North Eastern Regi onal Institute of Science and Technology, popularly known as ’NERIST’, at Nirjul i, Arunachal Pradesh, against a regular vacancy as per the appointment order, da ted 03.07.1991, issued by NERIST, the petitioner was brought from NERIST, on dep utation, to the post of Lower Division Clerk (in short, ’LDC’) in the North East ern Region Farm Machinery Training & Testing Institute (in short, the ’NERFMTTI’ ), under the Ministry of Agriculture, Government of India, for a period of three years, the offer of appointment, in this regard, having been made by the NERFMT TI on 25.08.2003 and the petitioner having joined, as LDC, in the NERFMTTI, with effect from the forenoon of 10.09.2003. 2. While the petitioner had been working as LDC, on deputation, in NERFMTT I, as indicated hereinbefore, the Director, NERFMTTI, offered to the petitioner, vide Memorandum, dated 26.07.2004, a permanent post of Laboratory Attendant. C lause (f) of the said Memorandum, dated 26.07.2004, containing the said offer of appointment, read as under: Pension/Gratuity - Sri B. Upadhyaya is entitled for all Pensionery benef (cid:28)( f) its covered under the provision of CCS (Pension) Rules, 1972, if the option is e xercised by him for pension benefit. He is suggested to submit his option either to receive CPF benefits which have accrued to him from the NERIST and start his service afresh in Government or choose to count service rendered in that body a s qualifying service for pension in Government by forgoing employer’s share of C PF contributions with interest thereon, which will be paid to the concerned Govt . Department by NERIST. Gratuity/Leave Salary etc. shall be regulated in CCS (Pe nsion) Rules 1972. (cid:29) 3. As NERIST intimated NERFMTTI by its formal letter, dated 04.03.2004, tha t it had no objection to the permanent absorption of the petitioner in NERFMTTI , the petitioner accepted the offer of absorption at NERFMTTI and tendered, acc ordingly, his technical resignation, on 02.08.2004, from the post of Helper/Labo ratory Attendant at NERIST. This was followed by an Officer Order, dated 05.08 .2004, issued by respondent No. 3, namely, Director, NERFMTTI, absorbing the pet itioner in a post of LDC. 4. By his letter, dated 04.08.2004, addressed to the respondent No. 3 herei n, namely, Director, NERFMTTI, the petitioner, on his being permanently absorbed in the post of LDC, at NERFMTTI, opted for pension and pensionary benefits maki ng it clear that the amount, contributed to the CPF account, in his parent depar tment (i.e., NERIST), may be converted to GPF to be opened by him and maintained by the Pay & Accounts Officer, Department of Agriculture & Co-operation, Govern ment of India. 5. Earlier thereto, by letter, dated 1st June, 2004, respondent No. 3 herei n had sought for clarification from respondent No. 4 herein (i.e., the Pay & Acc ounts Officer, Department of Agriculture & Co-operation, Ministry of Agriculture , Government of India) as to whether the petitioner, when permanently absorbed, would receive pension and pensionary benefits if he opted for pension ? 6. Responding to the letter, so issued by respondent No. 3, as indicated ab ove, respondent No. 4 herein issued a letter, on 02.06.2004, clarifying that the cases, where Government servants apply for posts in the same or other departmen t and, on selection, they are asked to tender technical resignation, the past se rvices are counted towards pension under the CCS (Pension) Rules, 1972, and when a Government servant had, originally, joined Govt. service prior to 01.01.2004, he should be covered by the CCS (Pension) Rules, 1972, and, in the present case , since the Government servant (i.e., the petitioner herein) had, originally, jo ined government service prior to 01.01.2004, he should be covered under the CCS (Pension) Rules 1972. 7. By a subsequent letter, dated 22.06.2004, addressed to the respondent No . 3 herein by respondent No. 4, it was further clarified that the services, rend ered by an employee, in autonomous body, may be counted towards pension as quali fying service if the official opts for pension and employer’s share of the CPF c ontribution, with interest thereon, has to be paid to the Govt. Department by th at autonomous body as quoted in para (ii) of Annexure-III of Chapter 51 of Swamy ’s Establishment and Administration. 8. By Memorandum, dated 26.07.2005, a clarification was issued by the Gover nment of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners’ Welfare, as regards counting of service of a Government servant, on submission of technical resignation, on or after 01.01.2004, for th e purpose of his being able to receive benefit of pension under the CCS (Pension ) Rules, 1972. The relevant portion of the Memorandum aforementioned reads as u nder: (cid:28) (2) nce and it is clarified as follow: (i) All the employees who entered into Central Government service or in the service of an Autonomous Body set up by Central Government (satisfying the condi tions laid down in para-4 of O.M. dated 29.08.1984), on or before 31.12.2003 and who were governed by old pension scheme under the Central Civil Services (Pensi on) Rules, 1972, will continue to be governed by the same pension scheme and sam e rules, for the purpose of counting of their past service under the said rules or under the provisions of the DP&AR’s O.M. No. 28.10.1984-PU dated 29.08.1984, as amended from time to time, if such employees submit technical resignation on or after 01.01.2002, to take up new appointment in another Ministry or Departmen t of the Government of India or an Autonomous Body set up by the Central Governm ent, in which the pension scheme under Central Civil Services (Pension) Rules, 1 972 already exists for the employees who entered into service on or before 31.12 .2003. (ii) The employees who entered into service on or before 31.12.2003 and who w ere governed by CPF scheme or any pension scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 197 2, on submission of technical resignation to take up new appointment on or after 01.01.2004, cannot be allowed to join the old pension scheme under Central Civi l Services (Pension) Rules, 1972 because entry to the said scheme ceased w.e.f. 31.12.2003 and no new entry can be allowed in the pension scheme under above Rul es. However, such employees can seek pensionary/terminal benefits, from the prev The matter has been considered in consultation with the Ministry of Fina ious organisation/Department, it admissible under the rules of that organisation /Department, for the period of service rendered under that organisation/Departme nt. (cid:29) 9. Subsequent thereto, the respondents did not agree to give to the petitio ner herein the benefits of pension by contending that the petitioner having been absorbed, in the post of LDC, at NERFMTTI, with effect from 03.08.2004, he woul d not be entitled to the benefits of pension in terms of the CCS (Pension) Rules , 1972, and that his case would be governed by the New Pension Scheme. 10. We deem it apposite, at this stage, to refer to the New Pension Scheme, which the respondents have relied upon in order to deny to the petitioner herein the benefits of pension. The relevant portion of the New Pension Scheme reads a s under: (cid:28) The New Pension Scheme comes into operation w.e.f. 01.01.2004 and is applicabl e to all new entrants to Central Government service except to Armed forces joini ng Govt. service on or after 01.01.2004. FEATURES 1. 2. 3. 4. vailable to New Govt. servants joining Govt. service on or after 01.01.2004. (cid:29) **** **** **** The existing provision of Defined benefit pension and GPF would not be a **** **** **** **** **** **** 11. Aggrieved by the denial of pension, which the petitioner herein claimes to be entitled to, the petitioner herein filed an Original Application (in short , ’OA’) at the Central Administrative Tribunal, Guwahati Bench, seeking appropri ate directions to be issued to the respondents making the benefits of pension av ailable to the petitioner in terms of the CCS (Pension) Rules, 1972. This Origi nal Application, filed by the petitioner herein, gave rise to OA No. 38/2011. T he respondents resisted the OA by contending that the petitioner, having been ab sorbed in the NERFMTTI with effect from 03.08.2004, was not entitled to receive pension in terms of the CCS (Pension) Rules, 1972, inasmuch as the new Pension S cheme had already come into operation with effect from 01.01.2004. 12. By its order, dated 01.07.2011, the learned Tribunal dismissed the OA by taking the view that at the time, when the petitioner was absorbed, in the NERF MTTI, w.e.f. 03.08.2004, the New Pension Scheme had already come into force, on 01.08.2004, and, therefore, the petitioner would not be entitled to the benefit of pension, which is, otherwise, payable to a Government servant under the prov isions of the CCS (Pension) Rules, 1972. Dissatisfied with the decision, so give n by the learned Central Administrative Tribunal, Guwahati, dismissing his OA, t he petitioner has put to challenge, by way of the present writ petition, filed u nder Article 226 of the Constitution of India, the order, dated 01.07.2011, afor ementioned, whereby the learned Tribunal has dismissed the petitioner’s OA. 13. We have heard Mr. K. N. Choudhury, learned Senior counsel, for the writ petitioner. We have also heard Mr. I. Hussain, learned Central Government couns el, appearing for the respondents. 14. The present writ petition, to our mind, calls for interpretation of the New Pension Scheme with regard to its applicability to the case of the petitione r. A correct interpretation is, however, not possible, in the context of the fa cts of the present case, without a clear perception of the meaning and effect of the expression ’absorption’ in service jurisprudence. The term ’absorb’, in se rvice jurisprudence, with reference to a post, implies that an employee, who had not been holding a particular post in his own right by virtue of either recruit ment or promotion to that post, but had been holding a different post in a diffe rent department, is brought to the post (wherein he is ’absorbed’), either on de putation or by transfer and is subsequently absorbed in that post, where-after h e becomes, in his own right, a holder of the post to which he was so brought on deputation or transfer and loses, in consequences of such ’absorption’, his lien on the post which he had been holding in his parent department. 15. Thus, what happens on absorption of a Government servant, in a post, is that, while on deputation, he holds a post not on his own right but by virtue of deputation, he, upon his absorption in that post, holds the post, which he had been holding on deputation, in his own right. A Government employee, on his ab sorption, cannot be regarded as a new Government employee or a new Government se rvant. The reference made, in this regard, by Mr. Choudhury, learned Senior cou nsel, to the case of Devdutta and others vs. State of M.P. and others, reported in 1991 Supp (2) SCC 553, is not misplaced inasmuch as the Court has observed, i n Devdutta and others (supra), as follows: (cid:28)8. Now coming to the question of seniority, the term (cid:28)absorbed (cid:29) in Service Juri sprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue o f either recruitment or promotion to that post but is holding a different post i n a different department is brought to that post either on deputation or by tran sfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post. No one assert s that the instant one was a case of the absorbed Sales Tax Inspectors being ini tially sent on deputation from the post of Block Level Extension Officer to the post of Sales Tax Inspector and being subsequently absorbed in that post. Conseq uently, when as pointed out by the High Court, it was not disputed that the surp lus Block Level Extension Officers had been absorbed in the post of Sales Tax In spectors it is obvious that it was a case of absorption by transfer. In this co nnection it would be useful to recapitulate that the minutes of the meeting refe rred to above held on September 30, 1965 laying down the principles of procedure for absorbing the surplus personnel specifically stated that the surplus staff which was to be (cid:28)absorbed (cid:29) (cid:28)should be treated as having been transferred from on e post to another so that there may be no break in their service (cid:29). (Emphasis supplied) 16. The above position of law is further clarified by the decision, in Union of India and others vs. Parul Debnath and others, reported in (2009) 14 SCC 173 , wherein the Supreme Court has pointed out that the direction from the Tribunal as well as the High Court, in respect of the respondent (i.e., Parul Debnath), was for absorption in the regular establishment of the Andaman and Nicobar Isla nds and no new appointment was required to be made. The decision, in Parul Debn ath’s case (supra), further clarifies that absorption is not a new appointment a nd a Government servant, on his absorption, does not cease to be a Government se rvant and he has to be treated as Government servant before as well as after his absorption inasmuch a Government servant, on his absorption, does not lose the nature of his earlier appointment as a government servant. 17. In the case at hand, though the petitioner was appointed to the post of LDC, at NERFMTTI, on 03.08.2004, on deputation, the fact of the matter remains t hat he was a Government servant even before his appointment in NERFMTTI and that when he was brought, on deputation, from NERFMTTI, he, in NERFMTTI too, still r emained a Government servant and, on his absorption, he continued to remain a Go vernment servant as before. The petitioner’s status, as a Government servant, thus, never lapsed. N 18. otwithstanding, therefore, the fact that the petitioner was absorbed as LDC, in NERFMTTI, with effect from 03.08.2004, he was a Government servant, when he had been working as a Helper/Laboratory Attendant in NERIST and he remained a Govern ment servant, when he had been working, on deputation, in NERFMTTI, and even on ’absorption’, his status as a Government servant did not cease. 19. In the backdrop of the resultant effect of absorption of the petitioner , when we revert to the New Pension Scheme, we notice that the new Pension Schem e has come into force with effect from 01.01.2004 and is applicable to all new e ntrants to the Central Government service except to Armed Forces joining Govt. s ervice on or after 01.01.2004. The New Pension Scheme cannot, therefore, be app lied to a person, who is not a new entrant to the Central Government service ina smuch as Clause 4 of the New Pension Scheme, when read and re-read, makes it abu ndantly clear that the new Pension Scheme would be applicable to a new Governmen t servant, i.e., a person, who was not a Government servant and who joins the Go vernment service on or after 01.01.2004. As the petitioner could not have been regarded as a new Government servant, on his absorption, in NERFMTTI, with effec t from 03.08.2004, the question of resorting to, or applying, the New Pension Sc heme to the case of the petitioner did not arise at all. 20. The reliance, which has been placed by the respondents on the New Pensio n Scheme in support of their proposition that since the petitioner has been abso rbed, in NERFMTTI, with effect from 03.08.2004, he cannot be given the benefits of pension under the CCS (Pension) Rules, 1972, because of the fact that the New Pension Scheme has come into effect on 01.01.2004, is wholly misconceived and o ught not to have been upheld by the learned Tribunal. As the premise of denial by the respondents in extending the benefit of the provisions of the CCS (Pensio n) Rules, 1972, to the petitioner is wholly unfounded, we are clearly of the vie w that the petitioner’s case is squarely covered by the CCS (Pension) Rules, 197 2, and the New Pension Scheme cannot be applied and could not have been applied to his case. 21. Though Mr. Choudhury, learned counsel, has placed reliance on the case o f Collector of Bombay vs. Municipal Corporation of the City of Bombay and others , reported in (1951) SC 469, and Mr. I. Hussain, learned Central Government coun sel, for the respondents, on the case of M/s Jitram Shiv Kumar and others vs. Th e State of Haryana and another, reported in (1980) SC 1285, we do not find that these cases are relevant to the facts of the present case. We do not, therefore , discuss the position of law laid down in Collector of Bombay (supra) and M/s J itram Shiv Kumar (supra). 22. Because of what have been discussed and pointed out above, this writ pet ition succeeds. The impugned order, dated 01.07.2011, is hereby set aside and t he respondents are hereby directed to treat the petitioner as a person covered b y the CCS (Pension) Rules, 1972, and make available the benefits of pension to h im as per rules. 23. isposed of. 24. With the above observations and directions, this writ petition stands d