The Delhi High Court expounded on the petitioners' uninterrupted services, irrespective of their initial temporary capacity, which were subsequently regularized.
The High Court firmly established that these services should not be ignored or undervalued. Instead, the employees should be considered as having been in service before January 1, 2004, falling under the governance of the Old Pension Scheme.
Brief Facts:
A set of Writ Petitions were filed before the High Court to obtain directives from the Respondents to include the Petitioners in the General Provident Fund (hereinafter referred to as “GPF”) or the Old Pension Scheme (hereinafter referred to as “OPS”), instead of treating them as employees covered under the New Pension Scheme (hereinafter referred to as “NPS”).
Brief Background:
The Petitioner was initially appointed as an ad-hoc Lecturer at Khalsa College for two months. Based on the recommendation of a Selection Committee, the Petitioner was appointed as a Lecturer temporarily. The Petitioner was absorbed permanently into the college. In 2007, the Petitioner was approved for promotion to a Lecturer on Senior Scale, following the recommendations of a Selection Committee.
Until 2014, the Petitioner was treated as an employee under the OPS. However, Respondent No. 2 notified the College that the Petitioner had been erroneously assigned a GPF number and should be covered under the NPS. Despite the College's request to reconsider the decision, Respondent No. 2 refused to reverse it. The Petitioner made a representation to Respondent No. 2, seeking restoration of OPS status, but to no avail.
Respondent No. 1 issued an Office Memorandum, advising the Petitioner to open the PRAN under NPS for the transfer of accumulated contributions to the Central Recordkeeping Agency.
Two more petitioners had faced the same circumstances and thus filed writ petitions before this Court.
Contentions of the Petitioners:
It was contended that NPS does not apply to Petitioners because the Scheme is intended for "new entrants" who were appointed after the cut-off date when NPS came into force. The Petitioners could not be considered as new entrants or appointees since they were not appointed at Delhi University after the specified date. The term "new entrant" may only refer to individuals who joined the service for the first time after 01.01.2004 through open market recruitment.
According to Clause 1(h) of the University of Delhi Ordinance, Statute 28-A, "qualifying service" is defined as service rendered in a substantive capacity. The Statute states that full-time service in a temporary capacity without interruption, followed by confirmation in the same post, shall be counted as a qualifying service. There was hence, no distinction between temporary and permanent employees regarding pension entitlement in Statute 28-A.
Contentions of the Respondents:
It was contended that the petitioners were substantively appointed on a permanent basis after January 1, 2004, making them fall under the category of "new entrants" and subject to the NPS. Therefore, they cannot claim benefits under the OPS.
It was further asserted that Petitioners' reliance on Statute 28-A and its definition of "qualifying service" is misplaced since it does not apply to them as they were appointed on a permanent basis only after January 1, 2004. Their appointments were fresh and not absorption or regularization.
Contentions of the UGC:
It was contended that UGC has the authority to coordinate and establish standards in universities. Section 12 University Grants Commission Act, 1956 (hereinafter referred to as “UGC Act”) focuses on this coordination and standard determination.
On December 22, 2003, the Government of India introduced the NPS, which became effective on January 1, 2004. All new recruits joining the Central Government after January 1, 2004, were required to be covered under this scheme. Consequently, on December 16, 2004, the UGC issued a letter instructing all Central Universities and funded colleges to implement the NPS from January 1, 2004, and ensure that all individuals joining the university or college after the specified date are compulsorily included in the NPS.
Observations of the Court:
The High Court referred to the case A.R.D. Nayagam Vs. The Director, Local fund Audit, Chennai & Others, [2012 SCC OnLine Mad 5098] where it was held that if an employee enters service prior to January 1, 2004, in any capacity, and renders continuous and uninterrupted service followed by regularization/absorption, the period of service should count towards qualifying service for pension under OPS.
It was opined that it is unjust and unfair to treat them as new recruits under NPS and deprive them of pension benefits under OPS. The Court highlighted that the petitioners' uninterrupted services, even in a temporary capacity, followed by regularization, cannot be disregarded, and they should be deemed to be in service prior to January 1, 2004, and governed by OPS. Therefore the Court ordered the respondents to issue necessary corrective orders accordingly.
The High Court concluded that the entire period of service of the petitioners, from their initial appointments on a temporary basis until their regularization, should be considered as qualifying service for pension, and they should be treated as being in service prior to January 1, 2004, and governed by OPS. The Bench declared that NPS is inapplicable to the petitioners, and the respondents are directed to take appropriate actions based on this, such as user profile information.
The decision of the Court:
The Delhi High Court accordingly, allowed the writ petitions.
Case Title: Dr. Ravindra Narayan Mishra v Sri Guru Tegh Bahadur Khalsa College And Ors.
Case No.: Writ Petition Civil 2060 of 2019
Coram: Hon'ble Ms. Justice Jyoti Singh
Advocates for Petitioner: Advs. Dr. Amar Nath Advocate and Mr. Santosh Kumra Sahu
Advocates for Respondent: Advs. Mr. Santosh Kumar Advocate, Mr. Mohit Aggarwal, Advocate, Mr. Arjun Harkauli Advocate and Ms. Neha Verma
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