Telangana High Court
Dr. Mrs Khursheed Khatoon, vs The Central Administrative Tribunal, on 9 July, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
Writ Petition No.17877 of 2024
ORDER:
(Per the Hon'ble Sri Justice Abhinand Kumar Shavili) Aggrieved by the order, dated 15.04.2024, passed in O.A.No.790 of 2018 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, 'the Tribunal'), the present Writ Petition is filed.
2. Heard Sri Yogesh Kumar, learned counsel representing Sri M.V.Hanumantha Rao, learned counsel appearing for the petitioner and Sri V.T.Kalyan, learned counsel representing the learned Deputy Solicitor General of India appearing for the contesting respondents.
3. Learned counsel for the petitioner had contended that the petitioner was initially appointed as Research Assistant in the year 1986 in the Central Council for Research in Unani Medicine, New Delhi and she was posted at Clinical Research Unit (Unani), Kurnool, Andhra Pradesh. The petitioner, after undergoing regular selection process was appointed as an ad hoc employee. After rendering considerable length of service, she was promoted as Assistant Research Officer and finally, the services of the AKS,J & LNA,J ::2:: wp_17877_2024 petitioner were regularized as Assistant Research Officer vide proceedings, dated 28.12.2004 with effect from 03.02.2004. The grievance of the petitioner is that though, she was appointed as Research Assistant way back in 1986 on ad hoc basis, that too, after undergoing regular selection process, the respondents were not paying pension to her, as per the Old Pension Scheme and they were paying pension only as per the New Pension Scheme on the ground that the services of the petitioner were regularized vide proceedings, dated 28.12.2004.
4. Aggrieved by the action of the respondents in not extending the old pension scheme, the petitioner has approached the Tribunal by filing O.A.No.790 of 2018 contending that the old pension scheme should be extended to the petitioner. Learned counsel further contended that the issue whether the persons who were appointed on ad hoc basis prior to 2004 and whose services were regularized after 2004 were entitled for old pension scheme or not was considered by the Delhi High Court vide common order, dated 06.02.2024 in W.P.(C). No.1691 of 2024 and CMA.No.6982-85 of 2024, wherein, the Delhi High Court has come to a conclusion that persons who AKS,J & LNA,J ::3:: wp_17877_2024 were appointed on ad hoc basis prior to 2004 and whose services came to be regularized after 2004 are entitled for old pension scheme.
5. Learned counsel for the petitioner had further contended that the issue raised in this case was decided by the Ministry of Personnel Public Grievances and Pension Department vide Office Memo, dated 03.03.2023, wherein, it was categorically held that persons who were appointed on ad hoc basis prior to 2004 and whose services were regularized in 2004 are entitled for old Pension Scheme. But, the Tribunal was pleased to dismiss the said O.A vide order, dated 15.04.2024 on the ground of delay and laches. Learned counsel further contended that the issue whether a case can be dismissed on delay and laches, more so, when an employee is claiming pension, was considered by the Honourable Supreme Court in Union of India v. Tarsem Singh 1, wherein the Honourable Supreme Court had held that the issue in respect of pension and monitory benefits are concerned, the cause of action is a recurring cause of action.
1 C.A.No.5151-5152 of 2008, dated 13.08.2008 AKS,J & LNA,J ::4:: wp_17877_2024
6. Learned counsel for the petitioner had further contended that the Tribunal had also dismissed the said O.A. on the ground that the petitioner has not challenged the order, dated 28.12.2004, wherein, the services of the petitioner were regularized with effect from 03.02.2004. When the services of the petitioner were regularized with effect from 03.02.2004, the question of not considering the case of the petitioner for grant of old pension would not arise. Learned counsel for the petitioner had further contended that this issue was dealt with in Rule 13 of CCS Pension Rules, 1972, (for short, 'the Rules') which reads as follows:-
13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:
Provided further that-
(a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and AKS,J & LNA,J ::5:: wp_17877_2024
(b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.
7. A perusal of the said Rule, makes it clear that persons who are appointed on temporary basis or ad hoc basis or substantively are also entitled to count their services. Admittedly, in the instant case, the petitioner was appointed way back in the year 1986, which would mean that she was appointed on ad hoc basis and Rule 13 of the Rules will come to the rescue of the petitioner. These aspects were not considered by the Tribunal. The Tribunal has also not considered the judgment rendered by the Delhi High Court (referred supra). Therefore, appropriate orders be passed in the Writ Petition by setting aside the impugned order, dated 15.04.2024 passed by the Tribunal in O.A.No.790 of 2018 and further direct the respondents to consider the case of the petitioner by extending the old pension scheme, as admittedly, she was appointed as Research Assistant way back in the year 1986, when the old pension scheme was in force.
8. On the other hand, learned counsel for the contesting respondents had contended that the services of the AKS,J & LNA,J ::6:: wp_17877_2024 petitioner were regularized and she was given order on 28.12.2004. In the said order, it was made clear that her services would be regularized with effect from 03.02.2004 and therefore, the question of extending the old pension scheme to the petitioner would not arise. Therefore, the Tribunal was justified in dismissing the O.A on the ground that the petitioner has not challenged the order, dated 28.12.2004 and also on the ground that the petitioner has approached the Tribunal with delay and laches. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.
9. This Court, having considered the rival submissions made by both the parties, is of the view that the Tribunal has not examined the case of the petitioner in terms of Rule 13 of the Rules and also in terms of the law laid down by the Honourable Supreme Court in Tarsem Singh's case (referred supra). The Tribunal was not justified in dismissing the said O.A. Therefore, the impugned order, dated 15.04.2024 passed in O.A.No.790 of 2018 by the Tribunal is liable to be set aside and accordingly, the same is set aside and the matter is remanded back to the Tribunal to re-examine of the case of the petitioner in terms AKS,J & LNA,J ::7:: wp_17877_2024 of the said Rules and also in terms of the law laid down by the Honourable Supreme Court in Tarsem Singh's case (referred supra) and pass appropriate orders in accordance with law.
10. With the above observations, the Writ Petition is disposed of. No order as to costs.
11. As a sequel, miscellaneous applications pending if any, shall stand closed.
_________________________________ ABHINAND KUMAR SHAVILI, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 09.07.2024 prat