Delhi High Court
Prof R Chandra vs Gnct Of Delhi & Ors. on 23 September, 2015
Author: Pradeep Nandrajog
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : September 23, 2015
+ LPA 132/2014
PROF R CHANDRA ..... Appellant
Represented by: Mr.Biraja Mahapatra, Advocate
versus
GNCT OF DELHI & ORS ..... Respondents
Represented by: Mr.Abhishek Singh, Advocate for
Ms.Avnish Ahlawat, Advocate
LPA 133/2014
PROF R CHANDRA ..... Appellant
Represented by: Mr.Biraja Mahapatra, Advocate
versus
GNCT OF DELHI & ORS ..... Respondents
Represented by: Mr.Abhishek Singh, Advocate for
Ms.Avnish Ahlawat, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Challenge in LPA No.132/2014 is to the order dated November 18,
2013 dismissing R.P.No.584/2013 filed by the appellant and thereby not
reviewing the order dated September 12, 2013, which has been challenged
by the appellant in LPA No.133/2014.
2. Learned counsel for the appellant concedes that no appeal lies against
an order dismissing a review petition and thus LPA No.132/2014 is liable to
be dismissed on said ground alone.
3. As regards LPA No.133/2014, the relevant facts to be noted are that
the appellant was serving with the Regional Engineering College,
Kurukshetra (established by the State of Haryana) since August 03, 1970 till
June 23, 1982. The very next day i.e. on June 24, 1982 he was appointed as
an Assistant Professor under the Delhi Technological University
(Respondent No.2), earlier known as Delhi College of Engineering, which
was then an autonomous college under the Government of NCT Delhi and
as of today is a deemed university established by the Government of NCT of
Delhi. Service under respondent No.2 is governed by the CCS (Pension)
Rules, 1972 framed by the Central Government and the office
memorandums issued by the Central Government concerning pension of
Central Government Employees are applicable to the respondent No.2. The
appellant superannuated from service under respondent No.2 somewhere in
the year 2001 (exact date and month not disclosed in the pleadings) and the
dispute pertains to qualifying service being calculated for pension with
reference to the past service rendered by the appellant from August 03, 1970
till June 23, 1982 under the Regional Engineering College Kurukshetra.
Whereas the appellant claims a right for said period to be reckoned towards
pensionable service, the respondent No.2 pleads to the contrary.
4. While serving under the Regional Engineering College the respondent
was a member of the Contributory Provident Fund Scheme. When the
appellant submitted technical resignation with the Regional Engineering
College he received the amount payable to him as a member of the
Contributory Provident Fund Scheme from the Haryana Government, and
albeit belatedly, together with interest, deposited the amount with
respondent No.2 on July 16, 1997. The respondent No.2 did not reckon
service rendered by the appellant under Regional college of Engineering,
Kurukshetra as pensionable service in spite of retaining the contributory
provident fund amount received by the appellant from the State of Haryana
together with interest thereon from the date appellant received the amount
till when he deposited the same.
5. On August 29, 1984, OM No.28-10/84-Pension was issued by the
Department of Personnel, Government of India. Para 3 and para 5 thereof
being relevant need to noted. They read as under:-
"3. This matter has been considered carefully and the
President has now been pleased to decide that the cases of
Central Government employees going over to a Central
Autonomous Body or vice versa and employees of the Central
Autonomous Body moving to another Central Autonomous
Body may be regulated as per the following provision:-
(a) ......
(i) .....
Note ......
(ii) ......
(b) Autonomous Body where the Pension Scheme is not in
operation:
(i) .....
(ii) An employee of an Autonomous Body on permanent
absorption under the Central Government will have the option
either to receive CPF benefits which have accrued to him from
the Autonomous Body and start his service afresh in
Government or choose to count service rendered in that Body
as qualifying service for pension in Government by forgoing
employer's share of CPF contributions with interest thereon,
which will be paid to the concerned Government Department by
the Autonomous Body. The option shall be exercised within one
year from the date of absorption. If no option is exercised
within stipulated period, employee shall be deemed to have
opted to receive CPF benefits. The option once exercised shall
be final.
x x x
5. (1) The employees of a Central Autonomous Body or
Central Government, as the case may be, who have already
been sanctioned or have received pro rata retirement benefits
or other terminal benefits for their past service will have the
option either -
(a) to retain such benefits and in that even 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 revive until the whole amount has been
refunded. In other cases where pro rata retirement benefits
have already been sanctioned but have not yet become payable,
the concerned authorities 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 these 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."
6. With reference to para 3(b)(ii), the learned Single Judge has held that
since the option was not exercised by the appellant within one year from
date of absorption, the appellant would not be entitled to the benefit of the
office memorandum.
7. Para 5 of the office memorandum has been overlooked by the learned
Single Judge.
8. A reading of the office memorandum makes it clear that it has
retrospective operation, and for which we may simply highlight paragraph 5
of the office memorandum. Para 3(b)(ii) would obviously apply to such
employees who have been permanently absorbed under the Central
Government after the office memorandum has been issued and their cases
would be covered by said para. Those who had been permanently absorbed
earlier to the memorandum being issued would be covered by para 5 thereof.
The reason being that para 5 contemplates pro-rata retirement benefits or
terminal benefits for past service being received and gives an option to the
employee to either retain such benefits or to have the past service counted as
qualifying service as pension but after depositing the amount received along
with interest thereon from the date of receipt of the benefits till the deposit
with the autonomous body or the Central Government as the case may be.
9. Dismissing LPA No.132/2014 as not maintainable we allow LPA
No.133/2014. Impugned judgment dated September 12, 2013 dismissing
W.P.(C) No.916./2011 is allowed. Judgment dated September 12, 2013 is
set aside. A mandamus be issued to the respondents to disburse pension to
the appellant by recurring service reckoned with effect from August 03,
1970 till June 23, 1982 with the Regional Engineering College, Kurukshetra
10. Compliance be made within 6 weeks from today.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
SEPTEMBER 23, 2015
mamta
