D.G Central Council For Research ... vs Union Of India ...
2023 Latest Caselaw 14368 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:31898-DB
 
Court No. - 1
 

 
Case :- WRIT - A No. - 20256 of 2016
 

 
Petitioner :- D.G Central Council For Research In Unani Medicine And Ors.
 
Respondent :- Union Of India Thru.Secy.Deptt.Of Ayush Ministry Of Health
 
Counsel for Petitioner :- Jageshwari Prasad Mathur
 
Counsel for Respondent :- A.S.G.,Praveen Kumar
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri J.P. Mathur, learned counsel for the petitioner and Sri Praveen Kumar, learned counsel representing the respondent no. 3-claimant.

2. Under challenge in this petition filed under Article 226 of the Constitution of India is the judgment dated 05.02.2016 passed by the Lucknow Bench of Central Administrative Tribunal, whereby O.A. No. 548 of 2014 filed by the respondent no. 3-claimant has been allowed and the order dated 27.11.2014, which was under challenge therein, has been quashed. The learned Member of the Central Administrative Tribunal by the impugned judgment and order has further directed the petitioners to treat the respondent no. 3-claimant beneficiary of 'Old Pension Scheme' and accord her all the consequential benefits. The learned Member has also issued a direction to the petitioners to continue to extend the benefit under the G.P.F. Rules and deduct monthly subscriptions regularly, without any interruption.

3. It has been argued by learned counsel for the petitioners, Sri J.P. Mathur that the Central Administrative Tribunal has completely erred in law in giving a finding that the respondent no. 3-claimant acquired the temporary status with effect from 01.01.1996 and as such she is covered by Rule 13 of the Central Civil Service (Pension) Rules 1972 (hereinafter referred to as 'C.C.S. (Pension) Rules'). It has further been argued by learned counsel for the petitioners that as a matter of fact pension-scheme has been made applicable in the Central Council for Research in Unani Medicine (Petitioner No. 1) with effect from 01.01.2004 and regularization of her services was done with effect from 03.02.2004, as such she will be covered by the New Pension Scheme. In this view, the submission is that the judgment passed by the Central Administrative Tribunal is liable to be set aside.

4. Per contra, Sri Praveen Kumar, learned counsel representing the respondent no. 3-claimant has vehemently argued that as a matter of fact the case of the respondent no. 3-claimant was not based on the fact that she was accorded temporary status with effect from 01.01.1996, rather, her claim for being governed under the Old Pension Scheme was based on the fact that having been initially appointed on ad-hoc basis, the claimant-respondent no. 6 was appointed on the basis of recommendation of a selection-committee on the temporary post of Assistant Research Officer in the then existing pay-scale, admissible to the regular incumbents on ad-hoc basis, however, her services rendered by her in ad-hoc capacity were followed by regularization on 03.02.2004, without any interruption. It is further stated that immediately after the order dated 12.07.1994 appointing the respondent no. 3-claimant in the regular scale of pay on the recommendation of the selection-committee was made on the post of Assistant Research Officer, regular deduction for G.P.F. was made from her salary, which continued till passing of the order dated 27.11.2014, whereby the said deduction was abruptly discontinued without any rhyme or reason. In this view, submission of Sri Praveen Kumar is that the respondent no. 3-claimant has all along been treated to have been covered under the Old Pension Scheme immediately after her appointment on the basis of recommendation made by the selection-committee by means of the order dated 12.07.1994, hence now treating her to be covered under the New Pension Scheme is highly arbitrary. It is further argued that it is a case where ad-hoc appointment of the respondent no. 3-claimant was followed, without any interruption by regular appointment by means of an order dated 03.02.2004 and since the respondent no. 3-claimant has all along been treated to be the beneficiary of Old Pension Scheme for the reason that after 12.07.1994 regular deduction for G.P.F. was made from her salary, as such she is entitled to be governed by the Old Pension Scheme.

5. It has also been argued by Sri Praveen Kumar that after decision of the original application by the Central Administrative Tribnal and after filing of the instant writ petition several developments have taken place, which now at least entitles the respondent no. 3-claimant to be covered by the Old Pension Scheme. He has drawn out attention to a Circular issued on 3rd of March, 2023 by the Government of India, whereby options have been invited till 21.08.2023 for opting to Old Pension Scheme from amongst those, those who are held to be entitled to be governed by the New Pension Scheme. He has also stated that under the Central Government even the casual labourers have also been accorded the benefit of Old Pension Scheme.

6. In view of the aforesaid submissions made by the learned counsel for the respective parties, it appears that the case set up by the respondent no. 3-claimant was not considered by the Central Administrative Tribunal while passing the impugned order. The basis of holding the respondent no. 3-claimant to be entitled to be governed by the Old Pension Scheme is not what was pleaded by her before the Tribunal; rather the Central Administrative Tribunal has recorded a finding that since she was accorded temporary status with effect from 01.01.1996, as such she will be governed by Old Pension Scheme in terms of the provisions contained in Rule 13 of C.C.S. (Pension) Rules.

7. When we peruse the judgment passed by the Central Administrative Tribunal, which is under challenge before us in this writ petition, what we find is that the contentions raised by the respondent no. 3-claimant were not considered. The Tribunal in fact appears to have taken into consideration something which is not pleaded at all by the parties.

8. Besides the aforesaid, we also take notice of the later developments, which have taken place in respect of coverage of employees under the Old/New Pension Scheme. In this regard, reference may be made to be Circular dated 03.03.2023, as pointed out by learned counsel representing the respondent no. 3-claimant. Reference may also be made to the decision said to have taken by the Government of India, but providing the coverage of Old Pension Scheme even to casual labours, thus, for the reasons aforesaid, we are of the opinion that the judgment and order passed by the Central Administrative Tribunal, which is under challenge before us in this writ petition, is not sustainable.

9. However, having observed as above, it is also to be seen that claim of the respondent no. 3-claimant for being governed under the Old Pension Scheme has also not been considered, based on the stand taken by her to the effect that after 12th of July, 1994 she was covered under the Old Pension Scheme in as much as the deduction for G.P.F. was being regularly made and that she has all along been treated to have covered under the Old Pension Scheme.

10. We also take notice of the fact that the matter needs to be considered for coverage of the respondent no. 3-claimant under the Old Pension Scheme afresh not only on the grounds taken by her while filing the original application, but also on the grounds, which are now available to her on account of later developments, which have taken place after decision of the original application by the Central Administrative Tribunal, as already pointed out by the learned counsel for the respondent no. 3-claimant and noticed by us above.

11. We, thus, allow the writ petition and quash the judgment and order dated 05.02.2016 passed by the Lucknow Bench of the Central Administrative Tribunal in Original Application No. 542 of 2014.

12. We also direct the competent authority of the Central Council for Research in Unani Medicines to consider the claim of the respondent no. 3-claimant afresh of her coverage under the Old Pension Scheme on the basis of the grounds pleaded by her in the original application as also on the basis of later developments, which have taken place after decision of the matter by the Central Administrative Tribunal, which have been noticed by us in the preceding paragraphs of this judgment and order.

13. The decision afresh under this order shall by taken by the competent authority within a period of 10 weeks from the date of production of a certified copy of this order.

14. We have been informed that the respondent no. 3-claimant has retired from service on 30th of September, 2022, as such the time prescribed in this order for taking decision afresh shall be strictly adhered to by the competent authority.

15. There will be no order as to costs.

(Subhash Vidyarthi, J.) (Devendra Kumar Upadhyaya, J.)

Order Date :- 8.5.2023

A.Nigam