Union of India v. Late Dr. Nusrat Hameed Khan through Lrs Mrs. Zeenat Hameed Khan & Ors.

1. The present writ petition under Articles 226 and 227 of the Constitution of India seeks to assail the order dated 02.06.2023 passed by the learned Central Administrative Tribunal in O.A. 240/2021. Vide the impugned order, learned Tribunal has allowed the original application filed by the respondents wherein they had prayed that the benefits of the pension scheme under the CCS (Pension) Rules, 1972 (commonly known as ‘Old Pension Scheme’) be extended to them.

2. While allowing the original application, the learned Tribunal noted the fact that all the respondents were working continuously with the petitioner-organization since 1996 albeit on ad hoc basis, and came to be regularized w.e.f 03.02.2004 i.e. soon after the National Pension Scheme (commonly known as ‘New Pension Scheme’) came into force w.e.f 01.01.2004. The learned Tribunal also took into account the O.M. dated 03.03.2023 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Pensions and Pensioners’ Welfare whereunder, it was directed that the benefits of the Old Pension Scheme would be extended to all those employees, who had been appointed against vacancies, which were notified or advertised before 01.01.2004. Furthermore, the learned Tribunal has also taken note of several decisions of different High Courts as also of Co-ordinate Benches of the Tribunal.

3. In support of this petition, learned counsel for the petitioners submits that the learned Tribunal has failed to appreciate the difference between ad hoc service and regular service. He submits that the service rendered by the respondents before they were regularised w.e.f 03.02.2004 would not fall within the ambit of O.M. dated 03.03.2023, as the said OM is not applicable to ad hoc employees.

4. On the other hand, Mr. K.C. Mittal, learned counsel for the respondents supports the impugned order, and submits that even though it is correct that ad hoc employees cannot be equated with the regular employees, the respondents were appointed against sanctioned posts pursuant to advertisement issued in the newspapers in 1996 and had already rendered 18 years of service before 01.01.2004, when the new pension scheme came into force. He, further, submits that the posts against which the respondents were regularised w.e.f 03.02.2004 were identified for regularization much earlier but they were regularized w.e.f 03.02.2004 only to deprive them the benefits of old pension scheme. He, further, submits that the petitioners have already extended the benefits of old pension scheme to many similarly situated employees including one Smt. Kiran Negi, who was appointed as a Research Assistant on 02.07.1992 on ad hoc basis and was thereafter regularized w.e.f. 09.03.2004. He, therefore, prays that the writ petition be dismissed

5. In order to appreciate the rival submissions of the learned counsel for the parties, it would be apposite to begin with by noting the relevant extracts of the impugned order, which read as under:-

The Hon’ble High Court upheld the decision of coordinate Bench of this Tribunal at Chandigarh. In the instant case, the applicants have been appointed by following due process of advertisement and recruitment rules well before 1.1.2004. They were appointed on adhoc basis against the regular vacancies in the year 1996. In view of the applicability of the ratios of judgments and orders mentioned above, the present applicants are entitled to get the benefit of Old Pension Scheme.

14. In view of this, the present OA is allowed and the respondents are directed to allow the present applicants to exercise their option to migrate to the Old Pension Scheme. Once the applicants furnished their option to migrate to the Old Pension Scheme, they shall be allowed to be migrated to such Scheme. This exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. There is no order as to costs. All pending MAs are also disposed of accordingly.”

6. From a perusal of the aforesaid, it is evident that the Tribunal has allowed the O.A. by relying on various decisions of different High Courts, wherein it was held that the employees who were appointed on ad hoc/temporary/casual basis against regular vacancies following due process of appointment in pursuance to advertisements, followed by their regularization, would be entitled to count their ad hoc service as qualifying service of employee towards pension. In this regard, it may be apposite to refer to relevant extracts of decision of Punjab and Haryana High Court in Harbans Lal v. State of Punjab (CWP 2371/2010), which reads as under: "From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Re-Structured Defined Contribution Pension Scheme (Annexure –P[1]) has been introduced for the new entrants in the Punjab Government Services w.e.f 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure- P[2] ammending the Punjab Civil Services Rules, cannot be further amended by issuing clarifications/instructions dated 30.05.2008 (Annexure P-3). The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Govt. Services prior to 01.01.2004."

7. In the present case, all the respondents were appointed in 1996 against vacancies which were duly advertised in March 1996. Though these appointments were made on ad hoc basis at that stage, the respondents have continued in service throughout and have been regularised on the same post w.e.f 03.02.2004. Once the respondents have been regularised against the same posts, which were advertised in the year 1996 when they were appointed on ad hoc basis, we see no reason to differ with the view taken by the Punjab and Haryana High Court in Harbans lal (supra) that this service must be counted for the purpose of considering their eligibility for old pension scheme.

8. Furthermore, it is noteworthy that this exercise of regularization was carried out barely one month after the new pension scheme came into effect. Learned counsel for the petitioners has not been able to deny that the posts against which the respondents were regularised were identified much earlier and therefore, even if we were to ignore the ad hoc services of the respondents, it is evident that the posts against which they have been regularised stood identified much before 01.01.2004. We are, therefore, of the considered view that the learned Tribunal was justified in holding that the case of the respondents was squarely covered under the DoPT’s O.M. dated 03.03.2023, as per which, persons appointed against posts which are advertised or notified prior to 01.01.2004 were eligible for grant of benefits under the old pension scheme.

9. For the aforesaid reasons, we find no reason to interfere with the impugned order. The writ petition, being meritless is, dismissed along with all pending applications.

10. The petitioners, as prayed for, are granted eight weeks time to implement the impugned order.