Ashok Mudgal vs Govt Of Nct Of Delhi And Others
2010 Latest Caselaw 3249 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 W.P.(C.)No.12246/2009

%                           Date of Decision :14.07.2010

ASHOK MUDGAL                                                     .... Petitioner
                                Through Mr.M.M.Sudan, Advocate

                                         Versus

GOVT OF NCT OF DELHI AND OTHERS                             .... Respondents
                                Through Mr.Rajiv Nanda and Mr.Rachna
                                        Saxena, Advocates

                                         WITH


 +                                W.P. (C.) No.12247/2009

 BHUPESH KUMAR AND OTEHRS                      .... Petitioners
                 Through Mr.M.M.Sudan, Advocate

                                         Versus

 GOVT OF NCT OF DELHI AND OTHERS                            .... Respondents
                                Through Mr.Rajiv Nanda and Mr.Rachna
                                        Saxena, Advocates


MOOL CHAND GARG, J. (Oral)

*

1. This common order shall dispose of the aforesaid two writ petitions which arise out of order dated 17.02.2009 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as the "Tribunal") in OA Nos. 654/2007 and 593/2008.

2. By the impugned order, the Tribunal dismissed the aforesaid Original Applications praying for permitting the petitioners to also avail the benefit of the Pension Scheme which was in existence before their joining the services of Government of NCT of Delhi (for short "GNCTD") though that Scheme was made applicable to those employees of Delhi Energy Development Agency (DEDA) who were re- deployed before 1.1.2004.

3. The petitioners were however granted benefit of New Pension

Scheme which was introduced by the GNCTD and which was in existence at the time when the petitioners herein joined the services of the GNCTD in January, 2005 i.e. after 1.1.2004.

4. It was the submission made before the Tribunal that since it was a case of transfer of services to the GNCTD, the petitioners were also entitled to all benefits, including the benefit of old Pension Scheme which was extended to the employees who joined earlier as some of those employees were even junior to the petitioners.

5. The relevant rules which govern the redeployment of surplus staff is CCS (Redeployment of Surplus Staff) Rules, 1990. But, the same apply where a Government servant, on being declared surplus, is redeployed outside his cadre in any other department of the Government.

6. It may be noted that as an employee of Delhi Energy Development Agency (DEDA) the petitioners were not employees of the Government of NCT of Delhi for the reason DEDA is an autonomous body registered as a Society under the Society's Registration Act. Strictly speaking, the petitioners could not be treated as surplus Government staff entitled to redeployment. Their redeployment under Government service was purely a humanitarian act.

7. As per the transfer order passed by the GNCTD, it only provides for relaxation in recruitment rule as provided in the CCS (Redeployment of Surplus Staff) Rules, 1990 regarding mode of recruitment, upper age limit, medical examination, etc. In this order, it was further stated that the past services rendered by the surplus employees prior to their redeployment shall not count towards seniority in the posts on which they were re-deployed under the GNCTD. However, in other service matters they will be treated as appointed by transfer in the public interest.

8. It is submitted by the petitioners that this should mean that all other conditions of service which have been made applicable to their counterpart such as benefit of Pension Scheme which was in existence prior to 1.1.2005 and benefit of which was extended to those employees who were transferred to the GNCTD earlier should

also be extended to the petitioners. However, the aforesaid submission has not been accepted by the Tribunal for cogent reasons inasmuch as, once the petitioners who have been redeployed subsequent to 1.1 2004 and the Government has already initiated another pension scheme, they cannot take the benefit of old Pension Scheme, which was available to those who were in service of the GNCTD at the relevant time. Obviously, the petitioners are the case of new entry and therefore, it is only when they come to the service of GNCTD that they can enjoy the benefit of pension scheme, which is applicable at the time of their entry.

9. The Tribunal had taken note of all the contentions raised before it, which have also been raised before this Court, but has not been able to convince itself of the submissions made. The relevant observations made by the Tribunal are reproduced hereunder:-

"13. Contention has been raised on behalf of the Applicants that the employees who were junior to them in DEDA but who joined the government on redeployment earlier than them have been given the advantage of old pension scheme. It is only because of fortuitous circumstances of their redeployment under the government before 1.01.2004, they have been able to get the benefit of old pension scheme and GPF scheme. The employees who were redeployed after 1.01.2004 are senior to many of the employees who were redeployed before 1.01.2004 and only on the basis of such accident of circumstances they cannot be discriminated and not given the benefit of old pension scheme. It was also contended that the Applicants are not responsible for delay in redeployment under the government. It is the responsibility of DEDA and GNCTD. In our considered opinion, the Applicants cannot allege discrimination vis-a- vis their juniors who became part of the old pension scheme by virtue of joining the service under the government before 1.01.2004 and also before the Applicants, who are senior to them. The right of the employees for enjoying service conditions including pension applicable to those who joined the government after 1.01.2004 have not been denied to them. The Applicants have been given the benefit of pension scheme albeit it is the new pension scheme applicable after 1.01.2004. The crucial date of application of pension scheme would be the date of their joining the government. Since they have joined the government after 1.01.2004, they cannot be given advantage of the old pension scheme retrospectively. The appointment by transfer has not given

the Applicants the benefit of appointment from a retrospective date. It would be an appointment only from the date they have joined the service of the government. Under these circumstances, notwithstanding that the employees junior to the Applicants have got the benefit of old pension scheme, the Applicants would not be entitled for induction in old pension scheme and GPF scheme retrospectively. We cannot give any relief to the Applicants, in view of the clear provisions of Rules, in spite of the fact that juniors have got the advantage of old pension scheme. The fact that the Applicant in OA 593/2008 was initially in pensionable scheme also would not make any difference because the Applicant on his own volition had joined an autonomous body and his appointment on transfer also would be treated as appointment from the date on which he joined the service of the government. It cannot make him entitled for retrospective application of pension rules in his case also.

14. We have also considered the letter dated 12.07.2005, to which reference has been made in paragraph 5 above. It is not with reference to the Applicants claim. This is with reference to queries made by some departments regarding pensionary benefits to be given to the redeployed surplus staff. The clarification given in the aforesaid letter would apply only to the employees redeployed before 1.01.2004. For employees redeployed after 1.01.2004, obviously the abovementioned clarification would not apply because the GPF scheme has also ceased to be in existence."

10. With the aforesaid reasoning, the Tribunal has dismissed the Original Applications filed by the petitioners. We do not find any reason to interfere with the aforesaid reasoning given by the Tribunal while dismissing the original applications inasmuch as we are agreeable with the Tribunal that once the services of the petitioners were transferred to the GNCTD, there cannot be any discrimination vis-à-vis their juniors who became part of the old scheme by virtue of joining the government before 1.1.2004, even if the petitioners were senior to them. The right of the employees for joining pension service applicable to those who joined government after 1.1.2004 has not been denied to the petitioners. Since the petitioners had joined the Government after 1.1.2004, they cannot take advantage of the old Pension Scheme retrospectively. The appointment by transfer has not given the petitioners the benefit of appointment from a

retrospective date. It would only be from the date when they joined the services of GNCTD. Hence, both the writ petitions are dismissed but with no order as to costs.

                                       MOOL CHAND GARG, J




JULY 14, 2010                          PRADEEP NANDRAJOG,J
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