THE HONOURABLE MR v. Nirmala Venkateswaran

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 21.01.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.1108 of 20071. Government of India, representedby its Secretary, Ministry of Social Justice & Empowerment, Room No.604, 'A' Wing, Shastri Bhavan, New Delhi 110 001.2. The Joint Secretary and Chairman, District Rehabilitation Centre Scheme, Ministry of Social Justice & Empowerment, Room No.611, 'A' Wing, Shastri Bhavan, New Delhi 110 001.3. The Project Director, District Rehabilitation Centre Scheme, Central Administrative & Co-ordinationUnit, 4 Vishnu Digamber Marg, New Delhi.Appellantsvs.Nirmala VenkateswaranRespondentAppeal against the order of the learned single Judge dated15.11.2006 in writ petition No.21935 of 2002 petition presented underArticle 226 of the Constitution of India, to issue a Writ of Mandamus,directing the respondents to pay pension and gratuity to petitioner asis given to the employees of the Institute for Physically Handicappedunder the Ministry of Social Justice and Empowerment, Government ofIndia with exemplary cost and penal interest of 18%.For appellants:Mr.S.Udayakumar, SCGSCFor respondent:Ms.R.Vaigai https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.)The correctness of the order of the learned single Judge dated15.11.2006 made in writ petition No.21935 of 2002 has been assailed bythe Government of India and the other statutory appellants in thisappeal. By the impugned order, the learned single Judge directed theappellants herein to settle the pension to the respondent herein, asprovided under the Rules and the by-law 6(vii) of the Institute ofPhysically Handicapped, with interest at 9% per annum. The learnedsingle Judge further directed the appellant to pay the amount within30 days from the date of receipt of a copy of that order. Therespondent was directed to pay back the appellant the amount ofRs.2,79,472/- which the respondent/writ petitioner received towardscontributory provident fund soon after the respondent/writ petitionerreceives the pension amount. 2. The facts of the case proceed as follows : The respondent-writ petitioner was appointed by order dated18.03.1985 as Assistant Professor in Occupational and Physiotherapy inthe scale of pay of Rs.1100-50-1600 plus usual allowances asadmissible under the Rules in force in the District RehabilitationCentre Scheme (DRCS) from time to time with effect from 28.02.1985 bythe Director of Institute of physically handicapped (DRCS), New Delhi.The terms and conditions of appointment furnished to her which isreferred to in the order of appointment provided that in addition tothe scale of pay fixed as stated above, the respondent was entitled todearness allowance/additional dearness allowance/interim relief, houserent allowance, and city compensatory allowance as admissible to theemployees of the Central Government. 3. The proceedings of the Project Director, DRCS (CentralAdministrative Co-operative Unit), dated 04.07.1986 stated that therules and regulations, as contained in the bye-laws of the Instituteof Physically Handicapped, applicable to the employees of theInstitute, as amended from time to time, would apply mutatis mutandisto the employees directly recruited in the Central Administrative Co-operative Unit (CACU)/RRTCs. It was further made clear by the saidproceedings that in respect of service conditions not covered by thebye-laws of the Institute of Physically Handicapped, the CentralGovernment Rules and Regulations would apply to the employees ofRRTC/CACU as are applicable to IPH employees. 4. Clause 6(vii) of the bye-laws provided that the employees ofthe Institute shall be eligible for pensionary benefit, GPF andgratuity as per the Central Government Rules. The CPF scheme wouldcontinue for the employees, existing on the date coming into force ofbye-laws, i.e., 2nd May, 1988 in the IPH, who do not opt for GPF schemeand opt to continue under CPF scheme. https://hcservices.ecourts.gov.in/hcservices/

5. The respondent was subscribing to CPF since 1985. Since theemployees of the RRC were not informed of the pension schemeintroduced in the IPH, nor asked any option in that regard, on therespondent coming to know about the amendment to the bye-laws of IPH,she opted for pension by her letter dated 01.05.1988. There wereseries of requests made by her to almost all authorities for grant ofpension. Though certain replies were received by her to the effectthat her request was being considered in accordance with the Rules,nothing fructified. Hence, she filed the writ petition with theprayer as stated above.6. Before the learned single Judge, the appellants herein neitherfiled a counter nor made any submissions by making appearance. Thelearned single Judge, with particular reference to clause (vii) ofbye-law 6 of IPH and the notification through which the respondent wasappointed, concluded that the post of the respondent would carry theCentral Government pay scale and allowances and has granted the prayeras stated supra. That order of the learned single Judge is challengedin this appeal.7. Along with this appeal, the appellants have filed anapplication praying to stay all further proceedings of the order ofthe learned single Judge. In the affidavit filed in support of theapplication, the appellant has taken a stand that the respondent wasthe employee of RRTC, Chennai recruited by the Project Director ofDRCS in the pay scale of the Central Government. The CentralGovernment stopped funding to the DRC projects with effect from01.04.2006. The applicability of the Government Rules to the projectemployees was for the administrative convenience so as to regulate theservices and conduct of the employees during the project tenure. Therespondent had not been recruited under the same terms as applicableto the Central Government employees. The applicability of the bye-laws mutatis mutandis to the directly recruited employees of CACU/RRTCwould only mean the applicability of the same with suitablemodification. 8.The appellant placed the judgment of the Supreme Court in thecase of District Rehabilitation Officer v.Jay Kishore Maity, CivilAppeal No.7999 of 1999 dated 10.11.2006 to support his case.9. We heard the learned counsel on either side and perused thematerials available on record.10. We are not able to accept the argument of the learned counselfor the appellants. It is an undisputed case that IPH caused apublication in the newspaper (Indian Express dated 28.11.1984) inwhich it invited application for 8 posts. One among them was the postof Assistant Professor in Occupational and Physiotherapy. The numberof posts for which the applications were called for was 4. The scaleof pay was Rs.1100-50-1600/-. The qualifying age was 'not more than 45years'. Qualifications and experience have been prescribed as 3 years https://hcservices.ecourts.gov.in/hcservices/ degree/diploma in occupational/physiotherapy with atleast 10 years ofteaching/clinical experience. The publication further stated that theselected applicant would be required to serve in any of the traininginstitute for the disabled under the Government at New Delhi, Bombay,Madras, Lucknow, Cuttack and Calcutta. All posts carry centralGovernment pay scale and allowances. It further stated that the postsare senior level trainee posts. Each trainee team would be requiredto train physicians, therapists, audiologists, vocational counsellors,orthotic and prosthetic technicians and multi purpose rehabilitationworkers, etc., in DRC. In the publication there is no reference to thefact that the posts are either temporary in nature or for a specifiedperiod or under any scheme. 11. By the Official memorandum dated 30.01.1985/01.02.1985 afterreferring to the earlier letter of the Joint Secretary dated29.01.1985, the terms and conditions of the respondent's appointmenthad been given. In clauses (ii), (iii) and (iv) it has been clearlystated that dearness allowance/additional dearness allowance/interimrelief, house rent allowance, city compensatory allowance would beadmissible at the rate at which it was allowed to the employees ofthe Central Government. The office order dated 18.03.1985 alsoreferred to the order No.15-6/84-HW-III dated 1st February, 1985. 12. From the above it is clear that the respondent has beenappointed in the IPH with the terms and conditions of appointment asstated therein and that she was entitled to all the benefits which areavailable to the Central Government employees. Further, theproceedings dated 04.07.1986 in Reference No.1-1 (8) 85 – MSW – ORC –542 (1) makes it clear that the rules and regulations contained inthe bye-laws applicable to the employees of IPH, New Delhi would applymutatis mutandis to the employees directly recruited in CACU/RRTCs andthe applicability of CCS (Contributory Provident Fund) Rules was alsostated therein. It is an admitted case that since 1985 the respondenthas contributed to CPF scheme. 13. The bye-laws for administration and management of IPH framedby virtue of the power conferred by Rule 10.5 of the Rules andRegulations of IPH provides for pension benefits as follows :6. General Service Conditions of the employees :(vii) Pension and G.P.F."The employees of the Institute shall be eligible topensionary benefits and GPF and gratuity as per the CentralGovernment Rules. On completion of one year of service, theemployee will be eligible for admission to the Institute's GPFscheme.The present CPF scheme will continue for the employees,existing on the date these bye-laws are made effective, i.e.,2nd May, 1988 in the IPH, who do not opt for GPF scheme and optto continue under CPF scheme." https://hcservices.ecourts.gov.in/hcservices/

14. Thus, it is clear that the respondent is entitled to thepensionary benefit as she opted for the same by her letter dated01.05.1988. As already stated from 01.05.1988 onwards, the respondentwas repeatedly making representations – 08.06.1988, 08.09.1998,14.10.1998, 14.01.1999, 08.02.1999, 22.03.1999, 23.04.1999, 26.04.1999and 06.05.1999. However, by letter dated 20.12.1999 the ProjectDirector informed the respondent that the action towards approval ofher pension and gratuity was being taken up with the Ministry. Thesaid letter was followed by another letter dated 10/15.02.2000 statingthat the respondent was entitled to receive final payment of balancelying in her CPF account and if she desires she could draw the finalpayment. As regards the pensionary benefit, it was reiterated thatthe Ministry was in the final stage of taking action. From the aboveit is clear that the respondent is entitled to pension and allthrough, it is not the case of the appellants that the respondent isnot entitled to pension. 15. Learned counsel for the appellant though placed the decisionof the Supreme Court in District Rehabilitation Officer v. Jay KishoreMaity, Civil Appeal No.7999 of 1999 dated 10.11.2006 in the typed setof papers, has not made any submission relying on the judgment. Thecore question before the Supreme Court in that case was whether theemployees selected for the Rehabilitation Centre at the West Bengaland Karnataka by the Project Co-ordinator of the RehabilitationCentre, who were the officials of the State Government of West Bengaland Karnataka could be regarded as employees of the Central Governmentso as to invoke the jurisdiction of the Central AdministrativeTribunal. The apex Court re-stated the test determinative forascertaining the relationship of 'employer-employee' viz., functionaltest or control test or organisational test, etc., and after referringto the earlier decisions of the Supreme Court in the cases of Workmenof Nilgiri Co-op. Market Society v. State of Tamil nadu 2004-3-SCC51f, Haldia Refineries Canteen Employees Union v. IOC 2005(5) SCC 51,and State of Karnataka v. KGSD employees Welfare Association, 2006-1-SCC 567, ultimately observed that it was not in agreement with thefinding of the CAT. 16. Here in this case, as stated supra, the advertisement wascaused by IPH, Department of Ministry of Social Welfare, wherein itwas categorically stated that the posts carry central Government payscale and allowances and the terms and conditions of appointment dated30.01.1985/1.2.1985 also indicated that all allowances as that of theemployees of the Central Government would be applicable to therespondent. Hence, the judgment of the Supreme Court is notapplicable to the facts of the present case. 17. At the time of hearing, it was brought to the notice of theCourt that a sum of Rs.2,79,472/ has already been paid over to therespondent towards her contribution to CPF. Out of the said amount,the respondent's share was only Rs.1,38,377/- Now that we have cometo the conclusion that the respondent is entitled to the pensionary https://hcservices.ecourts.gov.in/hcservices/ benefit, the order of the learned single Judge directing therespondent to repay the contributory provident fund paid over to herafter receipt of the pension is modified to the effect that theappellants are directed to adjust the proportionate amount whilemaking the pensionary payment. 18. As there was a genuine dispute regarding the applicability ofthe pensionary benefit to the respondent, we are of the view that thedirection of the learned single Judge directing the appellant to payinterest at the rate of 9% per annum is to be modified to the effectthat the belated payment of pension would carry 50% of statutoryinterest, if any, payable by the appellant.19. With this modification, the writ appeal is dismissed. Nocosts. The connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmfTo1. Government of India, representedby its Secretary, Ministry of Social Justice & Empowerment, Room No.604, 'A' Wing, Shastri Bhavan, New Delhi 110 001.2. The Joint Secretary and Chairman, District Rehabilitation Centre Scheme, Ministry of Social Justice & Empowerment, Room No.611, 'A' Wing, Shastri Bhavan, New Delhi 110 001.3. The Project Director, District Rehabilitation Centre Scheme, Central Administrative & Co-ordinationUnit, 4 Vishnu Digamber Marg, New Delhi.1 cc To Ms.R.Vaigai, Advocate, SR.2406.1 cc To Mr.S.Udayakumar, Advocate, SR.2113.Writ Appeal No.1108 of 2007 MDR(CO)RVL 19.02.2008