Thursday, December 1, 2011

OA NO.80 of 2002 on ????????????????

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE

ORIGINAL APPLICATION NO.80/2002

DATED THIS THE DAY OF ............., 2011

HON'BLE DR. K.B.SURESH ... MEMBER(J)

HON'BLE SMT. LEENA MEHENDALE ... MEMBER(A)

Smt. M.Ishwari, aged 36 years,
W/o Sri Sadanand,
Technical Assistant,
Regional Office for Health and Family Welfare,
Ministry of Health and Family Welfare,
2nd Floor, F Wing, Kendriya Sadan,
Koramangala, Bangalore – 560 034,
Residing at No.243, 'Sri Rama',
5th Main, Chamarajpet,
Bangalore – 560 018. ... ` `Applicant

(By Advocate M/s.Vagdevi Associates)

Vs.
1. The Senior Regional Director,
Health & Family Welfare,
2nd Floor, F Wing, Kendriya Sadan,
Koramangala,
Bangalore – 560 034.

2. The Director General of Health Services,
Directorate General of Health Services,
Nirman Bhavan,
New Delhi – 110 011.

3. The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhavan,
New Delhi – 110 011. ...Respondents

(By Advocate Shri M.V.Rao, Senior Central Government Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


This OA was filed on 18.1.2002 and was decided by C.A.T., Bangalore Bench on 8.4.2003 dismissing the application. Hence the applicant approached the High Court of Karnataka in W.P.NO.49834/2003, and the High Court has, on 19.11.2010 set aside the order passed by this Tribunal and remanded the matter back to the Tribunal for fresh consideration in the light of certain observations made in the said judgement. Accordingly, the matter came back to this Tribunal on 14.07.2011 and was heard afresh. The matter deals with application of V Central Pay Commission (CPC).

2. The brief facts of the matter are:
The applicant who possesses an educational qualification of M.Sc. In statistics, joined the Department of Health and Family Welfare after due selection as a Technical Assistant w.e.f. 16.8.1988 in the RHO (Regional Health Office), Ministry of Health and Family Welfare, at Bangalore and was governed by IV CPC scales. The Scale of pay granted at the time of her appointment on 16.8.1988 was Rs.1400-2300/- and matched with the scale given to other colleagues posted as Statistical Assistants and dealing with statistical analysis. On applying the V CPC recommendation effective from 1.1.1996, her pay scale was revised to Rs.4500-7000/-. This is seen from Annexure-A/1 notification No.GSR/569(E) dated 30.9.1997. It is her claim that she must be given replacement scale of Rs.6500-10500/- in view of the fact that the Statistical Assistants have been given replacement pay-scale of Rs.5000-8000/-, with their entry level qualification of B.Sc., while she possesses Master's Degree right from the date of entry into service and that her job is not substantially different from that of Statistical Assistants and other equally qualified employees who have been given this pay scale. She relies for her claim mainly on the recommendations of V CPC (Central Pay Commission) in paras (i) 81.17, (ii) 56.55, (iii) 62.25, (iv) 50.37 and (v) 168.3.

3.(a) The Respondents claim at Annexure-A/4 (impugned order) that the revision of scales given to her is as per the recommendations of the V CPC. The applicant has contested this as being illegal, not based on facts and being mechanically issued without considering the grievance of the applicant. Since her OA was earlier dismissed by this Tribunal and then remanded by the High Court, it is necessary to see what are the main points of contention as discussed previously by the Tribunal and the High Court.

(b) The V CPC has elaborately discussed the posts of Statistical Assistants or Statistical Investigators who have been given a certain revision as per these elaborations. The applicant would contend that her post, namely, Technical Assistant has been left out by the V CPC from their elaborate discussions. It is further contended that her post should be treated as an isolated post and the department has to give consideration given to isolated posts rather than going by general principles.

We will be examining these issues in the latter part of the order.

4. It is pertinent to note how the CPC gives recommendations. Generally, they look at the scales and give a schedule on how to revise or replace them. These have a general application and are mentioned in Schedule 'A'. For certain categories, they suggest merger of scales or upgradation prior to revision. In such special cases, upgradation is applied first and then revision, as per general chart. Applicant's cadre has not been specifically considered, while the cadre of Statistical Assistants has been.



5. In the OA, the applicant has elaborately discussed how the V CPC has dealt with Statistical Assistants of the Health & Family Welfare department.
i) As claimed at para 4.10 of OA, it is rightly observed by the V CPC in 81.17. that the posts of Statistical Assistant and Investigators are scattered here and there with different Ministries. These are isolated posts where chances of promotion are meagre. CPC recommend that all such posts with statistical functions be constituted into subordinate statistical services eligible for promotion to ISS (Indian Statistical Services) and all recruitment to these feeder cadres be centralized and placed under the ISS Cadre Controlling Authority. All Posts of Junior Statistical Investigators with Graduation as entry level qualification and in the scale of Rs.1400-2300/- be upgraded to scale of Rs.1600-2660/- and be redesignated as SI (Statistical Investigators Gr.II). For Statistical Investigator Gr.I, post-Graduation be made as minimum qualification for direct recruits to 50% of the posts. Based on the above recommendation, the applicant has prepared a chart showing how Junior Statistical Investigator and Statistical Assistant cadres with a new designation of Statistical Investigator Gr.II will move up in the pay scale. The same is reproduced below.

a) Classification of
Statistical Function
post

b) Pre V CPC
Classification

c) New suggested
Classification

GRADE II



i) Jr. Statistical Investigator
ii) Statistical Assistants

Statistical Investigator Gr.II
GRADE I



Sr. Statistical Investigator
Sr. Statistical Assistants

Statistical Investigator Gr.I


d) Minimum entry
Level Qualification
Graduation in Statistics
Post Graduation in Statistics

e) IV Pay Commis-
sion Scales
Rs.1400-2300
Rs.1640-2900


f) Upgraded Scale
in IV CPC
Rs.1600-2660
Rs.2000-3500


g) Replacement
Scale in V CPC
Rs.5000-8000
Rs.6500-10500


h) Assured Career Progression
I. ACP




II ACP


1640-2900
(Under IV CPC)
i.e. Rs.5500-9000
(Under V CPC)

Rs.2000-3500
(Under IV CPC)
i.e., Rs.6500-10500
(Under V CPC)



Rs.2375-3750
(Under IV CPC)
i.e., Rs.7450-11500
(Under V CPC)

Entry Scale of ISS
Group-A
(Under V CPC)


Hence the applicant who is now equated to a scale of Rs.4500-7000/- is entitled not only for the replacement scale Rs.5000-8000/- but is actually eligible for scale of Rs.6500-10500/- as given to Statistical Investigator Gr.I. whose entry qualification is post-Graduation.

ii) At para 56.55, the V CPC has recommended that Statistical Assistants working with Department of Fisheries, with graduation at entry level and having pay scale of Rs.1200-2040/- should also be upgraded to Rs.1600-2660/- and then revised to Rs.5000-8000/- so as to match promotion to next higher post of Statistician in the stream of that department. Thus, good care has been taken even for those having graduate qualification, but she has been kept below them despite post-graduation. The anamoly is clear from the following comparison.

Sl.
No.
Post
Entry level
qualification
IV CPC Scale of pay
Upgraded scale in IV CPC
Replace- ment scale in V CPC.
1
Technical Assistant H&FW
Post graduation
1400-2300/-

4500-7000/-
2
Statistical Asstt.
H&FW
Graduate
1400-2300/-
1600-2660/-
5000-8000/-
3
Statistical Assistant of
Fisheries Deptt.
Graduate
1200-2040/-
1600-2660/-
5000-8000/-

iii) Further in para-62.25 of the report, it is recommended that the post of Assistant Direction General (Statistics) be encadered to ISS Group 'A' posts which would imply that Statistical Investigator Gr.I would no longer be eligible for promotion as ADG. To take care of ensuing stagnation, the ACP scales for Statistical Investigator Gr.I have been suggested in the chart. This means that the Statistical function post has to be examined not only on the basis of entry level qualification but also on the basis of presence or absence of promotional avenue and be given upgradation accordingly. The same logic should apply for Technical Assistants with post-Graduation but with no promotional avenue. It has been denied to her.

iv) At para 50.37, the V CPC recommends that there should be identical pay scales for posts with identical recruitment qualification. Hence the designation of the post is not the criteria for revision of pay scale to be fixed by the individual Ministries. At para-168.3, the V CPC has also recommended that in the event of any Central Government post being left out without allotment of revised pay scales in the report, it should be given the commensurate revised scale of pay as applicable for the post with similar entry qualification, duties and responsibilities, duly retaining the horizontal and vertical relativities in the organization. The incumbents to those posts will also be eligible for the provisions of assured career progressions. Under this recommendation, the DGHS has the authority as well as responsibility to consider her case. It is pertinent to note that the CPCs would generally give a firm recommendation for majority of the cadres. But, will also leave some situations to be handled by the concerned departments in the light of various principles stated by the CPC In such cases, the concerned Heads of Departments have to apply their mind and take a decision relying on the guidelines of identical payscales for identical recruitment qualifications. The DGHS (Director General of Health Services) had, using his authority, initially revised the Scale of Statistical Assistant from Rs.1400-2300/- to Rs.4500-7000/- in general category, but, has subsequently upgraded It to Rs.5000-8000/- as seen from the DGHS order No.A26022/4/97-ADMN.II dated 5.8.1998 at Annexure-A/9. In the instant case too, the Pay Commission has not specifically examined the pay scale of Technical Assistant in the MH&FW, but the DGHS has not applied the mind to the merits of the Technical Assistants. He refused to consider that the applicant is entitled to pay scale of Rs.6500-10500/- in view of the entry level qualification being Post-graduation. He should have interpreted all the recommendations in so far as the post graduation qualification at entry level is concerned and should have allowed pay scale of Rs.6500-10500.

v) The applicant has also pointed out several other recommendations from para 40.17 and para 22.41 etc. The most important point being as quoted in (ii) above. Further, in view of the chart she also prayed for first ACP. During the pendency of the OA, ACP is granted vide order dated 25.3.2003 in the scale of Rs.5000-8000/- w.e.f. 17.8.2000. However, the prayer for being placed in the pre-V CPC pay scale of Rs.1640-2900/- still remains. The posts of Technical Assistant in the Health Department are very few, there being only 17 posts throughout India and out of them hardly 8 persons are working. In view of this small number their grievances have not been properly considered by the department.

6. We find from the records that the applicant had first approached this Tribunal in OA No.1653/2000. It was ordered on 9.7.2001 (Annexure A/3) that the representation of the applicant then pending with the respondents for the same relief as prayed in present OA should be disposed of by the respondents expeditiously within 60 days. Thereafter, the respondents had considered the representation and issued order as at Annexure-A/4 which is the communication from the office of the DGHS to the Regional Director, Bangalore, rejecting her application. The reason quoted therein is as below:
“the upgraded replacement scale to Group B&C statistical function posts located in Ministries/Departments offices of Central Government had been granted in the following manner:

Sl.No. IV CPC Upgraded Scale Replacement Scale by IV CPC in V CPC


1. 1400-2300 1600-2660 5000-8000
2. 1600-2660 1640-2900 5500-9000
3. 1640-2900 2000-3500 6500-10500

As per Recruitment Rules of the post of Technical Assistant in Regional offices of M.H & F.W., the post of Technical Asstt., is not Statistical Functional Post and as such she is not holding a Statistical Function Post and as such she is not eligible for grant of upgraded replacement scales of pay of Rs.5000-8000/- or Rs.5500-9000/-. However, she is placed in the revised pay scale of Rs.4500-7000/- on the recommendations of the V Central Pay Commission.”


7. Thus the sole reason for rejecting the application is the distinction between Statistical Assistant and Technical Assistant. It is claimed that her post namely that of Technical Assistant in the Regional office is not a Statistical Function Post and hence she is not eligible to the scale of Rs.5000-8000/-. This is challenged in the present OA. Her argument is that Technical Assistants too are performing Statistical Functions, and there is no need to make any distinction.

8. The respondents have filed a short reply stating the main ground that the applicant was appointed as Technical Assistant and not as a Statistical Assistant. They have compared the duties of Technical Assistant in the Regional Office to that of Statistical Assistant in the same Regional Office and concluded that the two tasks are different. They have relied on the clarification of Ministry of Statistics and Programme Implementation which has clarified that wherever the post held by the applicant is not Statistical Function Post, such applicants shall not be eligible for grant of upgraded replacement scale of Rs.5000-8000/- as recommended in para 81.17 of the V CPC.

9. We have examined this claim in detail and the crux of the matter is whether the Technical Assistants can be denied benefits given to Statistical Assistants or Statistical Investigators, or whether their work can be categorised as statistical function.

10. Annexure-A/11 is a copy of the Recruitment Rules stating that (a) the essential qualification for Statistical Assistant is graduation in maths or economics or statistics, (b) 50% posts will be filled by direct recruitment and 50% through promotion. On the other hand, the post of Technical Assistant is filled 100% by Direct Recruitment with a minimum qualification of Post graduation. Learned counsel for applicant argued that if the duties of the Statistical Assistant and Technical Assistant are different then definitely the Technical Assistant must be considered superior. Hence refusing to treat the post of Technical Assistant as not performing Statistical functions is incorrect. Our attention was also drawn to another example. In case of her Senior Regional Director it is seen that even though he is not dealing with patients, nor dispensing medicines his pay scale is fixed as per entry level qualification in medicine and not by the nature of duties that he is performing vis-a-vis those equivalent colleagues dealing with medicine and patients. Hence if such equation applies to Senior Regional Director, the same should be allowed in case of the applicant too.
It is held in Mohan Lal Vs. Union of India in CAT New Delhi
“where revision of pay scale of various categories are made as per the recommendation of V CPC, a single employee's pay scale alone cannot be kept at original pay scale without any revision”.


11. The details examined by the Hon'ble High Court ae as under:

"2. ....... There are no avenues for promotion. In pursuance to the 4th Central Pay Commission ('CPC' for short) the basic pay attached to the said post is Rs.1400-2300/-. In the 5th CPC, the pay was revised to Rs.4500-7000/-. In view of the aforesaid, she made a representation to the authorities to refix her basic pay. .... the Tribunal was of the view that the question whether the post held by the petitioner is a statistical functional post or not cannot be determined by it, as it lacks necessary expertise. The Supreme Court has held that issues like classification of posts into different categories with different pay scales are best left to be determined by the management and the experts, such as, the pay commission, which has requisite expertise and the Courts should not normally interfere in such matters. The Supreme Court has also held that the mere fact that duties are similar does not ipso facto entitle a person to seek pay parity and it is seen that the 5th CPC has considered the pay scale to be granted to the post of Technical Assistant held by the applicant, but had only recommended the replacing scale of Rs.4500-7000/-. It further held that when the expert body like 5th CPC has not recommended the higher scale, it do not see how it can adjudicate the matter, especially when the respondents have strongly argued that the post held by the applicant is not a statistical functional post. Accordingly, it rejected the application of the petitioner. Aggrieved by the same the petitioner is before this Court.

5. ..... it is not in disputethat the applicant was recruited to the post of Technical Assistant in the Ministry of Health and Family Welfare. It is an isolated post. No promotional avenue is provided under the Rules. ... It is not disputed that the 5th CPC did not consider this post. They have not made any specific recommendation in so far as this post is concerned. .... The Tribunal has proceeded on the assumption that when the expert body like 5th CPC has not recommended the higher scale, the Tribunal has no jurisdiction to adjudicate in the matter.

(In High Court's opinion), When the 5th CPC has not considered the post of the petitioner and has not recommended any pay scale to that post specifically, it was obligatory on the part of the Tribunal to go into the question with reference to the pay scale recommended by the 5th CPC for similar qualification and the revision of pay scale in respect of other posts keeping in mind the pay scale in the 4th CPC.

The material on record discloses that for the very same post a person who is only a Graduate is now fixed a pay scale higher than that to the post Graduate. The argument was, the Graduates' functions are altogether different, whereas the functions performed by this post Graduate is not so. The petitioner is performing the functions assigned to the said post. She is possessing the I Class post-Graduate Degree (in Statistics). She has not refused to perform any other function assigned to her by the respondents. If there is no work in the post where the petitioner is working, it is for the respondents to make use of her talent and service where there is work. .... the validity of the same has not been gone into by the Tribunal on the sole ground that the expert body has considered such a situation and has made a recommendation and therefore, their jurisdiction is ousted..... When admittedly the expert body has neigher considered the post in question nor considered whether it is a statistical functional post, the Tribunal whose members are specialised in this particular field of service law could apply their mind taking into considereation the recommendation made by the 5th CPC in respect of other posts could evaluate a proper pay scale in commensurate with the educational qualification of the petitioner.
O R D E R
3. The entire matter is remitted back to the Tribunal for fresh consideration in the light of the discusions made above."


12. We have examined all the above issues in detail including the various recommendations of the V CPC from their original text. The whole emphasis of the department revolves around the two designations, viz., Technical Assistant and Statistical Assistant.

We have compared the job chart of the two categories which read as below.
Duties and responsibilities of Technical Assistant
Duties and responsibilities of Statistical Assistant
Compilation of technical reports and maintenance of Statistical figures under Family Welfare and NMEP and other National Programme – Quarterly and periodic review of the programme – Maintenance of files and correspondence.
Collection of information for research studies by undertaking frequent field trips making house to house and institutional survey. Scrutiny and consequent check of the Research data. Compilation of Health information data. Compilation and tabulation and analysis of data. Graphical representation of data. Data entry for mechanical tabulation – computer operation. Assisting for mechanical tabulation.
13. We feel that there is no material distinction between the jobs performed by the two cadres as highlighted above, being the real statistical function Other details mentioned for Statistical Assistants are merely by better elaboration of statistical function. It looks that the Department could gain by not keeping the two cadres of Technical Assistant (Statistics) and Statistical Assistant as separate but by merging the two, as that would bring about a rational distribution of the work-load. We, therefore, partly agree with the learned counsel for the applicant. The case of the applicant who is the Technical Assistant must be treated on the similar lines as those of Statistical Assistants.

14. We also consider it fit to find out the recommendations of the V CPC to the various other cadres also designated as Technical Assistants.
(a) It is seen that the Ministry of Health & Family Welfare has large number of posts carrying the nomenclature of Technical Assistant, who perform tasks such as as Food Inspection, Iodine deficiency, medical emergency, etc. Some of them, such as the present applicant, perform technical tasks related with statistics. Therefore, the nomenclature of her post can be examined vis-a-vis those performing statistical functions as well as those performing other technical jobs which are non-statistical in nature. We note that at para 69.14, while dealing with the "Prevention of Food Adulteration Division" of the same Ministry of Ministry of Health & Family Welfare where the applicant is working, the V CPC has observed as under:
"69.14 Posts in the Prevention of Food Adulteration (PFA) Division comprise a Senior Investigator/Team Leader in the scale of pay of Rs.2000-3500/-, 3 posts of Research Assistant 9PFA) (Rs.1640-2900/-), 5 Technical Assistants (FPF) (Rs.1400-2300/-) and 6 Food Inspectors also in the scale of pay of Rs.1400-2300/-. Incumbents of these posts have demanded upgradation to the new higher scale citing stagnation as the sole-basis. We are not convinced that upgration will solve the problem of stagnation. Neither is upgradation justified in view of the existing qualifications and methods of recruitment. However, we observe that the minimum qualification for direct recruitment to the posts of Technical Assistants and Food Inspectors is Graduation. These 11 posts should, therefore, be placed in the scale of Rs.1600-2660/-. No other change is called for.

(b) Further, at para 68.7 while dealing with Restructuring the Technical Cadres – Rice Mills Division, in the Ministry of Food Processing Industries, the V CPC has observed as under:
"68.7 The Rice-Mills Division should be rechristened as the Industrial Advice Division. The lone post of Technical Assistant (Rice Mills) (Rs.1400-2300/-) carries B.Sc. (Chemistry) qualification and should be upgraded to Rs.1600-2660/- and called Technical Assistant (Industrial Advice). The two Assured Career Progressions (ACPs) to the scale of pay of Rs.1640-2900/- and Rs.2000-3500/-, will be available to this post at the end of 10 and 20 years of service."

(c) As already pointed out at para 5(ii) (supra), the Statistical Assistants having IV CPC scale of Rs.1200-2040/- also have been upgraded to the scale of Rs.1600-2660/-.
Sl.
No.
Post
Entry level
qualification
IV CPC Scale of pay
Upgraded scale in IV CPC
Replace- ment scale in V CPC.
1
Technical Assistant H&FW
Post graduation
1400-2300/-

4500-7000/-
2
Statistical Asstt.
H&FW
Graduate
1400-2300/-
1600-2660/-
5000-8000/-
3
Statistical Assistant of
Fisheries Deptt.
Graduate
1200-2040/-
1600-2660/-
5000-8000/-

15. We feel that the present distinction that the department has maintained between the cadres of Technical Assistant and Statistical Assistant is an artificial distinction that may have had its justification many years ago, but not now when the dynamics of the department requires much better quality of statistical analysis and the capabilities of the Technical Assistant for statistics can be better utilised, assuming that this is not being done as at present. In any case, that cannot be allowed as a ground to continue the cadre of Technical Assistant at a discriminated level even when their entry qualification is Post graduation.

16. In view of all these, we agree with the applicant on this aspect and therefore, we consider it just and proper to direct that the applicant be given the upgraded scale in the IV CPC of Rs.1600-2660/- and a replacement scale in the V CPC of Rs.5000-8000/-. However, we do not agree for giving her the replacement scale of Rs.6500-10500/- in the V CPC as the Recruitment Rules for Technical Assistant provides for entry grade qualification of Post graduate OR a graduate with three years of experience.

17. Thus, the OA is partly allowed. The Respondents are directed to give the applicant the V CPC scale of Rs.5000-8000/- with effect from 1.1.1996. Her First ACP scale as well as VI CPC scale would be fixed accordingly with effect from 17.08.2000 and 1.1.2006 respectively. No order as to cost.

(LEENA MEHENDALE) (Dr. K.B. SURESH)
MEMBER (A) MEMBER (J)

psp.
The two brinef points to be decided are as under:


1. Whether the Technical Assistant and the Statistical Assistant perform the same duty and can it be said that the case of Technical Assistants remained inadequately represented before the V CPC because of the smaller number of incumbents unde that cadre as claimed by the applicant. A related question is whether the simile drawn by the applicant from the case of ............................ at para .......... supra can be stretched to apply to the cadre of Technical Assistants.

2. The second question takes us to the anamoly of lower pay scale to the applicant even with Post graduate qualification in Statistics vis-a-vis the consideration shown not only to the Statistical Assistant whose entry level qualification is only graduation and who were in the pay scale of Rs.1600-2660/- but also to the Jr. Statistical Investigators, the scale of Rs.1400-2300/- whose entry level is also graduation and whose scale was upgraded to Rs.1600-2660/, thereby making them eligible for the replacement scale of Rs.5000-8000/-. This comparison is brought out in the following chart.




a) She possess the qualification of Post-graduation in statistics and this is the required entry level qualification for recruitment to her first post of Technical Assistant in the Department of Family Welfare.

b) Although her post is not a Technical post in the same sense as that of a medical scientist, it is still a technical post in the nature of technical expertise required for data collection and data analysis. But, the crux is that Department is not considering it equivalent to the post of Statistical The job description of post involves collecting statistical data for the Department of Health and Family Welfare and its analysis through techniques of trend analysis, time regression, geographical variance and mean deviations. Without the analysis of the statistical data no proper assessment of the bottle-necks in the scheme implementation can be detected and no modifications can be introduced and no effective policy can be framed. Hence, her job of handling statistical material in a huge organisation such as Health and Family Welfare Department deserves to be treated on par with the jobs handled by other technical employees possessing the qualification of graduation in medical sciences and working on medicine related technical aspects under the Department.

OA No.275/2010 pronounced on ////////////////////////

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.275/2010

TODAY, THIS THE ......... DAY OF ..............., 2011

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR ... MEMBER (J)


A. Kalyan Rao,
S/o Rama Rao,
Aged 48 years,
R/a House No.18-2-384,
Adsare Nilaya,
Ramnagar Colony,
Chidri Road, Bidar – 585 403. ... Applicant

(By Advocate Shri A.R. Holla)

Vs.
1. Union of India,
By Secretary, Ministry of Human
Resource Development,
Department of Education,
Shastri Bhavan, New Delhi – 110 001.

2. The Additional Secretary (HE),
Ministry of Human Resource Development and
Vice Chairman, Kendriya Vidyalaya Sangathan,
18, Institutional Area, S.J.S. Marg,
New Delhi – 110 016.

3. The Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area, S.J.S. Marg,
New Delhi – 110 016.

4.The Assistant Commissioner,
Kendriya Vidyalaya sangathan,
Regional Office, K. Kamaraj Road,
Bangalore – 560 042.

5. The Principal,
Kendriya Vidyalaya,
Air Force Station, Bidar – 585 401. ... Respondents
(By Advocate Shri Vishnu Bhat)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


The landmark judgment of the Hon'ble Supreme Court in the case of Vishaka & Others Vs. State of Rajasthan & Others reported in AIR 1997 SC 3011 better known as Vishaka Judgment has dealt with the case of sexual harassment of women at workplace which by extension also incude sexual harassment of girl students and, in fact, all students in school by adults. Appreciating the trauma of the victims in these situations, which the victim has to undergo not once, but, many times and for which most of the victims are normally hesitant to speak, the Apex Court has for the first time given elaborate instructions. Also appreciating that most of the victims of sexual harassment have a psychological need of getting over the trauma at an early stage, which would also mean that their evidence may not always be extremely coherent and sequential, the Supreme Court has laid down instructions for the offices on how to deal with such cases on the following lines.
(i) It should be the endeavour of all offices to ensure that cases of sexual harassment are not allowed to happen in the first place.

(ii) The Government of India should frame rules/guidelines. But, pending this, the offices themselves should have their own guidelines for dealing with the complaints of sexual harassment. These would be based on guidelines suggested by the Apex Court itself. These complaints must be enquired into by a committee.

(iii) The regular elaborate procedure of the departmental enquiry and especially the cross-examination of the witnesses may not always be possible in view of the trauma of the victims. Hence, the offices should form a committee would conduct summary enquiry to decide upon the complaint.

2. It was thus, for the first time, that a clear distinction has been made between an ordinary misconduct of an employee and the mis-conduct relating to sexual harassment. The gravity of the situation increases many fold when it is a case of sexual harassment of the students by the teacher. Although, high care must be taken to ensure that no false complaint may result in harming the career or tarnishing the image of an innocent person, it is also utmost important that the victim of sexual harassment must not be forced to keep on suffering continuously and quietly or be exposed to embarassing cross-examination. The present case deals with such an issue.

3. This OA has been filed on 30.06.2010 under Section 19 of the Administrative Tribunals Act, 1985, seeking to quash the order of the Disciplinary Authority dated 8.10.2009 as at Annexure-A/8 as also that of the Appellate Authority dated 10.06.2010 as at Annexure-A/12, both resulting in termination of the applicant for misconduct of sexual behaviour with two girl students.

4. The two orders are challenged on the following grounds as narrated in para 5 of the OA. Briefly, these are:-
(a) that the punishment has been given on the basis of summary enquiry;
(b) that the charge is vague and lacks material particulars;
(c) that the Committee conducting the summary enquiry did not give him copies of the statements of witnesses, nor an opportunity to cross-examine the witnesses;
(d) that the Appellate Authority has not considered the appeal in an objective manner. He has disregarded the grounds urged by the applicant that he was not provided with the gist of charges, copies of complaints, statements of students and opportunity to cross-examine. The Appellate Authority has rejected all these grounds and passed order confirming the order of Disciplinary Authority.
(e) The committee conducting the summary enquiry considered extraneous matters not related to the allegation of sexual harassment of students.
(f) In the 20 years of service of the applicant, there was no complaint of sexual/harassment against him. But, the committee has not considered this past record.

5. The applicant was working as a Teacher in Kendriya Vidyalaya, Air Force Station, Bidar from 24.1.1990 and after promotion as a Trained Graduate Teacher, he was assigned to teach High School students. The School where he taught and the classes was a co-education school. It is seen from the record available in the case that the mothers of two girl students gave a complaint to the Kendriya Vidyalaya Sanghathan authorities on 25.9.2008 complaining that the applicant showed sexual mis-behaviour against these two girl students of Class VII. Therefore, a preliminary enquiry was conducted by the Principal at the Vidyalaya level in which the aplicant was found to be prima-facie guilty of moral turpitude involving sexual behaviour towrds girl students. We find from Annexure-R/1 that the Principal was diligent enough and even the preliminary enquiry was through a committee of 5 members. On receiving this report through the Assistant Commissioner, Regional Office, Bangalore, the Commissioner, who is the Disciplinary Authority has passed the order dated 3.2.2009 (Annexure-R/2), invoking his authority under Article 81(B) of the Education Code for KVS, to conduct a summary enquiry against the applicant through another committee. The Disciplinary Authority was satisfied that the applicant is prima-facie guilty of moral turpitude as he has been found misbehaving with the girl students with a view to derive sexual satisfaction. He has also deliberated upon whether to hold regular enquiry under CCS (CCA) Rules, 1965, and concluded that it is not expedient to hold such enquiry as it would case serious embarassment to the girl students and the guardians. In view of the tender age of the girl students and their safety and security which must be protected by preventing their exposure to the tardy process of cross-examination, the Disciplinary Authority has dispensed with the holding of regular enquiry in accordance with CCS (CCA) Rules, 1965. Under Article 8(B) of the Education Code for Kendriya Vidyalayas, he is within his authority that whenever the conditions satisfy him for holding only a summary enquiry, he can do so. Using this authority and applying his discretion to protect the girl students of the tender age, he has, after due application of mind decided to go by the procedure of summary enquiry. The second committee consisted of new set of persons namely, (1) Ms. L. Chari, Education Officer, (2) Smt. Anu Thomas, Principal, KVS from CRPF, Yelahanka (i.e., another school), (3) Shri Paramashivam, Principal, KVS, MG Railway Colony, (The Supreme Court guidelines specifically mentions that atleast one member of the Committee must be a male member), (4) Ms. Sheela Ramanathan, Director, Human Rights, Law Network, Bangalore (Supreme Court guidelines specifically mentions that atleast one member of the Committee would be from some NGO working in the field of women rights or human rights).

6. The Committee's report is seen at Annexure-A/13 and is a fairly detailed report. It mentions that the enquiry was conducted on one single day, i.e., on 24.4.2009 from 9.00 am To 5.00 pm, in which enquiry, the charged officer (the applicant) was also heard and he had denied everything. However, on the basis of all the statements deposed before the committee by the girl students and parents, the committee concluded its report and submitted it on 8.6.2009 to the Assistant Commissioner at Bangalore, with the conclusion that the applicant has been found guilty of moral turpitude involving sexual behaviour with the girl students. The Assistant Commissioner forwarded this report to the Disciplinary Authority on 15.6.2009 along with all the records.

7. Thus, we find that the Disciplinary Authority has followed proper procedure. After the findings of the preliminary enquiry, he has gone for summary enquiry as permitted by Rules by appointing another committee. On receiving the report of the summary enquiry committee on 15.6.2009, he has issued a show cause notice dated 3.8.2009 (Annexure-A/6) to the applicant along with the charges, statement recorded in the summary enquiry and the summary enquiry report itselt, to which the applicant replied on 20.8.2009 (Annexure-A/7). Then after taking that into consideration, the Disciplinary Authority has passed the impugned order dated 810.2009 at Annexure-A/8. We find that this is a fairly elaborate and well reasoned order. Hence, we cannot find fault with it. Similarly, the Appellate Authority has also passed a detailed and well reasoned order on 10.06.2010, after giving personal hearing to the appellant on 6.5.2010. He has confirmed the order of the Disciplinary Authority. We cannot find any fault with this order also. The judicial review by this Tribunal is to ensure that due process of law is followed by the Disciplinary and Appellate Authorities and the jurisdiction of this Tribunal is limited only to that extent. We do not find anything to suggest that the due process of law was not followed.

8. Further, the learned counsel for applicant would rely upon the judgment of this Bench of the Tribunal in OA No.756/2001 which also dealt with the termination of the services of an employee found guilty in preliminary enquiry of immoral behaviour towards the girl students. That termination order, passed on the basis of preliminary enquiry was held by the Tribunal as invalid and the same view was also upheld by the High Court in Writ Petition No.23535/2002, dated 01.07.2002. Citing this, the learned counsel for the applicant argued for quashing the termination orders in the present OA.

9. To this citation, the learned counsel for respondents submits that much water has flown after the Tribunal's judgment in OA No.756/2001. What happened in that case was that simply based on the findings of the preliminary inquiry, the Disciplinary Authority had passed the termination order. The Tribunal and the High Court have specifically stated that the authority given under Article 81(b) of the Education Code of Kendriya Vidyalaya Sanghathan, allowing the Disciplinary Authority to hold a summary inquiry is not disputed. However, preliminary inquiry is not a summary inquiry. Use of the word 'summary iequiry as he deems proper and practicable' does not entitle the authority empowered to dismiss or remove an employee, to dispense with the need to give an opportunity to deny the charge or have his say in regard to evidence. The High Court further stated that even though the enquiry held by the Assistant Commissioner showed enough material which clearly and prima facie established the act of moral turpitude involving sexual or immoral sexual behaviour with students, still, it did not amount to a summary enquiry, but only amounted to preliminary investigation. Unless the charge is made known to the employee and the statements recorded or an extract thereof is made available to the employee and he is given the opportunity to deny the charge or show cause, the action still remains a preliminary investigation and not a summary enquiry. Therefore, the summary enquiry contemplated under Rule 81(b) was not completed. In para 21 of the judgment, the High Court has stated:

"21. ... All that we have to clarify is that reservation made to the Sanghathan to take action will not require the Sanghathan to hold a regular enquiry permitting cross-examination of the complainant /s or witnesses of the management. It will be sufficient if opportunity as contemplated in AVINASH NAGRA is given, if it wants to take further action, that is issue a show cause notice containing the charge and the facts in support of the charge together with the statements recorded in the preliminary enquiry and the finding of the preliminary enquiry and give an opportunity to the respondents to submit his explanation.....".

10. The learned counsel for Respondents submits that after fully understanding the implication of the said High Court judgment, the KVS has introduced a proper procedure on the directions of Vishaka Judgment. Hence, in the present case, the decision of the Disciplinary Authority was not taken merely on the basis of preliminary enquiry. Instead the KVS authorities, after receiving the report of the preliminary enquiry, duly constituted yet another committee and gave an opportunity to the applicant of being heard once again by way of Annexure-A/6. Even at the preliminary enquiry stage, a fact finding enquiry was conducted through a committee and the applicant was asked to furnish his comments on the complaints of the parents. The report of the fact finding committee was submitted to the Chairman, VMC, KV AFS Bidar as envisaged in Article 81(B) of Education Code vide letter dated 18-11-2008. The Commissioner, KVS being the competent authority ordered for a summary inquiry as envisaged in Article 81(B) of Education Code and only after the report of the summary enquiry, the Disciplinary Authority has imposed the punishment which he considered fit and proper. This was the very reason why the earlier OA in a similar case of sexual behaviour, viz., OA No. 756/2001was allowed. This aspect has been taken care of in the present matter.

11. As far as the gravity of the charges, the appreciation of evidence by the enquiry committee and the decision of the Disciplinary or Appellate Authority is concerned, they all have taken utmost care to give an opportunity to the applicant and have also considered such other aspects as would indicate the preponderance of sexual misbehaviour with the girl students. The contention of the applicant that there has been no complaint of any sexual harassment indulged by him in his past 20 years is not relevant, as it is widely understood that most of the victims of such a misbehaviour would not speak up about it and only occassionally someone would come up with the courage to complain.

12. We have gone through all the documents before us and considered the arguments of both the learned counsel. As far as the procedure is concerned, we cannot find any fault with the whole sequence of procedure, namely, the preliminary enquiry, appointment of enquiry committee, the findings and proper analysis by the members of the enquiry committee, show cause notice to the applicant by Disciplinary Authority, the well reasoned order passed by the Disciplinary Authority at Annexure-A/8 and the well reasoned order passed by the Appellate Authority at Annexure-A/12 too. As far as the quantum of punishment is concerned, it has been held by the Apex Court from time to time and more specifically in the case of Apparel Export Promotion Council Vs. A.K. Chopra (AIR 1999 SC 625) (which also dealt with sexual harassment) that in the judicial review, the Courts/Tribunals should not interfere with the administrative authority's decision about the quantum of punishment. Even on merits, we find no reason to interfere with the order of the Disciplinary Authority and the Appellate Authority.

13. Thus, the OA fails and is dismissed. No order as to costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER (J) MEMBER (A)


psp.

OA 328/2009 pronounced on 25-11-2011

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.328/2009

TODAY, THIS THE 25th DAY OF NOVEMBER, 2011

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR ... MEMBER (J)


P.S. Venkateswaran,
S/o A.R.S. Mani, Aged 74 years,
Retd. Controller of Administration of
CECRI, Karaikudi,
Now R/at Johore House,
Flat No.004, 18th Cross,
Malleswaram, Bangalore – 560 055. ... Applicant

(By Advocate Shri H.R.S.Rao)

Vs.
1. Union of India, rep. By
the Secretary to Govt. o India,
Ministry of Personnel, Public Grievances
and Pensions (Dept.of Pension and
Pensioner's Welfare),
Lok Nayak Bhavan, Floor No.3,
New Delhi – 110 003.

2. Director General,
(Scientific & Industrial Relations),
Council of Scientific & Industrial Research,
Anusandhan Bhavan, No.2, Rafi Marg,
New Delhi – 110 001.

3. Finance Advisor to CSIR,
Council of Scientific & Industrial Research,
No.2, Rafi Marg, New Delhi – 110 001.

4. Finance & Accounts Officer,
Central Electro-Chemical Research Institute,
Karaikudi, Tamil Nadu.

5. Controller of Finance & Accounts,
National Aerospace Laboratories,
Airport Road, Bangalore – 560 047. ... Respondents

(By Advocate Shri M.V. RAO, Sr. CGSC)
O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


The crux of the case is that the Central Government employees were allowed at the time of retirement to commute 1/3rd portion of their pension, i.e., to get a lumpsum money in lieu of 1/3rd pension, and would continue to get only 2/3rd pension. In Common Causes Vs. Union of India – 1987 1 SCR 491, it was held that such a capitalisation can be considered as fully eroded in 15 years and hence this 1/3rd pension will be restored. In case of PSU employees, the Govenment had, in addition to the commutation of 1/3rd pension, also alowed commutation of remaining 2/3rd at the time of retirement. In Welfare Association of Absorbed Central Government Employees in Public Enterprises and Ors. Vs. Union of India & Anr., the Supreme Court held the two portions of commuted pension on different footings and ordered that the first part of 1/3rd commutation is at par with the 1/3rd commutation allowed to normal Central Government servants, therefore, to be restored after 15 years. The question therefore, arises as to how the pay revision and other incumbent benefits affect this 1/3rd restoration of pension to PSU employees.
This OA is filed on 04.07.2009 under Section 19 of the Administrative Tribunals Act, 1985 agitating a short point that the Respondent department has failed to properly calculate the commutted Pension, the Dearness or merged Pension (DP) and the Dearness Relief (DR) after the V Central Pay Commission (CPC) resulting in financial loss to the applicant who is now above 80 years of age. The loss is further continued after VI CPC.

2. Briefly stated, the applicant served for 36 years in CECRI (Central Electro-Chemical Research Institute), Karaikudi, and technically resigned on 31.07.1998 with permission dated 29.07.1988 (Annexure-A/1) and joined the Institute of Sciences, Bangalore. Thus, having completed more than 33 years of qualifying service at CECRI, he is entitled for full pensionary benefits. For the sake of mutual convenience, the applicant's pension is being disbursed not by CECRI, Karaikudi, but by NAL, Bangalore, both being units of CSIR.

3. He commuted 100% Pension of Rs.2082/- as per the extant rules. This implies that he would get a lumpsum commuted value of Pension of Rs.2082 X 12 X 15 at the time of technical resignation. Further, in view of Supreme Court judgment dated 15.12.1995 in Welfare Association of Absorbed Central Government Employees in Public Enterprises and Ors. Vs. Union of India & Anr. - AIR 1996 SC 1201, 1/3rd of the commuted value of pension will be restored to him 15 years later as monthly pension. Govt. of India OM No.4/59-97-P&PW(D), dated 14.07.1998 gives effect to the above judgment and the modality of calculation of 1/3rd pension. Thus, from August 2003, he would get a monthly pension of 1/3rd value. It is not disputed that no terms and conditions were stipulated by CECRI for his relief to join the Institute of Sciences, Bangalore, hence his claim to 1/3rd pension is also undisputed. The dispute comes on how to implement the V CPC revision.

4. On the implementation of V CPC (Central Pay Commission) pay scales, the earlier pay scale of the applicnt of Rs.3700-5000/- was revised to Rs.12,000-16500/- from 1.1.1996. As per the CPC guidelines, the applicant having been granted retirement pension for full service rendered in the pre-revised scale, should not get "less than the minimum guaranteed basic pension of ½ the revised scale of Rs.12,000-16500/-." which comes to Rs.6,000/- per month. Further, in terms of OM No.4/29/99-P&PW(D), dated 12.07.2000, (Annexure-A/2), irrespective of his quantum of pension, the DR has to be paid on full pension. The OM reads as:-
"2. The modalities of implementing Supreme Court Judgement dated 26.4.2000 has been under active consideration of the Government. The President is now pleased to decide that Govt. servants who had drawn lumpsum payment on absorption in a PSU/Autonomous Body and have become entitlted to the restoration of 1/3rd commuted portion of pension in terms of the Supreme Court Judgement dated 15.12.1995 shall, apart from the payment of revised restored amount of 1/3rd commuted portion of pension, be also entitled to the payment of dearness relief on full pension from the date of restoration, instead of dearness relief on the revised restored amount of 1/3rd commuted portion of pension".

5. Thus, his entitlement was taken as Rs.2000/- as Restored Pension (being 1/3rd of full basic pension plus DR on Rs.6000/- with effect from 14.09.2003. When the DR crosses 50%, it is to be merged as DP. Accordingly, his entitlement with effect from 1.4.2004 was revised on 15.4.2004 as at Annexure-A/3 and he was granted Pension as below.
Effective from 01.04.2004
Pension : 6000
Dearness Pension for
for purpose of DR : 3000
---------------
Total Pension : 9000
---------------
DA @ 11% on total pension 990(11% being the rate on
1.4.2004)

Minus Commutation OF 2/3rd
pension : - 4000

Net Pension : 5990


As mentioned in para 4(3) of the OA, this Pension fixation from 14.09.2003 to 31.3.2004 and subsequently from 1.4.2004 onwards got fixed in the manner as mentioned above because of the fact that the issue of 1/3rd and 2/3rd value of pension was under litigation and was unclear at that point of time. This clarity was brought in by the Andhra Pradesh High Court judgment dated 24.12.2003 in Writ Petition No.8532 of 2003, followed by the Supreme Court judgment dated 29.11.06 in Civil Appeal No.5269 of 2006 arising out of SLP Nos.21647-648 of 2005 and the Supreme Court judgment dated 24.07.07 in Review Petition No.643 of 07, which all are the basis of Annexure-A/4 which is the OM No.4/79/2006-P&PW(D), dated 06.09.2007,

6. As a result of this OM, the respondents have fixed the pension once again on 14.12.2007 as at Annexure-A/5, which is the impugned order. The applicant relies on the judgment of the Hon'ble Supreme Court quoted above and especially in Review Petition No.643 of 2007. It is his claim that the same has not been properly followed while issuing Annexure-A/5.

7. Before proceeding to the claims of both sides, we find it necessary to refer to some salient point brought out by the Supreme Court in the case of Welfare Association of Absorbed Central Government Employees in Public Enterprises and Ors. Vs. Union of India & Anr. - AIR 1996 SC 1201 and we quote:
"2. .... Government of India some years ago decided to start public undertakings/enterprises in the core sector of industries. To start with, the Government of India, sent some of their officers to the public undertakings, on deputation. ..... The Government offered to deem their retirement as retirement in 'public interest.' .... thus they were offered retiral benefits. They were offered the usual facility of commuting one third of their original pension under Civil Pensions (Commutation) Rules and were also offered additional facility of commuting the balance two-thirds pension also. This facility therefore creates three categories of these persons:

(1) the persons who have not commuted their pension and therefore draw full monthly pension from the Government;

(2) the persons who have commuted one third of the pension and therefore will draw a sliced monthly pension, reduced to the extent of commuted amount,

(3) the persons who have commuted the full pension and who will not be given any monthly pension by deeming monthy pension to have been reduced to NIL......

3. The above-mentioned second category of the retired Government servants namely, those who got one third pension commuted moved this Court for restoration of their one-third pension by filing a writ petition under Article 32 of the Constitution of India, (Vide "Common Cause" v. Union of India (1987) 1 SCR 491). The contention put forward in support of their claim for restoration of the one-third pension was that the lump sum amount paid gets adjusted by about 10 or 12 years and therefore, the Government must be directed to restore the commuted portion of one-third pension. ..... When the matter came up before this Court, a suggestion was made to the Government to give a new look to the matter. .....

..... accepting the 15 years rule, .... it is sufficient to indicate that on the expiry of fifteen years from the period of retirement, such restoration (of 1/3rd commuted pension) would take place.

7. To appreciate the claim of the petitioners, it is necessary to set out two relevant rules in the C.C.S. Pension Rules 1972. Rule 37 and 37A read as follows:-

Rule 37-A. : Payment of lump sum amount to person on absorption in or under a Corporation, company or body.

1) Where a Government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump sum amount in lieu of pension he shall in addition to the (retirement gratuity) be granted:-

a) on an application made in this behalf, a lump sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules, and

b) terminal benefits equal to the commuted value of the balance amount of pension left after commuting one-third of pension to be worked out with reference to the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the Government servant surrenders his right of drawing two-thirds of his pension."

8. ..... a clear-cut distinction is made in Rule 37-A itself between one-third portion of pension to be commuted without any condition attached and two-third portion of pension to be received as terminal benefits with condition attached with it...."


8. In short, the effect of the above quoted judgment is that the employees of PSUs will be treated on par with the Central Government pensioners to the extent of restoration of one-third portion of commuted pension after 15 years. It emphasises that the 2/3rd part of pension representing the lump sum payment for commuting additional two-thirds pension will not be restored but, one-third commuted pension will be restored on par with other Central Government employees. This is the genesis of the deduction of Rs.4000/- shown in the chart at Annexure-A/3 which is quoted in para 5 above.
Now, we come to analyse Annexures-A/4 and A/5.

9. Annexure-A/4 is the OM issued by DoPT on 6.9.2007 after the directions of the Supreme Court in the cases mentioned above. It reiterates some portions from the judgment and specifically mentions that the PSU employees, on restoration of 1/3rd pension shall get Dearness Relief, Interim Relief, etc., on full basic pension. It explains the modality of fixation of consolidation of pension and consolidation of 1/3rd restored pension. It states as under:
"As on 01.01.1996
(a) The full pension of the absorbees shall be notionally revised w.e.f. 1.1.1996 based on full pension as on 31.12.1995 in accordance with the instructions for revision of pension, issued for implementing the 5th Pay Commission recommenda- tions.

(b) The restorable 1/3rd pension shall be the sum of the following:

I. 1/3rd of full pension as on 31.12.1995.

II. Dearness Relief on full pension as on 31.12.1995

III. IR-1 and IR-II

IV. Fitment @ 40% of the full pension as on 31.12.1995.

Payment of DR shall be on full pension..."

This paragraph can be seen as containing three issues:-


The first issue is the modality for fixing the full pension as on 31.12.1995. The second issue is that based on this calculation of pension on 31.12.1995, the full pension of the absorbee shall be notionally revised with effect from 1.1.1996 as per the instructions for revision of pension issued for implementing the 5th Pay Commission recommendation. On that basis, the restorable 1/3rd pension shall be fixed. Third issue states that the Dearness Relief shall be paid on the full pension.

10. The respondents at Annexure-A/5, dated 14.12.2007, have tried to calculate the commuted value of pension as per the instructions in the OM at Annexure-A/4. This Annexure mentions three charts.
Chart-1
Chart-2:-

Consolidation of full pension:-
Pension as on
31.12.1995 : Rs.2082.00
DR @ 111%
(min 2590) Rs.2590.00
I – IR : Rs. 50.00
II- IR : Rs. 209.00
40% Fitment of
(2082) : Rs. 833.00
--------------------
Total : Rs.5764.00


Consolidation of 1/3rd portion of pension:

Pension as on
31.12.1995 : Rs. 694.00
DR @ 111%
(min 2590) : Rs.2590.00
I – IR : Rs. 50.00
II- IR : Rs. 209.00
40% Fitment
of (2082) : Rs. 833.00 --------------------
Total : Rs.4376.00



The first chart calculates his consolidated full pension at Rs.5,764/-. The second chart which is meant for consolidation of 1/3 portion of pension shows him to be entitled for a pension of Rs.4,376/-.
Accordingly, the chart 3 prepared by the respondents show his entitlement:
Consolidation of 1/3rd
of Pension Rs. 4376.00
DP 50% OF BP of 5764 Rs. 2882.00
---------------------------------
Rs. 7258.00
DR @ 41% of Rs. 3545.00
(5764+2882=8646) ... ... (41% being the rate applicable from 1.1.2008)
(5764+3000=8764) -----------------------------------------------
Total Rs.10803.00
-----------------------------------------------

11. The applicant relies on the second issue above to contend that this calculation is as on 31.12.1995 only. The scene changes on 1.1.1996 when the recommendations of the V CPC becomes applicable and the full pension of the applicant has to reach Rs.6000/-. It is therefore, his contention that an amount of Rs.236/- should be added to the total in both the charts, thus, bringing his pension notionally to Rs.6000/- and the consolidation of 1/3rd part of the pension would come to Rs.4612/-.

Further the DP should be 50% of Rs.6000/-. Similarly, the DR should be 41% of Rs.9000/- (being equal to the sum of minimum full pension of Rs.6000/- + DP of Rs.3000/-). The principle applied for the calculation of DP at Rs.3000/- and DR at 41% of Rs.6000 + 3000 DR is that in terms of Hon'ble Supreme Court decision dated 29.11.2006 (also referred in above OM) "anything which is not part of the pension commuted by him in 1988, has to be paid in full".
12. The chart 3, therefore, gets modified as under:
Consolidation of 1/3rd
of Pension Rs. 4612.00
DP 50% OF BP of 6000 Rs. 3000.00
---------------------------------
Total (not relevant)
DR @ 41% of Rs. 3690.00
(6000+3000=9000)
-----------------------------------------------
Total Rs.11302.00
-----------------------------------------------

13. The reply statement has been filed by the respondents and argued by the learned counsel. The respondents have disputed granting Dearness Pension of Rs.3000/- and Dearness Relief on Rs.9000/- which according to the respondents is only notional. Similarly, the Dearness Relief ;of 41% is also not due on Rs.9000/- which again is notional. Hence they claim that the calculations done at Chart-3 in Annexure-A/5 is correct and the applicant is entitled only for Rs.10,803 as at Annexure A5. On the similar lines as in Annexure A5, the respondents have calculated the effect of 6th Pay Commission revision thus justifying the order pased at Annexure A15.

14. We cannot agree with this argument. As per their own statement filed by way of reply, it is mentioned at para 6 that they have paid the Dearness Relief on full pension of Rs.6000/- thereby implying that they agree to this DR entitlement. We actually find that they did pay the Dearness Relief on basic pension of Rs.6000/- for the period 14.9.2003 to 31.3.2004. Their own order at Annexure-a/3 shows that they have merged Dearness Pension of Rs.3000/- and have calculated Dearness Relief at the rate of 11% on Rs.9000/- (11% being the prevalent rate then). Annexure-A/8 is also a letter dated 14.2.2008 issued by CSIR with the approval of Financial Adviser of CSIR to the Finance and Accounts Officer of CECRI, which reads as under:
"... it is clarified that Sh.P.S. Venkateswaran's restored amount of 1/3rd commuted portion of pension could be regulated in terms of provisions of OM No.45/10/98-P&PW(A), dated 17.12.1998 and other related instruc-tions on the subject by which his basic pension as on 1.1.96 may be revised to Rs.6000/-."

These take care of the issue of DP and DR.


15. At para 5 of the reply statement, the respoindents have stated that the applicant has received a capitalised value equivalent to 100% of pension and therefore, his minimum pension in the revised scale cannot be taken as Rs.6000/-, but, will have to be restricted to Rs.5764/- even for the purpose of calculating the Dearness Pension and Dearness Relief. We do not agree with this contention. As brought out clearly in the Supreme Court judgment in Welfare Association of PSUs case (para 7 supra), a clear-cut distinction has to be understood between the actions of commutiung 1/3rd pension and the 2/3rds pension. The capitalisation has happened only on the 2/3rd part of the commuted pension, but, all the benefits incumbent upon the remaining 1/3rd part will continue. Therefore, we agree fristly that the Dearness Pension must be taken as Rs.3000/-, Dearness Relief must be paid for Rs.9000/- at the applicable rate. For the same reason, we agree with the contention of the applicant that an additional fitment allowance of Rs.236/- must get added to chart No.1 and 2 of Annexure=A/5, thus, bringing the consolidation of 1/3rd of his pension to Rs.4612/- instead of Rs.4376/-. The word "notional" used in Annexure-A/4 is only to indicate that on 31.12.2005, the pension was notional as what was due to be paid was only 1/3rd consolidated value of it.

16. We, therefore, direct that the respondents shall work out the revised pension alongwith Dearness pension and Dearness Relief as above as far as V CPC is concerned. They will also calculate the revised pension, Dearness pension and Dearness Relief for the purpose of VI Pay Commission effective from 1.1.2006 on similar lines. All these calculations will be completed by the respondents in a period of 3 months from the date of this order and payment of all the arrears shall be made within a period of 6 months from the date of this order. No order as to costs.


(V.AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)
sd.

Saturday, November 19, 2011

OA NO.444/2010 on ?????????? of Mumbai bench at camp Goa

CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI,
CAMP AT GOA.

ORIGINAL APPLICATION NO.444/2010

This the day of , 2011

Coram : Hon'ble Shri Justice V.K.Bali, Chairman,
Hon'ble Smt.Leena Mehandale, Member (A).

Arezhi Sreedharan,
Flat No.1,
Villa Bambina,
Mamgor Hill,
Vasco-da-Gama,
Goa – 403 802. ...Applicant.
(By Advocate Shri G.Vijaychandran)

V/s.

1) Union of India through
The Secretary,
Ministry of Defence,
Room No.198,
South Block,
New delhi – 110 011.

2) Chief Personnel,
Directorate of Civil Personnel
Services, Integrated HQRS,
Ministry of Defence (Navy),
Sena Bhavan,
New Delhi – 110 011.

3) Flag Officer Commanding-in-Chief,
Headquarters,
Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai – 400 001.

4) The Flag Officer Goa Area,
Headquarters, Goa Naval Area,
Vasco-da-Gama,
Goa – 403 802. ...Respondents.
(By Advocate Shri M.Amonkar)
: O R D E R (ORAL) :
{Leena Mehandale, Member (A)}
This OA is filed on 24.6.2010 under Section 19 of the Administrative Tribunals Act, 1985.
2. The undisputed facts of the case are that, the applicant who joined his service in the Civilian Section of Indian Navy on 27.5.1969 was to superannuate on 30.6.2009 on attaining the age of 60 years. During the earlier part of his service, his date of increment was falling on 1st May. His last promotion received w.e.f. 26th May, 2008 to the post of Office Superintendent with respect to which his next due increment would have been on 1st May, 2009. However, in pursuance of the VIth Pay Commission recommendations, his pay in the rank of Assistant was fixed at Rs.12,090/- with Grade Pay of Rs.4,200/- in the Pay Band – 2 of Rs.9,300-34,800 w.e.f. 1.1.2006 and the next date of increment w.e.f. 1.7.2006 as opted by the applicant. Thus, even though the applicant was promoted as Office Superintendent on 26.5.2008 and his pay was fixed at Rs.13,090/- notionally with Grade Pay of Rs.4,200/- w.e.f. 25.5.2008. The date of next increment remained as 1st July. Accordingly his pay was refixed at Rs.14,150/- w.e.f. 1.7.2008. Both the parties are in agreement about this factual position.
3. It is, thus clear that, the applicant got his last increment on 1.7.2008 bringing his pay to Rs.14,150/- w.e.f. 1.7.2008 and he would have got his next increment on 1.7.2009. But, he retired just on the previous day viz. 30.6.2009 after having rendered one complete year's service with that pay.
4. It is the case of the applicant that he is entitled to an increment for the service rendered from 1.7.2008 to 30.6.2009. Had he continued in the service for just one day, he would have been able to claim his increment for the service rendered in future i.e. beyond 1.7.2009. However, the applicant would like to make a distinction between the entitlement for increment which is in respect of rendering future service and the right to pensionary benefit which is in respect of the service rendered in past. This is a peculiar case where the applicant has rendered one complete year of service in a particular grade, but his pensionary benefit would be counted only as if he had not completed the full one year service. The argument from the applicant's side is that since pensionary benefits are eligible for the reason of past service rendered, therefore the applicant should be held as entitled to the pensionary benefits as if he had been granted his increment which was due on 1.7.2009.
5. The argument of the Respondents was that the Rule for next increment is very clear and he has not been given increment on 1.7.2009 as he had already superannuated from the service on 30.6.2009. The increment accrues only from 1st day following that on which it is earned.
6. Thus, we find that a very fine distinction is sought to be made in this case. The applicant claims that the increment is earned by him at the end of 30.6.2009, whereas the Respondents claim that the increment accrues only on 1.7.2009. Thus, it is the question that while the benefits are earned by way of past one year's service on 30.6.2009. But the accrual of increment will happen only on 1.7.2009. The Rule is very clear that in case he continues in service further than 1.7.2009, then his salary will be drawn by giving the effect of the increment that accrued on 1.7.2009. But, this Rule does not specifically say anything about the pensionary benefits which are arising out of the service rendered and increment earned which has happened on 30.6.2009.
7. In view of this finer distinction made out by the applicant and also following the principles of natural justice, viz. that when the Rules are silent on the particular question then they may be interpreted in such a way as to give rightful benefit to the applicant. Here we find that the applicant has rendered service to the Government for more than 40 years and in view of the last one years's service he has defenitely rendered his service for one complete year in the scale of Rs.14,150/- given to him on 1.7.2008. Hence, we have no hesitation to allow the application. Ordered accordingly.

(LEENA MEHANDALE) (V.K.BALI)
MEMBER (A) CHAIRMAN

B.
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Sunday, October 16, 2011

T.A. NO.293/2010 on 16-03-2011

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE

T.A. NO.293/2010

WEDNESDAY, DATED THIS THE 16TH DAY OF MARCH, 2011

HON'BLE SMT. LEENA MEHENDALE ...MEMBER(A)
HON'BLE SHRI V. AJAY KUMAR ...MEMBER(J)


Veerappa
S/o late Nagappa Nandennavar,
Aged about 48 years,
Junior Telecom Officer, (Indoor),
O/o S.D.E. (Phones),
Saundatti, Dist. Belgaum. ...Applicant

(By Advocate Shri M.B.Nargund)

Vs.

1. Bharat Sanchar Nigam Ltd.,
Karnataka Telecom Circle,
Swamy Vivekananda Road,
Halasuru, Bangalore – 08.
Rep. By Chief General Manager(T),

2. General Manager (Telecom),
Belgaum Telecom District (BSNL),
Swaroop Plaza Building,
Tilakwadi, Belgaum – 01.

3. Assistant General Manager (Admn),
O/o General Manager (Tele),
Belgaum Telecom District,
Swaroop Plaza Building,
Tilakwadi, Belgaum – 01. ...Respondents

(By Advocate Shri N.Amaresh)


O R D E R (ORAL)

HON'BLE SMT. LEENA MEHENDALE ...MEMBER(A)


In this TA which was earlier filed as W.P. No.25352/2005(S) on 20.11.2005 before Karnataka High Court, the applicant prayed for refixation of pay as per his options. The learned Counsel for respondents submits a letter dated 18.3.2006 stating that the official had opted for:

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4. Revised date of effect for fixation of pay from the date of increment in the lower grade i.e., technician on OTBP promotion.
5. Grant of increment on 1.1.1996 on the revised scale (As per Note 2 of Rule 7 of 1996 pay rules)
6. Pay fixation from the date of promotion on TTA.

He further submits that accordingly, a letter has been issued dated 18.3.2006 by the Senior Accounts Officer (Cash), Bangalore to the Assistant General Manager (Admn), Belgaum to refix the salary of the applicant as per the option given by him. Subsequently, a letter was issued on 7.6.2006 by Senior Accounts Officer, Belgaum to their Head Office at Bangalore stating that the pay arrears have been drawn for the applicant as per instructions dated 18.3.2006. Subsequently, once again the Assistant General Manager, Belgaum has informed the Senior Accounts Officer, Head Office Bangalore that the pay fixation case of the applicant has been regulated in the month of April 2006.

2. In view of this letter and the documents submitted with it, it is seen that the relief prayed for by the applicant has been granted by the respondent department. Accordingly, TA No.293/2010 is disposed of. As requested by the learned Counsel for applicant, liberty is given to the applicant to approach the respondent department with consequential prayer, if he has any.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)

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OA No. 494 OF 2009 on ?????????-10-2010

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 494 OF 2009

TODAY, THIS THE .........DAY OF OCTOBER, 2010

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)

Anthony Steven,
S/o (Late) Daniel Crasta,
Aged about 40 years,
working as Group D,
Koramangala VI Block Post Office,
Bangalore – 560 095.
r/o No.19/2, 9th Cross, Maruthinagar,
New Extension, Madiwala,
Bangalore – 560 068. ... Applicant
(By Advocate Shri B. Veerabhadra)
Vs.
1. The Senior Superintendent of Post Offices,
Bangalore South Division,
Bangalore – 560 041.

2. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

3. The Director of Postal Services (HQ),
O/o the Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

4. The Union of India,
Rep. By its Secretary,
Department of Posts,
Ministry of Communication and Information Technology,
Dak Bhavan, Parliament Street,
New Delhi – 110 001. ... Respondents
(By Advocate Shri N.Y. Guruprakash,
Addl. Central Govt. Standing Counsel)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :

The cannons of good governance requires that departmental seniors pay timely attention to seemingly minor issues of staff such as posting, regularisation etc., which leads to better employee motivation and reduces number of lititations. We find that the present application necessitates this reminder.
- 2 -
This application is filed under Section 19 of the Administrative Tribunals Act, 1985 and the applicant seeks to be brought under perview of CCS (Pension) Rules 1972 and not under the perview of new pension scheme which is effective from 1.1.2004 and under which he has to make certain monthly contribution towards his future pension. Further the applicant prays for stoping the recovery from his salary under new pension scheme.

2. The applicant is a Group D employee working as a Casual Labour in the Department of Posts. The convention of the Department is to take casual labours, after fulfilling some conditions including one about number of days of work, are given a temporary Group D status (TS). Thereafter on fulfilment of some further conditions including condition for work in TS for 3 years, they are given a permanent Group D status.

3. The claim of the applicant is that he was given temporary status on 29.11.1989 and completed 3 years in that status on 29.11.1992, after which, he became eligible to be given a permanent status, although the same was actually given to him only on 26.4.2006. In the meantime, he was allowed to draw his monthly increments too. The Department, acting under the instructions of the Department of expenditure contained in OM No.F.No.1(7)(2)/2003/TA/19 dated 14.1.2004, (Annexure R1 - introduction of the new pension scheme) asking the employees who are appointed after 1.1.2004 to pay a monthly instalment towards Pension contribution. The employees appointed before 1.1.2004 were covered under the old CCS (Pension) Rules of 1972 and therefore, not required to make any monthly Pensionary contribution. The claim of the applicant is that the date of eligibility as a permanent status as Group 'D' employee entitles him to the pensionary benefits under the old scheme and therefore, no monthly contribution is due to be deducted from his salary. The claim of the Respondent department is that since the applicant was actually granted permanent status only on 26.4.2006, he is not covered
- 3 -
by the CCS (pension) scheme of 1972 but, only by the new Pension scheme and therefore, must pay the monthly instalment.

4. This application has a past history which is relevant. The applicant was actually regularised as Group 'D' permanent status on 19.4.2006 but his pay was fixed at the minimum of the scale of Rs.2550-3200 thus ignoring all the increments he had drawn while working as Group 'D' TS. His representation was rejected by stating that his pay in the entry grade was fixed at minimum as the amount drawn as wages prior to appointment as Group'D' permanent status could not be counted for pay fixation . However, this goes contrary to the instructions issued by the Department of Personnel and Training vide their memorandum dated 9.5.2008 which states that the pay of the casual labour with temporary status on their regularisation against Group 'D' post will be fixed after taking into account the increments already earned by them in the Group 'D' payscale. While the department seems to have observed these instructions during the period he was working as a casual labour with (TA), the same benefit was rejected when he was given the permanent stauts. Being aggrieved he filed an OA No.221/2008 which was decided by this Bench on 7.11.2008 directing the respondent department to give him all the benefits of the increments drawn while working as casual labour (TA) and refix his pay and also give him all the arrears in the matter. The said decision also makes a reference to consider his petition dated 14.12.2007 asking formaking his past service as casual labour (TA) eligible for pension and other pensionary benefits. Further, in that OA the applicant had requested as below-
"Orders may also be passed protecting my past services making it eligible for pension and other pensionary benefits".

Dealing with question of pension as prayed for this Tribunal had directed as below:
It is for the applicant to pursue the matter further with the respondents regarding counting of service rendered as Temporary Status Casual Labour (after completion of 3 years as Temporary Status Casual Labour). ........ If the applicant is aggrieved by the decision of the respondents regarding counting of past service, he is free to approach this Tribunal if his grievance is based on sound grounds."


- 4 -
5. In response to the request of the applicant dated 14.12.2007 for counting of his services as casual labour (TS) towards pensionary benefits or the directions of this Bench in the OA mentioned above, the department has not yet come to any decision. In effect his pensionary benefits stand granted only w.e.f. 19.4.2006 i.e., the date of his regularisation in Group 'D'. The applicant claims that the effect of this order is severe because the new scheme of pension introduced w.e.f. 1.1.2004 necessitates the employee to pay a monthly amount towards contribution to his provident account, this being in great contrast to the older scheme of pension (CCS (Pension) Rules 1972) under which the employee was not required to make any pension contribution. The representations made by the applicant dated 15.12.2008 (Annexure A3), 3.8.2009 (Annexure A4) and 5.10.2009 (Annexure A5) were not considered by the respondent department despite the direction of this Tribunal in OA No.221/2008. Hence the applicant has filed this OA for directing the respondents to hold him eligible under the CCS (Pension) Rules, 1972 and stop his recovery towards pension contribution.

6. The learned Counsel for applicant argued mainly on the ground that the applicant was given casual labour temporary status on 29.11.1989 and after completion of 3 years was entitled to be given regular status in Group 'D' w.e.f. 29.11.1992. It is due to the delay caused by the department that he was given permanent status in Group 'D' only w.e.f. 17.4.2006 and that too without considering the benefits of the annual increments drawn by him while serving as casual labour (TS). Thus he was entitled to a permanent status in Group 'D' w.e.f. 29.11.1992 as well as to pensionary benefits under CCS (Pension) Rules, 1972. In support he has submitted at Annexure A6, the letter dated 30.11.1992 of Department of Posts under Swamy's compilation. This is a clarification as to the pension and terminal benefits, under which at para-5 a Supreme Court judgement dated 29.11.1999 has been quoted that on completion of 3 years of continuous service with TS the casual labour shall be treated on par with the temporary Group 'D' employees of the Department of Post and would thereby they are entitled to such benefits as are
- 5 -
eligible to Group 'D' employees on regular basis. Further at para-5.2.3 there is a clear mentioned of pensionary benefits to be given on the same lines as in case of temporary employees appointed on regular basis. Further, the learned Counsel for applicant has quoted at Annexure A8 the decision given by the coordinate Bench of this Tribunal at Mumbai in OA No.639/2007 where it was held that the service rendered under temporary status should be counted for the purpose of retirement benefits after regularising as a regular Group 'D' official. The Mumbai Bench further observed that if a certain applicant has completed 3 years of service after being confered temporary status then he is entitled for pension. Thus the Mumbai Bench has held that service rendered even as temporary status is to be counted for pensionary benefits after the said casual labour is regularised. The Mumbai Bench have also relied on the judgement given by the Chandigarh Bench of this Tribunal in the case of Badri and others V. Union Territory, Chandigarh and others (2004 (1) AISLJ (CAT) 204) which also held similarly.

7. The learned Counsel for the respondents although relied on the averments made in the reply statement, also conceded that the sole ground advanced by the respondent department was that the actual order of putting the applicant as regular Group 'D' official was w.e.f. 17.4.2006. He, however, conceded that in view of the decision of the Mumbai Bench of the Tribunal the claim of the applicant appears justified. He pointed out the portion in the reply statement to say that : "However, the matter was taken up with the Director General, Department of Posts, New Delhi (Respondent No.4) to take decision regarding counting of service for the purpose of pension and terminal benefits, extension of benefits under CCS (Pension) Rules, 1972, for which the reply of the Director General is still awaited." However, Respondents-2&3 have failed to mention what efforts they have taken to remind the D.G.

8. In view of the above, we see no reason for allowing the department to wait till the decision of the D.G. We hold that the applicant became entitled to permanent status
- 6 -
on the date of the completion of 3 years as casual labour (TS) i.e., w.e.f. 29.11.1992 and must be given the pensionary benefits under older Scheme i.e, CCS (CCA) Rules, 1972. As such,
(a) the department must issue orders holding him eligible for pensionary benefits under the Rules, 1972 w.e.f. The date when he was granted casual
labour Temporary status.
(b) discontinue recovery towards contribution under new scheme and
(c) refund the money recovered, so far, if any – towards pension.
In view of the judgement of Mumbai Bench in OA No.639/2007 the responsdent had a responsibility not to allow this application to linger on. Therefore the department is well advised to take a review of all such representations pending with them and proceed to grant relief on the lines as indicated by the Mumbai Bench. We reiterate that there is no substitute to administrative efficiency and the Government Department have a responsibility to ensure efficient redressal of grievances of their employees failing which they only increase the work of the Tribunal and cause undue hardship to genuine employees. The present case being a classic example of the same, we deem it fit to impose a cost of Rs.2000/- on the department.
The application is thus allowed. The relief directed at (a), (b) and (c) above should be given within 2 months. No order as to costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)
sd.







CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No.494 OF 2009

Draft judgement/order in the above said OA is placed below for approval /signature.

(LEENA MEHENDALE)
MEMBER(A)

HON'BLE MEMBER(J), SHRI V. AJAY KUMAR

CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH : BANGALORE

ORIGINAL APPLICATION No. 494 OF 2009

TODAY, THIS THE .........DAY OF OCTOBER, 2010

HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)

HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)

Anthony Steven,
S/o (Late) Daniel Crasta,
Aged about 40 years,
working as Group D,
Koramangala VI Block Post Office,
Bangalore – 560 095.
r/o No.19/2, 9th Cross, Maruthinagar,
New Extension, Madiwala,
Bangalore – 560 068. ... Applicant
(By Advocate Shri B. Veerabhadra)
Vs.
1. The Senior Superintendent of Post Offices,
Bangalore South Division,
Bangalore – 560 041.

2. The Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

3. The Director of Postal Services (HQ),
O/o the Principal Chief Post Master General,
Postal, Karnataka Circle, Palace Road,
Bangalore – 560 001.

4. The Union of India,
Rep. By its Secretary,
Department of Posts,
Ministry of Communication and Information Technology,
Dak Bhavan, Parliament Street,
New Delhi – 110 001. ... Respondents
(By Advocate Shri N.Y. Guruprakash,
Addl. Central Govt. Standing Counsel)


O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


























The cannons of good governance requires that departmental seniors pay timely attention to seemingly minor issues of staff such as posting, regularisation etc., which leads to better employee motivation and reduces number of lititations.
This application is filed under Section 19 of the Administrative Tribunals Act, 1985 and the applicant seeks to be brought under perview of CCS (Pension) Rules 1972 and not under the perview of new pension scheme which is effective from 1.1.2004 and under which he has to make certain monthly contribution towards his future pension. Further the applicant prays for stoping the recovery from his salary under new pension scheme.

2. The applicant is a Group D employee working as a Casual Labour in the Department of Posts. The convention of the Department is to take casual labours, who, after fulfilling some conditions including one about number of days of work, are given a temporary Group D status. Thereafter on fulfilment of some further conditions including condition for work in TS for 3 years they are given a permanent Group D status.

3. The claim of the applicant is that he was given temporary status on 29.11.1989 and completed 3 years in that status on 29.11.1992, after which, he became eligible to be given a permanent status, although the same was actually given to him only on 26.4.2006. In the meantime, he was allowed to draw his monthly increments too. The Department, acting under the instructions of the Department of expenditure contained in OM No.F.No.1(7)(2)/2003/TA/19 dated 14.1.2004, introduced the new pension scheme (Annexure R1) asking the employees who are appointed after 1.1.2004 to pay a monthly instalment towards Pension contribution. The employees appointed before 1.1.2004 were covered under the old CCS (Pension) Rules of 1972 and therefore, not required to make any monthly Pensionary contribution. The claim of the applicant is that the date of eligibility as a permanent status as Group 'D' employee entitles him to the pensionary benefits under the old scheme and therefore, no monthly contribution is due to be deducted from his salary. The claim of the Respondent department is that since the applicant was actually granted permanent status only on 26.4.2006, he is not covered by the CCS (pension) scheme of 1972 but, only by the new Pension scheme and therefore, must pay the monthly instalment.

4. This application has a past history which is relevant. The applicant was actually regularised as Group 'D' permanent status on 19.4.2006 but his pay was fixed at the minimum of the scale of Rs.2550-3200 thus ignoring all the increments he had drawn while working as Group 'D' Temporary Status. His representation was rejected by stating that his pay in the entry grade was fixed at minimum as the amount drawn as wages prior to appointment as Group'D' permanent status could not be counted for pay fixation . However, this goes contrary to the instructions issued by the Department of Personnel and Training vide their memorandum dated 9.5.2008 which states that the pay of the casual labour with temporary status on their regularisation against Group 'D' post will be fixed after taking into account the increments already earned by them in the Group 'D' payscale. While the department seems to have observed these instructions during the period he was working as a casual labour with temporary status, the same benefit was rejected when he was given the permanent stauts. Being aggrieved he filed an OA No.221/2008 which was decided by this Bench on 7.11.2008 directing the respondent department to give him all the benefits of the increments drawn while working as casual labour (temporary status) and refix his pay and also give him all the arrears in the matter. The said decision also makes a reference to consider his petition dated 14.12.2007 for .................. Annexure . Further, in that OA the applicant had requested as below-
"Orders may also be passed protecting my past services making it eligible for pension and other pensionary benefits".

This prayer mentions "Pensionary service as he has become Temporary Group D from 26.11.92 and accordingly modify the memo in No.B2/2-2/65-I/05-06 dated 17.4.2006 (Annexure A3) as it does not indicate the service benefits as well as the pay protection.

Dealing with question of pension as prayed for this Tribunal had directed as below:
It is for the applicant to pursue the matter further with the respondents regarding counting of service rendered as Temporary Status Casual Labour (after completion of 3 years as Temporary Status Casual Labour). ........ If the applicant is aggrieved by the decision of the respondents regarding counting of past service, he is free to approach this Tribunal if his grievance is based on sound grounds."


5. In response to the request of the applicant for counting of his services as casual labour (TS) towards pensionary benefits, the department has held that this cannot be done and his pensionary benefits can be granted only w.e.f. 19.4.2006 i.e., the date of his regularisation in Group 'D'. The applicant claims that the effect of this order is severe because the new scheme of pension introduced w.e.f. 1.1.2004 necessitates the employee to pay a monthly amount towards contribution to his provident account, this being in great contrast to the older scheme of pension (CCS (Pension) Rules 1972) under which the employee was not required to make any pension contribution. The representation made by the applicant dated 15.12.2008 (Annexure A3), 3.8.2009 (Annexure A4) and 5.10.2009 (Annexure A4) were not considered by the respondent department despite the direction of this Tribunal in OA No.221/2008. Hence the applicant has filed this OA for directing the respondents to hold him eligible under the CCS (Pension) Rules, 1972 and stop his recovery towards pension contribution.

6. The learned Counsel for applicant argued mainly on the ground that the applicant was given casual labour temporary status on 29.11.1989 and after completion of 3 years was entitled to be given regular status in Group 'D' w.e.f. 29.11.1992. It is due to the delay caused by the department that he was given temporary status in Group 'D' only w.e.f. 17.4.2006 and that too without considering the benefits of the annual increments drawn by him while serving as casual labour (TS). Thus he was entitled to a permanent status in Group 'D' w.e.f. 29.11.1992 as well as to pensionary benefits under CCS (Pension) Rules, 1972. In support he has submitted at Annexure A6, the letter dated 30.11.1992 of Department of Posts under Swamy's compilation. This is a clarification as to the pension and terminal benefits, under which ....... Further, the learned Counsel for applicant has quoted at Annexure A8 the decision given by the coordinate Bench of this Tribunal at Mumbai where it was held that the service rendered under temporary status should be counted for the purpose of retirement benefits after regularising as a regular Group 'D' official. The Mumbai Bench further observed that if a certain applicant has completed 3 years of service after being confered temporary status then he is entitled for pension. Thus the Mumbai Bench has held that service rendered even as temporary status is to be counted for pensionary benefits after the said casual labour is regularised. The Mumbai Bench have also relied on the judgement given by the Chandigarh Bench of this Tribunal in the case of Badri and others V. Union Territory, Chandigarh and others (2004 (1) AISLJ (CAT) 204) which also held similarly.

9. The learned Counsel for the respondents although relied on the averments made in the reply statement, also conceded that the sole ground advanced by the respondent department was that the actual order of putting the applicant as regular Group 'D' official was w.e.f. 17.4.2006. He, however, conceded that in view of the decision of the Mumbai Bench of the Tribunal the claim of the applicant appears justified. He pointed out the portion in the reply statement to say that : "However, the matter was taken up with the Director General, Department of Posts, New Delhi (Respondent No.4) to take decision regarding counting of service for the purpose of pension and terminal benefits, extension of benefits under CCS (Pension) Rules, 1972, for which the reply of the Director General is still awaited." Although the Counsel also represents the D.G. (Respondent-3), he could not comment on the reason for pendency by the DG.

10. In view of the above, we see no reason for allowing the department to wait till the decision of the Respondent-4. We hold that the applicant became entitled to permanent status on the date of the completion of 3 years as casual labour (TS) i.e., w.e.f. 29.11.1992 and must be given the pensionary benefits under older Scheme i.e, CCS (CCA) Rules, 1972. As such,
(a) the department may issue orders holding him eligible for pensionary benefits uner the Rules, 1972 and
(b) discontinue his continuation under new scheme and
(c) refund all the money recovered, if any.
In view of the judgement of Mumbai Bench in .............. the responsdent had a responsibility not to allow this application to linger on. Therefore the department well advised to take a review of all such representations pending with them and proceed to grant relief on the lines as indicated by the Mumbai Bench in case No......... We reiterate that there is no substitute to administrative efficiency and the Government Department have a responsibility to ensure efficient redressal of grievances of their employees failing which they only increase the work of the Tribunal and cause undue hardship to genuine employees.
The application is thus allowed. The relief directed at (a), (b) and (c) above should be given within 2 months. No order as to costs.


(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER(J) MEMBER(A)
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