Muncipal Corporation Of Delhi vs R.K.S.Gaur & Ors.
2011 Latest Caselaw 1184 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No.6571/2010

%                       Date of Decision: 28.02.2011

Municipal Corporation of Delhi                               .... Petitioner

                       Through Mr.Himanshu Upadhyay, Advocate

                                 Versus

R.K.S.Gaur & Ors.                                       .... Respondents

                       Through Mr.M.K.Bhardwaj, Advocate for the
                               respondent No.1 with respondent No.1
                               in person.
                               Mr.Anurag Mathur, Advocate for the
                               respondent No.2.
                               Ms.Kailash Golani, Advocate for the
                               respondent No.3.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.       Whether reporters of Local papers may         YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?        YES
3.       Whether the judgment should be                YES
         reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioner, Municipal Corporation of Delhi has challenged the

order dated 3rd September, 2009 passed by Central Administrative

Tribunal, Principal bench, New Delhi in T.A No.570/2009 titled as

„R.K.S.Gaur v. MCD & Ors‟ directing the Municipal Corporation of Delhi

to count the erstwhile service rendered by respondent No.1 with the

Government of Sikkim without insisting on liability, which has been

dispensed with as per O.M dated 9th October, 1986.

2. The relevant facts pertinent to comprehend the controversies are

that respondent No.1 who is a post graduate teacher (Biology) had

worked under the Government of Sikkim, Education Department,

respondent No.2 from 2nd September, 1976 to 9th May, 1992.

3. The respondent No.1 pursuant to his application for the post of

Assistant Education Officer with the petitioner with prior permission of

respondent No.2 was appointed to the post of Assistant Education

Officer through UPSC against the regular vacant post of Assistant

Education Officer as on 21st April, 1992. The respondent No.2 had

tendered technical resignation to respondent No.2 and he was relieved

of his services, whereafter he joined the Municipal Corporation of Delhi

as Assistant Education Officer from 11th May, 1992 at Headquarter,

Education Department, Municipal Corporation of Delhi.

4. The respondent No.1 had been issued a service certificate dated

1st August, 1992 by the respondent No.2. Prior to that on 5th May, 1992

service certificate/book was transferred by respondent No.2. The

petitioner had also fixed the basic pay of respondent No.1 at Rs.3300/-

per month. While granting the basic pay of Rs.3300/- per month to the

respondent No.1 three advance increments were given on account of his

past services.

5. The respondent No.1 contended that he made various

representations from 15th March, 1993 till 2005 for counting his past

services of 17 years for retirement benefits. On 12th July, 1995 the

respondent No.2 had even transferred the GPF balance amounting to

Rs.36,061/- to the petitioner. The petitioner, however, also sought

transfer of pensionary contribution and other benefits with respect to

respondent No.1 for counting his past service of 17 years in calculating

his terminal benefits.

6. The respondent No.2 by its letter dated 23rd February, 2002

contended that on account of reciprocal arrangement between the

petitioner and Government of Sikkim, and as per standing instructions

vide O.M dated 9th October, 1986 issued by the Union of India, the pro-

rata pension contribution of the parental department has been

dispensed with. The petitioner, however, refused to consider O.M dated

9th October, 1986 and refused to count the services of the respondent

No.1 with effect from 2nd September, 1976 to 9th May, 1992 rendered

with the Government of Sikkim, respondent No.2 and also directed

respondent No.2 that until the amount against pro-rata pension

contribution is deposited by respondent No.2 or respondent No.1

himself his case would not be considered. A calculation slip was sent by

petitioner to respondent No.1 that on depositing the net amount of

Rs.1,38,320.16/- by respondent No.2, the case of the respondent no.1

would be considered.

7. Against the action of the petitioner not to consider the case of the

respondent no.1 to count his service with the Government of Sikkim

with effect from 2nd September, 1976 to 9th May, 1992 unless a net sum

of Rs.1,38,320.16/- is deposited by respondent No.2, respondent No.1

made various representations and also served a legal notice dated 4th

October, 2005 on the petitioner. The respondent No.1, thereafter, filed a

writ petition in the High Court of Delhi praying inter-alia to issue

directions to the petitioner to count the entire length of about 17 years

of his service from 2nd September, 1976 to 9th May, 1992 rendered with

respondent No.2 so as to consider the claim of the respondent No.1

while calculating his terminal/retiral benefits.

8. The writ petition filed by the respondent No.1 was contested by

the petitioner contending inter-alia that the O.M dated 9th October,

1986 is not applicable to the petitioner as it pertained to Central and

State Government whereas the petitioner is a local body and has not

entered into any reciprocal arrangement either with the Central

Government or State Government. The petitioner also contended that

even in respect of teachers of petitioners who joined Government of NCT

of Delhi, pro-rata pensionary charges were recovered by the

Government of NCT of Delhi and reliance was placed on letters dated 7th

June, 2005 from Government of NCT of Delhi to DDO, Delhi

Development Department. The petitioner also contended that pro-rata

pension contribution for the period the respondent No.1 worked with

Government of Sikkim is to be deposited with the petitioner either by

the Government of Sikkim, respondent No.2 or by respondent No.1

himself and placed reliance on item No.29 in Resolution No.1381 dated

23rd March, 1987.

9. The above noted resolution contemplated that every employee will

have an option to retain the benefits received from his previous

employer and to get the retirement benefits from the Municipal

Corporation of Delhi for the period of service rendered or surrender the

benefit received from the previous employer and get the pensionary

benefits on the basis of combined service. It further contemplated that

every employee who wants to get the benefit of past service for the

purpose of retirement benefit will have to exercise his option within one

year from the date of absorption in the corporation or from the date of

issue of orders whichever is later. The relevant Clause 6 of item No.29 of

Resolution No.1381 dated 23rd March, 1987 is as under:-

"6. Every employee will have an option to retain the benefits received from his previous employer and to get the retirement benefits from the Municipal Corporation only for the period of service rendered or surrender the benefit received from the previous employer and get the pensionary benefits on basis of combined service. Every employee who went to get the benefit of past service for the purpose of retirement benefits will have to exercise his option within one year from the date of absorption in the Corporation or from the date of issue of orders, whichever is later. If no option is exercised within the stipulated period, the employee shall be deemed to have opted to get the retirement benefits only for the period of service rendered in the Corporation. The option once exercised shall be final. The right to count previous service as qualifying service shall not revive until the amount on account of pro-rata retirement benefits or other terminal benefits already received is refunded along with interest thereon from the date of receipt of their benefits till the date of deposit with the Corporation. The length of previous service may be accepted on the basis of incontrovertible evidence like service certificate and other service record. The past service will not count towards seniority."

10. The stand taken by the Municipal Corporation of Delhi was

refuted by the respondent No.1 relying on a communication reference

No.F.5/24/83-UT.1 (Vol.1) dated 12th July, 1988 from the Under

Secretary to the Government of India to the Director of Education

categorically stipulating that counting of service for pensionary benefits

will be allowed in respect of those State Governments with which

reciprocal arrangements exists which include the Government of

Sikkim. It further stipulated that the benefit has been extended by

Ministry of Personnel, Public Grievances and Pension, Department of

Pension & Pensioners Welfare O.M.28/(10)/84-P&W-Vol.II dated 7th

February, 1986 and 27th May, 1988 and these orders will apply to the

employees of Central Government moving to State and their

autonomous bodies and vice verse who are in service on the date of

issue of such orders irrespective of the date of their absorption. The

respondent No.1 categorically contended that the reliance has been

placed by the petitioner on irrelevant documents including the alleged

letter dated 7th June, 2005 from the Deputy Secretary Accounts to the

DDO, Delhi Development Department. The Tribunal allowed the petition

of the respondent No.1 relying on O.M dated 9th October, 1986 holding

that a decision on administrative side is not to be overridden by a policy

decision of the Government which would apply even to a body like

Municipal Corporation of Delhi.

11. The petitioner has primarily challenged the order dated 3rd

September, 2009 passed by Central Administrative Tribunal on the

ground that the O.M dated 9th October, 1986 pertains to the Central

and State Government whereas the petitioner is a local body having its

own account and unless pro-rata pension contributed is deposited by

the Government of Sikkim or by the respondent No.1, he is not entitled

for the counting of his past services of 17 years with respondent No. 2

while computing his retiral pension. Regarding letter dated 12th July,

1988 of Government of India it has been contended that it does not

relate to issue of pro-rata pension contribution.

12. This Court has heard the learned counsel for the parties in detail

and has also perused the record. The petitioner has placed reliance on

its Resolution No.1381 dated 23rd March, 1987 which contemplates in

Clause 6 of item No.29, regarding counting of past service for

pensionary benefits, stipulating that every employee will have an option

to retain the benefits received from the previous employer and to get the

retirement benefits from the Municipal Corporation only for the period

of service rendered. The option was also given to surrender the benefits

received from the previous employer and to get the pensionary benefits

on the basis of combined service. The option contemplated under the

petitioner‟s resolution had to be exercised within one year from the date

of absorption or from the date of issue of orders whichever is later.

Clause 6 of the resolution of petitioner also categorically stipulated that

the right to count previous service shall not be revived until the amount

on account of pro rata retiremental benefits or other terminal benefits

already received is refunded along with interest thereon from the date of

receipt of benefit till the date of deposit with the Corporation.

13. The said resolution of the Municipal Corporation of

Delhi/petitioner also referred to O.M No.28/10/84-Pension Unit dated

29th August, 1984 which had allowed counting of past service for

payment of pensionary benefits. The Office Memorandum of 1984

categorically stipulated that a number of Central

Autonomous/statutory bodies have introduced pension scheme for their

employee on the lines of the pension scheme available to the Central

Government employees. It was also urged by the autonomous statutory

bodies that the services rendered by their employees under the Central

Government or other autonomous bodies before joining the autonomous

bodies may be allowed to be counted in combination with service in the

autonomous body, for the purpose of pension, subject to certain

conditions. Therefore, after consideration it was decided that the cases

of Central Government employees going to Central Autonomous bodies

or vice-versa and the employees of Central Autonomous bodies moving

to other central autonomous bodies shall be regulated in terms of the

office memorandum of 1984. For the autonomous statutory bodies

where the pension is in operation it was decided that the employee with

CPF benefits on permanent absorption in an autonomous body will

have the option, either to receive CPF benefits which had accrued to it

from the Government and start his service afresh in that body or choose

to count the service rendered in the Government as qualifying service

for pension in the autonomous body by forgoing Government‟s share of

CPF contribution with interest, which will be paid to the concerned

autonomous body/the concerned Government department. The option

had to be exercised within one year from the date of absorption, if no

option was to be exercised within the stipulated period the employee

was to be deemed to have opted to receive the CPF benefits.

14. The office memorandum of 1984 also defined "Central

Autonomous Body". Relevant paras 4 & 5 of office memorandum dated

29th August, 1984 are as under:-

"4. "Central autonomous body" means body which is financed wholly or substantially from cases or Central Governments". "Substantially" means that more than 50 percents of the expenditure of the autonomous body is met through Central Governments grants. Autonomous body include Central Autonomous body or a central university but does not include public undertaking.

Only such service which qualifies for benefits under the relevant rules of Government/Autonomous body shall be taken the account for this purpose.

5. (i) The employee of a Central Autonomous body or Central Government, as the cases may be who have already been sanctioned or have received pro-rata retirements benefits or other terminal benefits for their past service will have the option either:-

(a) to retain such benefits and in that event their past service will not qualify for pension under the autonomous body or the Central Government, as the case may be: or

(b) to have the past service counted as qualifying service for pension under the new organization in which case the Pro-rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit with the autonomous body or the Central Government, as the case may be. The right to count previous service as qualifying service shall not receive until the whole amount has been refunded. In other cases, where pro-rata retirement benefit have already been sanctioned but have not become payable, the concerned autonomous shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and

cancellation of the sanction. The option shall be exercised within a period of one year from the date of issue of those orders. If no option is exercised by such employees within, the prescribed time limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final.

(2) Where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only, if the previous employee accepts pension liability for the service in accordance with the principles laid down in this office memorandum. In no case pension contribution liability shall be accepted from the employee concerned."

15. The petitioner by another resolution No.1280 dated 6th February,

1986 had decided to implement the office memorandum dated 29th

August, 1984 in the Municipal Corporation of Delhi mutatis mutandis

with charges as relevant for implementation of this policy and

counting/past service rendered by officers/employees of Central

Government in MCD for all purposes including pension, gratuity etc.

The relevant para 4 of the resolution No.1381 dated 23rd March, 1987

item No.29 is as under:-

"4. Corporation vide Resolution No.1280 dated 06.02.86 has referred a Resolution that the policy of the Central Government as contained in their O.M.No.28/10/84- Pension Unit dated 29 August 1984 be implemented in the Municipal Corporation of Delhi Mutatis Mutandis with charges as relevant for implementation of this policy and counting/past service rendered by officers/employees of the Central Government in MCD for all purposes including pension, gratuity etc. to the Commissioner for report."

16. Consequent to the resolution No.1381 item No.29 the petitioner

had decided to count the previous service strictly on the terms and

conditions as given in the OM dated 29th August, 1984. In the case of

respondent No.1, the Government of Sikkim had issued the service

certificate on 1st August, 1992 and the petitioner on 5th August, 1992

had also fixed the pay of respondent No.1 at Rs.3300/- per month

against his erstwhile pay scale of Rs.3000-4500/- per month and had

also granted him three advance increments on the basis of his service

with the Government of Sikkim. At the time of absorption it was not

clarified that the respondent No.1 shall not be entitled for his pension

for the period he had served with the Government of Sikkim until the

contribution of pension by the Government of Sikkim shall be deposited

by the petitioner. This is also not disputed and cannot be disputed by

the petitioner that respondent No.1 had not received any retiral benefits

from the Government of Sikkim and consequently in terms of resolution

No.1381 dated 23rd March, 1987 item No.29 and office memorandum

dated 29th August, 1984, Clause 5(2), the respondent No.1 was not to

surrender any benefit to the petitioner as he had not received any such

benefits from the State Government of Sikkim and, therefore, the

respondent No.1 had become entitled to get the pensionary benefits on

the basis of combined services.

17. The basic intent behind the Office Memorandum dated 29th

August 1984 was to provide for a pension based combined service, and

it required a representation for the same to be made within a period of

one year. Since respondent no. 1 was appointed in the Municipal

Corporation of Delhi on 21st April, 1992 and due representation to

count his past services was made on 15th March, 1993, well within the

period of one year as required by the petitioner, the respondent no.1

cannot be denied the benefit of the counting his past services with

respondent no.2.

18. The office Memorandum No.14(5)86/TA/1029 dated 9th October,

1986 is regarding simplification of adjustment on account of allocation

of leave salary and pension between the Central and State Government

whereby it was decided to dispense with the system of allocation of

leave salary and pension between the Central and State Government.

19. As has been discussed hereinabove, the petitioner‟s Resolution

No.1381 dated 23rd March, 1987 item No.29 was adopted in order to

incorporate the O.M No.28/10/84-Pension Unit dated 29th August,

1984 and to further clarify the petitioners own Resolution No.1280

dated 6th February, 1986. In these circumstances the petitioner cannot

deny counting of previous service of the respondent No.1 even on the

plea that the OM dated 9th October, 1986 is not applicable to the

petitioner.

20. The petitioner could not have denied grant of complete pension to

the respondent No.1 after computing his service rendered with the

Government of Sikkim, on the ground that pro-rata pension

contribution of the Government of Sikkim of Rs.1,38,320/- has not

been deposited by the respondent No.2, in case the petitioner is entitled

for the said amount from respondent no.2. The item no.29 of resolution

No.1381 does not contemplate that unless and until the previous

employer will deposit their contribution, even if the previous employer is

liable for the same, the pension shall not be paid to the absorbed

employee on his retirement. The only restriction contemplated under

the said item No.29 of resolution No.1381 is that if the employee had

received the benefit from the previous employer then the absorbed

employee will surrender the benefit received from the previous

employer. This aspect has been further clarified in the office

memorandum dated 29th August, 1984, Clause 5(2) which categorically

states that when no terminal benefits for the previous service has been

be counted as qualifying service for pension only and in no case, the

pension contribution liability will be accepted from the employee

concerned. Admittedly the respondent No.1 had not received the pro-

rata pensionary benefits from the previous employer, State Government

of Sikkim and in the circumstances the right of the respondent No.1 to

claim pension on the basis of combined service i.e. the service rendered

with the State Government of Sikkim, respondent No.2 and the

petitioner could not be denied to the respondent No.1 in any manner.

Thus the condition that the amount of Rs. 1,38,320/- with interest,

should be deposited by the Govt. of Sikkim or by the petitioner, and

then only would his past services be counted while computing the

terminal benefits by the petitioner in letter dated 13th November, 2003

cannot be validated under the terms of the policy adopted by the

petitioner itself. Nor was any such condition informed to the respondent

no. 1 at the time of his absorption.

21. Even if on account of no plea on behalf of petitioner, it is entitled

to recover the pro-rata contribution of the pension payable to the

respondent No.1 on account of services rendered by him with

respondent No.2 on the ground that the office memorandum of 9th

October, 1986 does not pertain to Autonomous Statutory Corporations.

The petitioner may be entitled to claim the amount from the respondent

No.2, but it cannot deny the full pension of combined service to the

employee i.e respondent No.1 in the facts and circumstances. The

resolution No.1381 item No.29 also does not contemplate that the

absorbed employee in the autonomous statutory corporation will not be

entitled for the full pension unless the pro-rata contribution is given by

the previous employer to the autonomous statutory Corporation. In the

circumstances, on any of the grounds raised by the petitioner,

combined service pension to the respondent No.1 i.e for the period of

service rendered with respondent No.2 and period of service rendered

with petitioner cannot be denied.

22. With these directions the TA No.570/2009 titled R.K.S.Gaur v.

Municipal Corporation of Delhi and Ors is allowed and the present writ

petition is disposed of and the writ petition filed by the Petitioner/ MCD

is dismissed. The petitioner shall also be liable to pay a cost of

Rs.5000/- to the respondent No.1 in the facts and circumstances.

ANIL KUMAR, J.

February, 28th, 2011. VEENA BIRBAL, J.

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