Delhi High Court
Para Medical Technical Staff ... vs North Delhi Municipal ... on 30 January, 2019
$~48.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision:30.01.2019
% W.P.(C) 984/2019
PARA MEDICAL TECHNICAL STAFF WELFARE ASSOCIATION OF
MCD AND ANR. ..... Petitioner
Through: Mr. Tarun Sharma with Ms. Akansha
Kapoor and Mr. Pradeep Singh, Advs.
versus
NORTH DELHI MUNICIPAL CORPORATION. .... Respondent
Through: Mr. Gaurang Kanth with Mrs. Biji
Rajesh, Mr. Aman, Advs.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE PRATEEK JALAN
VIPIN SANGHI, J. (ORAL)
C.M. No. 4411/2019
Exemption allowed, subject to all just exceptions. The application
stands disposed of.
W.P.(C) 984/2019
1. The petitioner assails the order dated 22.10.2018 passed by the
Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal)
in O.A. No. 4311/2017. The Tribunal has rejected the said Original
Application preferred by the petitioners wherein the relief sought by them
was that they should be treated as covered by the Old Pension Scheme and
not by the New Pension Scheme.
2. The petitioner No. 2 - Amit Jain was initially appointed as a casual
labourer on 14.12.2001. The petitioner No.1 association espouses the cause
of petitioner No. 2 and presses the petition in respect of others similarly
situated as petitioner No.2.
3. The services of petitioner No.2 were regularised on 10.10.2008. The
regularisation was made effective from 01.04.2006. The issue before the
Tribunal was whether such like employees were entitled to be covered under
the Old Pension Scheme or New Pension Scheme. There is no dispute that
the members of the petitioner association and petitioner No.2 were entitled
to be covered by a Pension Scheme, and the only issue was whether the said
coverage would be under the Old Pension Scheme or the New Pension
Scheme. In this regard, it is relevant to take note of, firstly, the office
memorandum dated 26.02.2016 issued by the DoP&T on the subject of
casual labourers with temporary status- clarification regarding contribution
to GPF and Pension under the Old Pension Scheme. In so far as it is
relevant, this office memorandum states as follows:
"1. Undersigned is directed to refer to this Department's
OM No. 51016/2/90-Estt (C) dated the 10th September, 1993
vide which a scheme for grant of temporary status to the
casual employees was framed. The scheme applied to those
casual labourers who were in employment on the date of the
issue of the OM and had rendered one year of continued
service in Central Government Offices, which meant that they
must have been engaged for a period of at least 240 days (206
days in the case of offices observing 5 days week) . The scheme
did not apply to Departments of Telecom & Posts and Ministry
of Railways.
2. As per the scheme, after rendering three years'
continuous service after conferment of temporary status, the
casual labourers were to be treated at par with temporary
Group D employees for the purpose of contribution to the
General Provident Fund. Further, after their regularisation,
50% of the service rendered under temporary status would be
counted for the purpose of retirement benefits.
6. The position has been reviewed in the light of the Court
judgments in consultation with the Department of Expenditure.
It has now been decided that the casual labourers who had
been granted temporary status under the scheme, and have
completed 3 years of continuous service after that, are entitled
to contribute to the General Provident Fund.
8. It is emphasised that the benefit of temporary status is
available only to those casual labourers who were in
employment on the date of the issue of the OM dated 10 th
September, 1993 and were otherwise eligible for it. No grant
of temporary status is permissible after that date. The
employees erroneously granted temporary status between
10.09.1993 and the date of Hon'ble Supreme Court judgment in
Union of India And Anr. vs. Mohan Pal, 2002(3) SCR 613
delivered on 29 April, 2002, will however be deemed to have
been covered under the scheme of 10.09.93." (emphasis
supplied)
4. On 28.07.2016 another office memorandum was issued by the
DoP&T on the subject "Casual Labourers with temporary status-
clarification regarding contribution of GPF and Pension under the Old
Pension Scheme." This office memorandum, inter alia stated:
"The undersigned is directed to refer to this Department's OM
of even number dated 26th February, 2016 on the above subject
and to say that some references have been received in this
Department from various Ministries/ Departments seeking a
clarification with regard to the Para 7 of the referred OM.
2. The OM was issued in consultation with Department of
Expenditure and the Department of Pension and PW. It was
clarified vide that OM that this Department's O.M. dated 26th
April, 2004 had been quashed in a series of Orders/ Judgments.
The OM dated 26th February, 2016 restores the provisions of
the Scheme as it existed prior to the OM dated 26 th April, 2004.
The benefit of GPF and Old Pension Scheme is applicable to
all those casual labourers who are covered under the Scheme
of the 10th September, 1993 even if they have regularised on
or after 01/01/2004." (emphasis supplied)
5. From the above, it would be seen that the Governmental decision was
to give the benefit of GPF and Old Pension Scheme to all those Casual
Labourers, who were covered under the Scheme of 10.09.1993, which
scheme was framed for the purpose of regularisation of casual workers. It
was clarified that all those who were regularised under the scheme of
10.09.1993, even if they had been regularised on or after 01.01.2004, would
be covered under the Old Pension Scheme.
6. However, those who were regularised subsequently and not under the
Scheme of 1993, were not entitled to coverage under the Old Pension
Scheme.
7. To substantiate their claim, the petitioners sought to rely upon several
decisions before the Tribunal and the Tribunal, while passing the impugned
order has dealt with each one of them, specifically pointing out how they
were not relevant for raising the issue of the petitioner.
8. Mr. Sharma once again sought to refer to those very judgments in
support of his submissions. The crux of the petitioner's submission is that
like those casual labourers, who were covered under the regularisation
scheme of September 1993, the petitioner No.2 and the members of the
petitioner No.1 association are similarly situated. The only difference is in
the shift of time.
9. We cannot agree with the submission of Mr. Sharma for the reason
that when the Government decides to come out with a scheme for
regularization, grant of pension etc., it has to examine the aspect about the
financial burden that the exchequer would be put to, and it is in that light
that the Government decides, as a matter of policy, as to the nature and
extent of benefits which may be extended to a particular class of employees.
The petitioner do not have a choice in that matter and cannot, after taking
the benefit of regularization, which was not under the scheme of September
1993, seek to derive further benefits which were never intended to be
bestowed upon them.
10. We, therefore, find no merit in this petition.
11. Dismissed.
VIPIN SANGHI, J.
PRATEEK JALAN, J.
JANUARY 30, 2019/N.Khanna
