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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14327 OF 2018
Jaswant Navnitlal Mistry, Adult, having his address at B-06, Panchali
Co-operative Housing Society, Plot No 29, Sector 42, Nerul, Navi Mumbai - 400 706
) ….Petitioner
Headquarter, Plot No.1, Near Kille Gaonthan, Palm Beach Junction, Sector 15A, C.B.D Belapur, Navi Mumbai - 400 614
)
2. Deputy Municipal Commissioner
(Administration), Navi Mumbai Municipal
Corporation, having his office address at
NMMC Headquarter, Plot No.1, Near Kille
Gaonthan, Palm Beach Junction, Sector 15A, C.B.D Belapur, Navi Mumbai - 400 614
)
3. Navi Mumbai Municipal Corporation having its address at NMMC Headquarter, Plot No.1, Near Kille Gaonthan, Palm Beach Junction, Sector 15A, C.B.D Belapur, Navi Mumbai - 400 614
)
4. City And Industrial Development
Corporation of Maharashtra Ltd., CIDCO Bhavan, CBD, Belapur, Navi Mumbai, Maharashtra – 400 614
Through Managing Director
)
5. The State of Maharashtra ) ….Respondents
----
Mr. Sugandh Deshmukh a/w. Mr. Aniket Kanawade, Mr. Irvin
D’souza, Mr. Bhushan Deshmukh, Mr. Vaibhav Thorave and
Ms. Karishma Shinde for the Petitioner.
Mr. Tejesh Dande for Respondent Nos.1 to 3.
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The Petitioner has put forth prayer clauses (a) and (b), as under: (a) That this Hon'ble Court be pleased to pass a Writ of Certiorari or any other Writ order or direction in the nature of Certiorari calling for the records leading to the passing of the impugned communication dated 02/08/2018 issued on the basis of the G.R. dated 31/10/2005 and after going through the validity and legality of the impugned communication quash and set aside the same on the ground of non applicability of the G.R. dated 31/10/2005. (b) That this Hon'ble Court be pleased to pass a Writ of Mandamus or any other Writ order or direction in the nature of Mandamus directing the Respondents to apply the provisions of Maharashtra Civil Service (Pension) Rules, 1982 to the Petitioner and to sanction the pension benefit and to forthwith release the gratuity and the earned leave encashment due and payable to the Petitioner alongwith interest from the date of superannuation till payment or realisation.
3. CASE OF THE PETITIONER (a) The Petitioner joined the services of Respondent No.4, City and Industrial Development Corporation of Maharashtra Ltd. (hereinafter referred to as ‘CIDCO’), as a Junior Engineer on 15th July, 1983, pursuant to the appointment order dated 28th June, 1983; (b) On 7th April, 1995, the Petitioner was promoted to the post of Assistant Executive Engineer (Civil). Between 1993 to 2005, the Petitioner was posted on the Hetawane Water Supply Project of CIDCO, which was a bulk water supply project for Navi Mumbai. The Morbe Dam Project was similar to the Hetawane Water Supply Project. In 2002, the Morbe Dam Project, which was incomplete, was transferred from Maharashtra Jeevan Pradhikaran (hereinafter referred to as ‘MJP’) to Respondent No.3, Navi Mumbai Municipal Corporation. The project was incomplete till 2007;
(c) As the Petitioner had successfully handled the
Hetawane Water Supply Project, Respondent No.1, Municipal Commissioner, on behalf of Respondent No.3 Corporation, requested CIDCO to depute the Petitioner on the Morbe Dam Project, on the post of Executive Engineer, for a period of one year. February, 2008, the request of the Corporation was accepted by CIDCO. On 25th February, 2008, the Petitioner was relieved from CIDCO and sent on deputation to Respondent No.3.
(d) By a communication dated 24th February, 2010,
Respondent No.1 requested CIDCO for further extension of the deputation for two years. Considering that the Petitioner was on deputation for four years with the Corporation, he requested the Corporation on 30th August, 2010 to have him permanently absorbed in the service of the Corporation; (e) The General Body of the Corporation passed Resolution No.425 on 19th October, 2010 thereby resolving to absorb the Petitioner on the terms and conditions set out in the Resolution, along with the entire past service of the Petitioner; (f) CIDCO issued its consent on 3rd December, 2010 agreeing for such absorption; (g) On 4th June, 2011, the order of absorption was issued by imposing such condition on the Petitioner, that his past services would also stand absorbed if he deposits the pension contribution and also deposit the amount of gratuity lying with CIDCO; (h) The Petitioner paid the entire amount in accordance with the above condition;
(i) The Corporation prepared the service book of the
Petitioner for the period from 15th July, 1983 till 30th June, 2017; (j) The Petitioner superannuated on 30th June, 2017; (k) The Petitioner started addressing communications to the Corporation requesting for sanction of the benefit of pension and payment of gratuity and earned leave encashment;
(l) The Petitioner’s Advocate issued a notice on
(m) Vide communication dated 2nd August, 2018, the
Corporation refused to grant the Old Pension Scheme to the Petitioner on the ground that the Government Resolution dated 31st October, 2005 would not support the claim of the Petitioner; (n) The Corporation also refused to release the gratuity and earned leave encashment and also informed that the General Provident Fund Scheme will not be applicable to the Petitioner.
STAND OF THE STATE
4. The learned AGP submits, on instructions that according to the State, since the service of the Petitioner has been absorbed by the Corporation and since the Maharashtra Civil Services (Pension) Rules, 1982 are now applicable to the Petitioner, the Petitioner would be entitled for the old pension scheme in accordance with law.
STAND OF THE CORPORATION
5. In the affidavit in reply of the Corporation dated 5th March, 2019, it has been averred in paragraph no.2 that all employees recruited in the Municipal Corporation on or after 1st November, 2005, would be governed by the new Defined Contributory Pension Scheme (DCPS). The Pension Scheme as per the MCS (Pension) Rules, 1982 was discontinued by the Corporation, save and except, for the employees who are recruited prior to 1st November, 2005. In paragraph no.4 of the affidavit, the Corporation has stated that the service of the Petitioner in CIDCO was not pensionable and since he was absorbed in the Corporation, while accepting his resignation, CIDCO has paid him the accumulations towards Provident Fund with interest (Employee’s contribution), CIDCO’s contribution (Employer’s contribution) and gratuity.
6. In paragraph no.5 of the affidavit, on the one hand the Corporation contends that since the service of the Petitioner was absorbed by the Corporation and because service with CIDCO was not pensionable, the MCS (Pension) Rules cannot be made applicable to the Petitioner. On the other hand, it is averred that the Corporation should not have directed the Petitioner to deposit the pension contribution and gratuity as well as leave encashment, that he received from CIDCO. It is further stated that the Corporation overlooked the position that the service of the Petitioner with CIDCO was not pensionable and has wrongly issued the letters dated 30th October, 2010 and 4th June, 2011. By a communication dated 18th February, 2019, the Commissioner of the Corporation directed refunding of the amount to the Petitioner which he had deposited with the Corporation in terms of the conditions imposed upon him by the Corporation.
ANALYSIS AND CONCLUSIONS
7. In view of the above, it would be appropriate to evaluate the entire circumstances leading to the Petitioner’s absorption by the Corporation along with his entire service and the effect of fulfillment of the conditions put forth by the Corporation vide its Resolution No.425.
8. The communication dated 14th May, 2007 addressed by the Commissioner of the Corporation to the Managing Director of CIDCO indicates the dire need of a competent Officer to ensure that the Morbe Dam Project is taken to fruition. For the said purpose, an experienced Executive Engineer was needed by the Corporation. The Corporation specifically named the Petitioner while putting forth its request, considering that the Petitioner had successfully completed the Hetawane Water Supply Project. In response, CIDCO communicated to the Commissioner, vide a letter dated 22nd February, 2008, that the Petitioner was being sent on deputation to the Corporation. It was also mentioned that the Petitioner’s past service record is clean, there was nothing adverse in his Annual Confidential Reports and there was no disciplinary or vigilance case pending against him.
9. The terms and conditions made applicable for sending the Petitioner on deputation are also before us and there is no dispute on the same. Clause (6) of the terms read as under:
6. Absorption by NMMC: In case it is decided to absorb the service of Shri Jaswant Mistry in NMMC, then he shall be considered to have resigned from the services of Corporation from the date on which he is absorbed in the services of the NMMC and he will have to pay three months salary to the Corporation.
10. It is, thus, apparent that Clause (6) indicates that the Corporation was given the liberty to absorb the services of the Petitioner and if it so decides, he would be deemed to have resigned from CIDCO and he would be absorbed in the service of the Municipal Corporation and will have to pay three months salary to CIDCO.
11. The Commissioner requested CIDCO for an extension in the deputation considering that the Morbe Dam Project was yet to be completed and his services were required. Accordingly, an extension was granted to the deputation.
12. On 30th August, 2010, the Petitioner requested the Corporation for absorbing his services keeping in view his major active participation in the Hetawane Water Supply Project for CIDCO and his efficient handling of the Morbe Dam Project for the Municipal Corporation. The Municipal Corporation, in its meeting held on 9th September, 2010, passed a Resolution No.425, thereby agreeing to accept the absorption of the Petitioner with a further decision to request for creation of a post under Section 51(4) of the then Bombay Provincial Municipal Corporations Act, 1949 (presently the Maharashtra Municipal Corporations Act, 1949).
13. The Petitioner addressed a communicated dated 12th November, 2010 to the CIDCO Authorities, stating therein that he agrees to all the terms and conditions set out by CIDCO in its ‘no objection’ communication for absorption of the Petitioner in the service of the Corporation. Accordingly, he expressed his consent to accept the terms and stated that his entire service be transferred to the Corporation and he is willing to deposit the contribution that is required for deriving pensionary benefits. He also expressed his consent for transferring his entire gratuity amount till the date he was with CIDCO, into the account of the Corporation. He also prayed that the earned leave encashment may be paid to him and if it is not possible for CIDCO to make the payment, he may even waive the said benefit. Alternatively, he prayed that the leave encashment after February, 2008 may be transferred to the Corporation. He then, requested CIDCO for payment of Contributory Provident Fund (CPF) accumulations to him and he was willing to deposit the entire contribution towards GPF with the
14. The Commissioner of the Municipal Corporation issued an order on 4th June, 2011 absorbing the services of the Petitioner as per the applicable Pay Scales/Pay Commission recommendations/ Pay Band for the post of Executive Engineer. Around 16 conditions were imposed on the Petitioner. Though the service of the Petitioner was absorbed by the Corporation, it was mentioned that his seniority with CIDCO would not be considered. He would be the last person in the seniority list of Executive Engineer with the Corporation.
15. In order to absorb even the past service of the Petitioner, he was put under the condition of depositing the amount of pension, Contributory Provident Fund in his name, with the Municipal Corporation within two months. There is no dispute that the Petitioner has complied with this condition. He also complied with the condition of transferring the gratuity amount from the date he joined service with CIDCO, in the account of the Corporation. He was also under the condition to deposit the earned leave amount accumulated during his deputation period, in cash, with the
16. Service Rules of the Corporation would be applicable to the Petitioner after his services are absorbed by the Corporation. The General Provident Fund Scheme (GPF) will also be made applicable to the Petitioner from the date of his absorption. Since Employees’ Insurance Scheme, under the Employees' State Insurance Act, 1948 (ESIC Act), was not applicable to the Officers of the Corporation, any accumulation or subscription was not to be transferred to the Corporation.
17. An office noting dated 11th September, 2017 indicates that the Corporation had a post of Executive Engineer available and it was categorically noted that there is no need for the Corporation to demand the creation of one post to absorb the Petitioner. The said office noting is at page no.168 of the Petition paper-book.
18. We find that the Corporation has taken a diagonally opposite stand with regard to the Petitioner’s absorption, two years after his superannuation, on 30th June, 2017. The stand espoused in the affidavit in reply dated 5th March, 2019, more particularly, in the paragraphs adverted to in the foregoing analysis, cannot be countenanced. In fact, such a stand would jeopardize the interest of the Petitioner to the extent of his right to seek benefits of the Old Pension Scheme, which right was crystalized by the conditions imposed by the Corporation, as pre-conditions for absorbing his entire service since 1983.
19. On the date of his superannuation, the fact situation as it emerges from the record, would indicate that his right to pension had crystallized. Purported wisdom that dawned too late in 2019, cannot neutralize the right vested in the Petitioner in view of the facts and circumstances leading to his absorption and his eventual superannuation. Had the Corporation specifically refused to grant the pension benefit to the Petitioner before formalising the decision of absorption, the Petitioner would not have agreed to travel to the Corporation. He had no reason to seek absorption with the Corporation if the latter was to decline pensionary benefits to him. Since the Corporation agreed to absorb the services of the Petitioner right from 1983 on fulfilling certain conditions, which we have considered herein above, he was assured of the pension and hence, he deposited an amount of Rs.33,02,658/- with the Corporation, as a pre-condition for his absorption. He travelled a long distance and superannuated while in service of the Corporation. On the date of his superannuation, the Corporation had already taken a decision to grant him the benefits of the Pension Scheme.
20. It is apparent that the Corporation was advised, two years after the superannuation of the Petitioner, to take a stand that the conditions imposed upon him, should not have been imposed. This was clearly by way of an after thought by taking a stand that the amounts which he was directed to deposit and which eventually were deposited, should not have been deposited. In order to obscure or camouflage the rights of the Petitioner, the Commissioner issued an order on 18th February, 2019, directing the return of the entire amount deposited by the Petitioner, to him.
21. The Corporation has then taken a stand that after absorption, it paid full salary to the Petitioner without deducting any amount towards the DCPS. This was done because the Commissioner of the Corporation believed that the DCPS may not be applicable to him in the back-drop of the decision to absorb his entire service.
22. The Corporation relies upon a Government Circular dated 12th January, 2007 issued by the Finance Department, by way of a clarification, in relation to the implementation of the DCPS. In paragraph no.2, it is stated that the Old Pension Scheme would apply to a Government servant inducted in service prior to 1st November, 2005 on a pensionable establishment. Those who are subsequently appointed on a new post, on or after 1st November, 2005, would be covered by the DCPS.
23. We are of the view that the Corporation has wrongly placed reliance on this Circular. Nevertheless, the Circular makes it evident that if a person is appointed on a new post on or after 1st November, 2005, he would be covered by the DCPS. Keeping in view the affidavit in reply of the Corporation and the factual position of the Government Circular dated 12th January, 2007, it is clear that the Corporation did not deduct any contribution from the Petitioner’s salary towards the DCPS, since he was entitled for the old pension scheme. His entire service was absorbed by the Corporation and for which he resigned from CIDCO and joined the Corporation on 6th June, 2011 and superannuated on 30th June, 2017. In our view, it is too late for the Corporation to take a diagonally opposite stand when, the Petitioner believed in the decision of the Corporation to absorb his entire service from 1983 and due to which he joined duties by resigning from CIDCO in 2011.
24. In view of the above, we find that neither the State is opposing the claim of the Petitioner for benefits of the Old Pension Scheme, nor has the Corporation ever taken a decision that the Petitioner would be recruited in its service on a new post. When the Corporation made the Petitioner believe that his entire service would be absorbed and he would be in the pensionable service, we find that there cannot be an argument against the absorption of the Petitioner along with his entire service from 1983. With this fact situation, it would be unsustainable to canvass that his service would be deemed to be a fresh employment after 1st November,
2005.
25. In the rejoinder affidavit tendered by the Petitioner, dated 26th March, 2019, he categorically stated that though the Corporation wanted him to receive the cheques of the entire amounts that he had deposited with the Corporation as a pre-condition for being absorbed with his service, he declined to take the money and the said money is still with the Corporation. The Deputy Commissioner of the Municipal Corporation has also filed a reply to the rejoinder dated 20th May, 2019, stating therein that the Petitioner did not accept the return of the amounts that he had deposited as a pre-condition for being absorbed in employment. Hence, this Writ Petition is allowed in terms of prayer clauses (a) and (b).
26. Needless to state, on issue of delayed payments, except gratuity, we are granting 6% simple interest from the date of retirement of the Petitioner. Insofar as gratuity is concerned, in view of the statutory provision and the order of the Hon’ble Supreme Court in Gagan Bihari Prusty v/s. Paradip Port Trust and Ors.1, we are granting 10% interest. We clarify that the 6% interest would be on the leave encashment and the 10% interest would be on the gratuity, all of which will be paid lump-sum to the Petitioner, within sixty days from today. Insofar as pension payable from July, 2017 onwards, we grant sixty days time to the Corporation to carry out a precise calculation and accordingly make the payment of arrears of the pension from July, 2017 till 30th June, 2025, with simple interest of 6%. Further monthly pension payment, as per the Old Pension
27. Rule is made absolute in the above terms.
28. No order as to costs. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)