Union Of India & Another vs Dalip Kumar
2010 Latest Caselaw 454 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P. (C.) No.12690/2009 & CM No.13359/2009

%                         Date of Decision: 27.01.2010

Union of India & Another                           .... Petitioners
                     Through Mr.V.K. Rao, Sr. Advocate with
                             Mr.Ayushya Kumar, Advocate

                                   Versus

Dalip Kumar                                               .... Respondent
                          Through Mr.Rajesh Srivastava, Advcoate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                   YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                      NO
3.     Whether the judgment should be reported in                  NO
       the Digest?


ANIL KUMAR, J.

*

The petitioner, Union of India through Secretary, Ministry of

Health & Family Welfare, challenges the order dated 7th July, 2009

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in TA No.444 of 2009 titled Dalip Kumar v. Union of India and

another directing the petitioner to treat the respondent covered under

CCRS Pension Scheme.

The respondent had filed a petition seeking grant of pension as

per the pension scheme in vogue when he acquired temporary status in

1997. Much after the grant of temporary status and continuing on the

said post in Group „D‟.

This is not disputed that petitioner was appointed to the

substantive post on 29th June, 2004 and by that time another scheme

referred to as "New Defined Contribution Pension Scheme" had been

introduced from 1st January, 2004.

The Tribunal has relied on statutory rule like Rule 13 of the CCS

(Pension) Rule, 1972 which categorically stipulates that qualifying

service of a government servant commences from the date he is asked

to charge on a temporary capacity provided that this temporary service

is followed without interruption by substantive appointment in the

same or in another service or post. The Tribunal noticed that the

respondent was granted temporary status which continued and he was

appointed in substantive post in Group D and, therefore, under Rule 13

his qualifying service would commence from the date of grant of

temporary status.

Learned counsel for the petitioner relying on Central Civil Service

(Pension) Rules, 1972 has contended that the rule is applied to

government servants appointed on or before 31st day of December, 2003

and it will not be applicable to the respondent as he was appointed to

the substantive post on 29th June, 2004. If Rule 13 of the CCS

(Pension) Rule, 1972 obligates commencing of qualifying service from

the date an employee takes charges of the post, on 29th June, 2004 on

appointment after continuous service on the temporary post, it will

relate back to 1997 when the temporary status was granted to the

respondent. Though new pension scheme was introduced from 1st

January, 2004, however, Rule 13 of CCS(Pension) Rules, 1972 has not

been abrogated by the new pension scheme salient features which are

as under:-

"Introduction of New Pension Scheme

Government of India have introduced a New Defined Contribution Pension Scheme replacing the existing system of Defined Benefit Pension System vide Government of India, Ministry of Finance, Department of Economic Affairs Notification, dated 22-12-2003 (copy enclosed). The New Pension Scheme comes into operation with effect from 1-1- 2004 and is applicable to all new entrants to Central Government service, except to Armed force, joining Government service or order after 1-1-2004.

The salient features of the New Pension Scheme are as follows:-

1. The New Pension Scheme will work on defined contribution basis and will have two tiers - Tier-I and II. Contribution to Tier-I is mandatory for all Government servants joining Government service on or after 1-1-2004, whereas Tier-II will be operational and at the discretion of Government servants.

2. In Tier-I, Government servants will have to make a contribution of 10% of his Basic Pay plus DA, which will be deducted from his salary bill every month by the PAO concerned. The Government will make an equal matching contribution.

3. Tier-I contributions (and the investment returns) will be kept in a non-withdrawable Pension Tier-I Account. Tier-II contributions will be kept in a

separate account that will be withdrawable at the option of the Government servant. Government will not make any contribution to Tier-II account.

4. The existing provisions of Defined Benefit Pension and GPF would not be available to new Government servants joining Government service on or after 1-1- 2004."

The scheme is applicable to all new entrants to the Government

service, however, it does not take away the rights of old entrants prior of

31.12.2003. In the facts and circumstances, on the plea of the

petitioner, the order of the Tribunal directing the petitioner to treat the

applicant covered under CCRS Pension Scheme cannot be faulted.

There is no illegality or irregularity in the order of the Tribunal dated 7th

July, 2009 requiring any interference by this Court. The writ petition

is, therefore, dismissed.

ANIL KUMAR, J.

January 27, 2010                                   MOOL CHAND GARG, J.
'rs/Dev'