The Union Of India vs Kanchan Bala ...
2023 Latest Caselaw 8615 Raj

[2023:RJ-JD:35580-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 13570/2022

1. The Union Of India, Through Director General, Indian Council Of Medical Research, Ansari Nagar, New Delhi 110029

2. The Director / Officer In-Charge, National Institute For Implementation Research On Non-Communicable Disease (Former DMRC), New Pali Road, Jodhpur.

----Petitioners Versus Smt. Kanchan Bala D/o Late Shri J.P. Vashistha, Aged About 32 Years, R/o. 142, Navdurga Nagar, Near Jhalamand Circle, Jodhpur 342005 (Rajasthan), (Presently Working On The Post Of Junior Hindi Translator In The Office Of NIIRND (DMRC), New Pali Road, Jodhpur).

                                                                    ----Respondent


For Petitioner(s)             :    Mr. M. S. Godara
For Respondent(s)             :    Mr. S. K. Malik

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

17/10/2023

1. The present writ petition has been filed against the order

dated 23.02.2022 passed by Central Administrative Tribunal,

Jodhpur Bench for short "the Tribunal", whereby the Original

Application No.290/00197/2020 preferred by the respondent-

applicant was allowed.

2. Briefly, the facts giving rise to the present writ petition are

that the respondent-applicant applied for the post of Junior Hindi

Translator in the pay scale of Rs.5000-8000 in the petitioner-

Department in the month of September, 2003. The respondent-

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applicant was selected and was issued appointment letter dated

15.11.2003. In pursuance of the letter dated 15.11.2003, she

joined on the post of Junior Hindi Translator on 24.11.2003. The

appointment of the respondent-applicant was purely on temporary

and adhoc basis upto 31.01.2004 against the lien vancancy. The

services of the respondent-applicant were extended up to

31.01.2005. Thereafter, in pursuance of the Office Memorandum

dated 01.04.2005, an appointment letter was issued in favour of

the respondent-applicant, granting continuity on the same post,

which was made effective w.e.f. 01.04.2005 (Annexure-7). The

appointment letter shows that she would be on probation for a

period of two years. The respondent-applicant continued to serve

the petitioner-Department on the post of Junior Hindi Translator.

3. The dispute arose with respect to the fact that whether the

respondent-applicant is a member of Old Pension Scheme or she

will come under the purview of New Pension Scheme, which

became effective on 01.04.2004. Since the representations

submitted by the respondent-applicant were not favourably

decided and she was placed under the New Pension Scheme

instead of being covered under Old Pension Scheme, she preferred

an Original Application before the Central Administrative Tribunal,

Jodhpur Bench.

4. The Tribunal after considering the reply filed and hearing the

learned counsel for the parties allowed the Original Application of

the respondent-applicant and directed the petitioner-Department

to make the respondent-applicant, a Member of the Old Pension

Scheme under Central Civil Services (Pension) Rules, 1972

(hereinafter referred to as CCS (Pension) Rules, 1972") in place of

[2023:RJ-JD:35580-DB] (3 of 7) [CW-13570/2022]

New Pension Scheme along with consequential benefits. Hence,

the present writ petition has been filed by the petitioner.

5. Learned counsel for the petitioner submitted that the

Tribunal has committed an error while allowing the Original

Application of the respondent-applicant, as her substantive

appointment is effective w.e.f. 01.04.2005. Since there was no

vacancy in the petitioner-Department before 31.12.2003,

therefore, for all intents and purposes, her appointment to the

post of Junior Hindi Translator is after 01.04.2004 and therefore,

as per the office memorandum dated 17.02.2020, the respondent-

applicant will be required to be placed under the New Pension

Scheme and the Old Pension Scheme will not be applicable in the

case of the respondent-applicant.

6. Learned counsel further submitted that as per the office

memorandum dated 17.02.2020, the condition for grant of Old

Pension Scheme is that in all cases where the results for

recruitment were declared before 01.01.2004 against the

vacancies occurring on or before 31.12.2003, the candidates

declared successful in recruitment shall be eligible for coverage

under the CCS (Pension) Rules, 1972. Thus, the respondent-

applicant was rightly granted the New Pension Scheme.

7. The learned counsel further submitted that vide order dated

15.11.2003, the respondent-applicant was appointed on purely

temporary and adhoc basis against the lien vacancy, which clearly

shows that the vacancy in the petitioner-Department was not

available and the same occurred in the year 2005 and therefore,

the appointment order was issued in favour of the respondent-

applicant on 01.04.2005. He further submitted that if the vacancy

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was available with the petitioner-Department in the first instance,

there was no occasion for the petitioner-Department to issue the

order dated 15.11.2003 and subsequently the order dated

01.04.2005. The learned counsel further submitted that the

Tribunal has committed an error while allowing the Original

Application in favour of the respondent-applicant and therefore,

prays that the writ petition may be allowed and the Original

Application may be dismissed.

8. Per contra, the learned counsel for the respondent-applicant,

while supporting the judgment of the Tribunal, vehemently

submitted that the vacancy was in existence with the petitioner-

Department prior to 31.12.2003 and the respondent-applicant was

appointed though on temporary and adhoc basis but her services

were never discontinued till the issuance of the order dated

01.04.2005 (Annexure 7). The learned counsel further submitted

that for all intents and purposes, the respondent-applicant was

appointed in pursuance of the vacancy being available in the

petitioner-Department and therefore, the benefit of Old Pension

Scheme should have been extended to the respondent-applicant.

9. The learned counsel further submitted that since the

respondent-applicant was appointed against the lien vacancy and

the person who was holding the lien, never returned back to the

Department, therefore, the vacancy was there right from the first

appointment of the respondent-applicant on 15.11.2003 and thus,

the Old Pension Scheme was very much applicable on the

respondent-applicant.

10. To buttress his contentions, the learned counsel has relied

upon the judgment of the Delhi High Court in the case of Pawan

[2023:RJ-JD:35580-DB] (5 of 7) [CW-13570/2022]

Kumar and Ors. Vs. Shiv Ram Yadav and Ors., reported in

2023 SCC Online Del 112.

11. Learned counsel for the respondent-applicant submitted that

no error has been committed by the Tribunal while allowing the

Original Application and, therefore, prayed that the present writ

petition may be dismissed.

12. We have considered the submission made at the Bar and

gone through the relevant record of the case including the

impugned order passed by the Tribunal on 23.02.2022.

13. The appointment of the respondent-applicant vide order

dated 15.11.2003 clearly stipulates that "the appointment is

purely on temporary and adhoc basis up to 30.01.2004

against the lien vacancy. This appointment will stand

terminated on or before 30.01.2004 in case the person

holding lien join back to his/her cadre/post. If the person

holding lien resign from the post or lien period is

over/terminated, the work performed during the period of

appointment up to 30.01.2004 will be reviewed and

considered for continuation of appointment by the

competent authority". This clearly indicates that since there

was no clear vacancy, the respondent-applicant was appointed on

temporary basis. This fact is further fortified by issuance of the

order dated 01.04.2005 in favour of the respondent-applicant,

whereby she was appointed to the post of Junior Hindi Translator

on a clear vacancy being available with the petitioner-Department.

14. This Court is further of the view that if the appointment of

the respondent-applicant was on substantive basis on a clear

vacancy vide order dated 15.11.2003, there was no occasion for

[2023:RJ-JD:35580-DB] (6 of 7) [CW-13570/2022]

the petitioner-Department to issue a fresh order of appointment

on substantive basis on 01.04.2005 (Annexure 7). It is clear that

the person who was holding the lien in the Department on the

post of Junior Hindi Translator, was discharged from his

lien/terminated his lien in the year 2005 and the vacancy being

available in the petitioner-Department in the year 2005, the

appointment order dated 01.04.2005 (Annexure 7) in favour of

the respondent-applicant was issued. The Office Memorandum

No.57/04/2019-P&PW(B) dated 17.02.2020 issued by the

Government of India, Department of Pension and PW, very

clearly stipulates that in all cases where the results for

recruitment were declared before 01.01.2004 against the

vacancies occurring on or before 31.12.2003, the

candidates declared successful for recruitment shall be

eligible for coverage under the CCS (Pension) Rules, 1972.

15. In view of the facts delineated above, it is clear that the

petitioner-Department was not having a vacancy available before

31.12.2003 and therefore, the respondent-applicant is not eligible

for grant of Old Pension Scheme.

16. The argument of the learned counsel for the respondent that

the services of the respondent-applicant were never discontinued

after appointment on 15.11.2003, cannot be a ground to put the

respondent-applicant in purview of the Old Pension Scheme on the

ground that continuation on a post is having a different

connotation and she might be eligible for other services benefits

but for grant of Old Pension Scheme, the provisions enshrined in

the Office Memorandum dated 17.02.2020 are required to be

adhered to. Since the appointment of the respondent-applicant on

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15.11.2003 was against the lien vacancy, clearly shows that there

was no vacancy available, therefore, the conditions of the Office

Memorandum dated 17.02.2020 are not being fulfilled in the

present case and therefore, the respondent-applicant will not be

eligible to get the Old Pension Scheme. The continuation of the

service of the respondent-applicant since 15.11.2003 may grant

her other service benefits but for getting her case considered

under the Old Pension Scheme, her case has to come within the

purview of the Office Memorandum dated 17.02.2020. Since no

clear vacancy was available with the petitioner-Department on or

before 31.12.2003, she is not entitled for getting the Old Pension

Scheme.

17. The judgment relied upon by the learned counsel for the

respondent-applicant in the present set of facts has no application.

18. In view of the discussion made above, the writ petition

merits acceptance, the same is allowed. The judgment dated

23.02.2022 passed by the Central Administrative Tribunal, Jodhpur

Bench is quashed and set aside.

(VINIT KUMAR MATHUR),J (AUGUSTINE GEORGE MASIH),CJ

121-/Anil Arora/-

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