Rajasthan Housing Board vs Sunil Chaturvedi S/O Shri Ramesh ...
2021 Latest Caselaw 6604 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              D.B. Special Appeal Writ No. 688/2020

Rajasthan Housing Board, Jyoti Nagar, Jaipur Through Its
Secretary.
                                                                  ----Appellant
                                   Versus
Sunil Chaturvedi S/o Shri Ramesh Chand, Aged About 50 Years,
Resident Of 722/31, Deep Bhawan, Nagra, Ajmer (Raj.)
                                                                ----Respondent

For Appellant(s) : Mr. J.K. Singhi, Sr. Advocate assisted by Mr. Anuroop Singhi and Mr. Tarun Kumar Verma For Respondent(s) : Mr. M.C. Taylor with Ms. Vandana Chouhan

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

Order

17/11/2021

Present one is a special appeal arising out of the order dated

14.12.2019 passed by the learned Single Judge.

Brief facts of the matter are that the petitioner was

appointed as Data Entry Operator on work charge basis with the

respondent-Rajasthan Housing Board. He had worked on the said

post from 01.02.1990 to 28.11.1990 and his services were

verbally terminated on 28.11.1990. Aggrieved by the same, the

petitioner preferred a writ petition before this Court and after

issuance of the notice on the same, his services were terminated

by a written order dated 29.05.1993.

Aggrieved by the termination, the employee raised his claim

before the Labour Court and the same was allowed vide award

(2 of 5) [SAW-688/2020]

dated 27.02.1999. The Labour Court directed the employee to be

reinstated with continuity of service and 50% of the back wages.

In pursuance to the Award of the Labour Court, the petitioner was

reinstated and he joined his services on 09.04.1999.

Writ petition of the department against the Award of the

Labour Court was dismissed & Special Appeal thereupon was also

dismissed.

Soon after the reinstatement, the employee continuously

submitted representations to the employer for granting regular

pay scale to him and ultimately vide order dated 25.02.2005, his

services were regularised and he was granted regular pay scale.

The controversy of the present petition arose when after

almost a period of ten years, vide letter dated 02.05.2014 of the

Department, the employee was directed to fill up form S-1 for

membership of the New Contributory Pension Scheme, 2004

stating him to be falling under the New Pension Scheme. It was

also informed vide letter dated 08.10.2014 that till S-1 form is not

filled by the employee, his salary would not be released.

Aggrieved against the same, the employee preferred a writ

petition before this Court. The learned Single Judge, after

considering Rule 10 and 11 of the Employees Pension Regulation,

(hereinafter referred to as the Regulations of 1992), which

governed the employees of the respondent-Department and after

considering letter dated 20.09.2001 of the department observed

that the New Pension Scheme would not be applicable to the

petitioner and he would be entitled to receive pension in terms of

the Pension Scheme,1993. The writ petition of the petitioner was

thus allowed.

(3 of 5) [SAW-688/2020]

Against the said order, present special appeal has been

preferred by the respondent-Department with the averments that

as the petitioner was regularised on 25.02.2005, in terms of Rule

10 of the Regulations of 1992, he would be governed by the new

pension scheme of the year 2004 and not the old pension scheme.

Heard the parties and perused the record.

We are of the opinion that the present special appeal of the

appellant deserves to be dismissed for the following reasons:-

Firstly, the award of the Labour Court vide which it was

directed that the services of the petitioner would be deemed to be

continuous from the date of his initial appointment having become

final, the same cannot be re-appreciated in the present appeal.

Meaning thereby the date of the initial appointment of the

petitioner i.e. 21.03.1990 would be treated to be his actual date of

appointment for all purposes.

Secondly, the employer did not ask the petitioner to

contribute to new pension scheme for nearly 10 years after

passing the order for his regularization. Thus, according to the

employer also, the petitioner was covered by the old pension

scheme.

Thirdly, a perusal of the New Contributory Pension Scheme,

2004 itself makes it clear that the same was applicable only for

those Board employees who were appointed in the services of the

Board on or after 01.01.2004. The introductory lines of this new

pension scheme reads as under:-

"In compliance with the Board decision, contributory pension scheme is introduced for those Board employees who are appointed in services of the Board on or after 01.01.2004."

(4 of 5) [SAW-688/2020]

Therefore it is crystal clear that the new pension scheme was

introduced to be applied only on those employees who were

appointed on or after 01.01.2004. By all means, the date of

appointment of the petitioner was 31.03.1990, he should have

been regularized after 10 years of such date and therefore the

new pension scheme would even otherwise be not applicable on

him.

Fourthly and lastly, the circular dated 08.09.1987 of the

Department available on record shows that it was the specific

direction of the department that all the employees who had

completed 10 years of service should be declared permanent. The

circular makes it clear that the petitioner though regularized in the

year 2005, was entitled to be made permanent in the year 2000

itself, after completion of his 10 years of service. Therefore too,

the petitioner could not be held to be governed by the new

pension scheme in terms of Rule 10 and 11 of the Regulations

1992. As observed and held by the learned Single Judge too, the

petitioner was qualified for the pension in terms of the scheme

prevailing at the relevant time and not the new pension scheme.

Counsel for the appellant placed reliance on a judgment

passed by the Supreme Court in Civil Appeal No(s).4387-

4388/2019, Factory Manager Kirloskar Brothers Ltd. Vs.

Laxman decided on 25.04.2019. That was a matter wherein

the petitioner filed a representation for change in his date of birth

after his retirement. The Hon'ble Apex Court held that the

employee could not have slept over his right for a period of 10

years and therefore, declined to grant any relief to him.

Counsel for the appellant also relied upon a judgment of the

Hon'ble Apex Court in the case of State of Punjab and Ors. Vs.

(5 of 5) [SAW-688/2020]

Balkaran Singh in Civil Appeal Nos.5847, 5853 and 5854 of

2005 decided on 18.10.2006. The ratio as laid down in the said

judgment would also not apply to the present matter as the same

was a matter where a suit for declaration was filed after a period

of 12 years of the order fixing the revised pay scale of the

employee. By no stretch, the aforementioned judgments can be

said to be applicable to the present matter where the employee

approached this Court soon after the letter dated 02.05.2014 was

served upon him.

In the present matter, on the contrary, the delay if any,

would be attributable to the department, who after regularisation

of the employee in the year 2005, called upon him to fill up the

form S-1 in the year 2014 after a lapse of 10 years.

In view of these observations, we do not find any ground for

interference in the judgment passed by the learned Single Judge.

Hence, the present appeal stand dismissed.

                                   (REKHA BORANA),J                                                  (AKIL KURESHI),CJ




                                   KAMLESH KUMAR/N.GANDHI/Aks/S-93









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