The Allahabad High Court while allowing the petition of a Railway employee said that whatever orders are passed by the Tribunal/ Court are based on the entitlement of the parties in accordance with law and there is nothing to be thankful about the same.
The Division Bench of Chief Justice Arun Bhansali and Justice Vikas Budhwar passed this order while hearing a petition filed by Avinashi Prasad.
The petition is directed against the order dated 31.03.2022 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application filed by the petitioner, whereby the Original Application filed by the petitioner seeking relief pertaining to promotion on the basis of seniority fixed with reference to 03.02.1990 with all consequential benefits and allow the petitioner benefit of passes and pension scheme and other pensionary benefits as provided under the Railway Services (Pension) Rules, 1993 as he was screened in 1989 and empanelled in the panel dated 03.02.1990 has been dismissed.
The petitioner was engaged as casual labour w.e.f 16.04.1980. The respondents initiated a process to regularise the services of casual labourers, however, they left out the name of the petitioner and certain other persons. Feeling aggrieved, Original Application was filed.
A response was filed indicating that inadvertently, the names of the applicants therein were left out, which the respondents agreed to include, based on which the Original Application was disposed of on 16.02.1993.
The regularisation was denied on the ground that for a certain period the petitioner had worked as a casual labour and he was minor.
Original Application was filed, which came to be decided on 04.01.2001 requiring the petitioner to make representation before the respondents. The representation came to be rejected.
Another Original Application was filed, which came to be decided on 21.09.2004 whereby the order rejecting the representation was set aside and the respondents were directed to renew/ regularize/screen the petitioner considering his period of service both as minor as well as major.
The respondents filed a petition against the order dated 21.09.2004, which was dismissed by the Court on 20.09.2005.
When the order dated 21.09.2004 passed by the Tribunal was not implemented, Contempt Application was filed, which came to be disposed of on 05.04.2007 granting time to the respondents for compliance of the judgement dated 21.09.2004.
Another writ petition was filed by the respondents, which came to be decided on 28.09.2007.
Pursuant to the judgement dated 28.09.2007 passed in Writ Petition, the respondents absorbed the petitioner by order dated 10.12.2007 on the post of Trackman (Group -’D’ post). The petitioner claiming seniority filed an original application, which came to be disposed of by order dated 29.09.2008 requiring the respondents to take a decision in the matter. The respondents by order dated 04.03.2009 took a decision that seniority of the petitioner would be considered with effect from 03.02.1990 and he would be accorded promotion.
Pursuant to the said order, the petitioner was accorded promotion on the post of Trackman, Tea-man, Senior PWS and Senior Section Engineer. The petitioner on account of grant of seniority and promotion claimed that he may be given the benefit of pension as well under the Old Pension Scheme. When the same was not granted, he filed the original application.
The Tribunal, after hearing the parties, came to the conclusion that the claim made by the petitioner that respondents should pass specific order with respect to his entitlement of pension is not worthwhile at this stage as the applicant/petitioner is still in service and order with respect to payment of pension is passed at the time of superannuation or just prior to that.
The Tribunal further observed that as the petitioner has subscribed to the new pension scheme, which has come into operation with effect from 01.04.2004, there was no question of passing a separate order with respect to entitlement of pension to the petitioner. The Tribunal was also of the opinion that the petitioner should be thankful that he has been accorded the benefit of a regular employee unlike hundreds of others who are litigating each and every day without getting such relief. Consequently, the original application was dismissed.
The Court observed that,
So far as the observations made by the Tribunal that relief claimed by the petitioner with respect to his entitlement for pension is not worthwhile at this stage as the applicant is still in service and order with respect to payment of pension is passed at the time of superannuation or just prior to that, is concerned, the same cannot be sustained inasmuch as once the respondents while according appointment to the petitioner have made the new pension scheme applicable to him, the petitioner was required to question the validity of the said action immediately and not wait till his retirement and then question the same, as such, the said observations made by the Tribunal cannot be sustained.
The matter has a long chequered history, wherein the petitioner was made to approach the Tribunal on five occasions and against two orders, the respondents had approached the Court and again he was made to approach the Tribunal on sixth occasion by filing the original application.
The Court further observed that,
The Tribunal rejected the Original Application only on the ground that the petitioner had subscribed to the new pension scheme when he was accorded appointment in 2008. The mere fact that though the petitioner was entitled to appointment along with others with effect from 03.02.1990, which was not accorded to him and after several rounds of litigations, at last the same was accorded to him in 2008 and on further litigating he was given benefit of seniority and promotion with effect from 03.02.1990, apparently he cannot be deprived of the benefits to which he would have been entitled to in case he was accorded appointment in time along with those similarly situated i.e. on 03.02.1990. On the date from which the petitioner has been accorded benefit of seniority and promotion, admittedly the old pension scheme was in vogue as the new pension scheme was introduced only with effect from 01.04.2004 and therefore, he was entitled to be governed by the old pension scheme only.
The fact that when he was accorded appointment in 2008 he subscribed to the new pension scheme, apparently cannot militate against petitioner’s entitlement to get the benefit of old pension scheme inasmuch as once the appointment was being accorded after 18 years of his entitlement and after filing of several Original Applications before the Tribunal, his denial to subscribe to the new pension scheme at that stage would have, going by the conduct of the respondents, deprived him of the said appointment as well.
Immediately, on getting appointment he has sought relief pertaining to seniority, promotion and pension. While seniority and promotion have been accorded to him, the relief pertaining to pension was not responded and when the Original Application was filed, the same was rejected by the Tribunal on account of his subscribing to the new pension scheme, which aspect cannot be sustained.
The above aspect can be examined from another angle, wherein while for the purpose of seniority and promotion of the petitioner in service record the relevant date is 03.02.1990, while for the purpose of pension, the same is taken as date of appointment i.e 18.01.2008, which in terms is contradictory and cannot be sustained.
“The observations made by the Tribunal that the applicant/ petitioner should be thankful that he has been accorded the benefit of a regular employee unlike hundreds of others, who are litigating each and every day before the Tribunal without getting such relief, to say least are wholly uncalled for. The observations give a feeling as if the Tribunal while passing the order in favour of the applicant/petitioner and/or the respondents in accordance with the orders of the Court have extended some favour to the petitioner. Whatever orders are passed by the Tribunal/Court are based on the entitlement of the parties in accordance with law and there is nothing to be thankful about the same. However, we leave the said aspect at that,” the Court said while allowing the petition.
“The order passed by the Tribunal dismissing the Original Application is set aside. The Original Application filed by the petitioner is allowed, the respondents are directed to accord benefit of old pension scheme and other pensionary benefits as provided under the Railway Services (Pension) Rules, 1993 to the petitioner with all consequences, in accordance with law,” the order reads.