Sanjay Kumar Thakur and Ors. v. North Delhi Municipal Corporation of Delhi and Ors.

12. The penultimate paragraph of the Commissioner‟s letter dated 29.7.2005 is lucid and categorical. The letter specifically records that the New Pension Scheme introduced by the Government of India with all procedures, instructions, orders and future amendments issued there under by the Central Government from time to time, would be adopted mutatis mutandis by the Corporation and the employees recruited on or after 1.1.2004. It was specifically clarified that the New Pension Scheme would be applicable as per the Government of India, Ministry of Finance O.M. No.1(13)/EV/2001 dated 13.11.2003. The cut-off date of 31st December, 2003 for applicability of the old pension scheme was dependent upon the date of joining and not on the date when the recruitment process was initiated.

13. Accordingly, the matter was placed before the Standing Committee, who vide their Resolution No.210 dated 10th August, 2005 had resolved to apply the new contributory pension scheme to municipal employees recruited in service on or after 1st January, 2004.

14. The Commissioner of Municipal Corporation vide letter No.F.33/CAcum-FA/1320/C&C dated 10th December, 2007 proposed the procedure for implementation of the New Pension Scheme in the MCD for employees who had been recruited on or after 1.1.2004. In the said letter, the expression used is "joined service on or after 1.1.2004." The contention of the petitioner that the old pension scheme would be applicable to all employees dependent upon the date when the recruitment process was initiated is clearly contrary to the letters of the Commissioner mentioned above.

15. It is pertinent to note that the letter dated 29.7.2005 itself is not under challenge or questioned on the ground of ultra vires either the provisions of the Act or the Regulations. The prayer made in the OA was restricted to setting aside of the order dated 23rd April, 2015 by which the Administrative Officer (Health) of the North Delhi Municipal Corporation had informed the petitioners that they would be covered by the new pension scheme as they had joined municipal service on or after 1st January, 2004 and were not eligible for benefits under the old pension scheme.

16. The second prayer in the OA was to direct the respondents to give pension to the petitioners under the old pension scheme as was done in the case of other employees. The OA referred to office order dated 1st June, 2010 and 10th August, 2011 by which benefit of old pension scheme was granted to Dr. Alka Chandra, Specialist (Grade-II), Anaesthesia and Dr. Rachna Rustgi Gupta, GDMO-II. These letters accept their representations to be governed by the old pension scheme. In these cases, benefit of old pension scheme was allowed after noticing that the candidates from the same batch including those junior had joined before 31st December, 2003 and had been admitted to the old pension scheme. These cases, therefore, would fall in a separate category, for some of the candidates of the same batch, including those who were junior, were appointed earlier in point of time and were covered by the old pension scheme and, therefore, directions were given to cover the other candidates who had joined after 1st January, 2004 under the old pension scheme. We are not determining and commenting upon the merits of the said orders, for that is not the subject matter before us. In the present case, all appointments as Laboratory Assistants were made between July, 2004 and October, 2004. It is not a case wherein some candidates or juniors were appointed as Laboratory Assistant on or before 31st December, 2003 and were accordingly entitled to benefit under the old pension scheme.

17. Reliance placed by the counsel for the petitioners on the decision of the Principal Bench of the Central Administrative Tribunal in OA No.1869/2011, Rabinder Kumar Pattanayak Vs. Union of India & Ors., dated 11th December, 2013 is misconceived and is distinguishable on facts. In the said case, selection to the post of Assistant Legislative Council advertised by the Union Public Service Commission vide advertisement No.14/2002 became subject matter of challenge before the Tribunal and then before the High Court in a writ petition. This had resulted in delay in issue of appointment letters to some of the candidates, who were ultimately declared successful and were offered appointments. Applying the maxim and the dictum that the Court shall not prejudice anyone, relief was granted by extending benefit of the old pension rules noticing that provisional appointment had been granted from the date of appointment of junior. Direction was given that the candidate should be treated at par with his batch mates for all consequential purposes except back wages. In the present case, we do not have anyone from the same recruitment process or a junior joining the post of Laboratory Assistant prior to 1st January, 2004. No one has been given benefit of the old pension scheme.

18. We are not inclined to accept the reasoning of the Central Administrative Tribunal, Ernakulam Bench in the decision dated 28.06.2013 in OA No. 724/2012, P. Rajesh Kumar and Ors. Vs. The Union of India & Ors., which records that benefit of the old pension scheme would be available to the applicants therein for the reason that the vacancies had arisen and related to the period prior to 1st January, 2004. The ratio and reasoning is unacceptable in view of the prescribed cut-off date of 1.1.2004, with reference to the date of joining and not the date of vacancies. The aforesaid criterion, i.e. the date of joining, is not arbitrary or whimsical but is with salutary and good reason. Courts cannot substitute the said criterion with another criterion as has been done by the Tribunal in the case of P. Rajesh Kumar (supra), wherein the date of vacancy, it has been observed, would be the fair and just criterion. This is impermissible and cannot be accepted. The courts or judicial forums cannot legislate and substitute dates. It is well-settled that the courts do not interfere with cut-off date as these are matters of discretion and within the domain of the Executive or the Legislature. The power to specify a date from which terminal or pensionary benefits, as the case may be, shall take effect is concomitant of the power of the State or Corporation to change the conditions of service unilaterally. So long as the date specified is reasonable and not wayward with reference to the requirement of fixing a point of time etc., no interference by the Court is called for. (See State of West Bengal & Ors. Vs. Ratan Behari Dey & Ors. (1993) 4 SCC 62). When classification is permissible, choice of date being a basis of classification, the date so fixed cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the given circumstances. When a line or point is to be fixed and there is no mathematical formula or logical way to fix the same precisely, the decision of the Legislature or its delegate must be accepted unless it can be said that the date or point so fixed is widely of the reasonable mark. (See Union of India Vs. Parameswaran Matchworks (1975) 1 SCC 305 and A. Manjula Bhashini Vs. A.P. Women's Coop Finance Corpn. Ltd. (2009) 8 SCC 431). Whenever a law is enacted or an amendment is made, the same has to be with effect from a particular date. When it is otherwise permissible and legitimate to fix a date, the date so fixed is open to scrutiny on the limited grounds of whimsicality and capriciousness. If the choice made is burdensome to those to whom the wrong done is sought to be rectified, it would be open to the Court to examine the choice of date and find out whether it has resulted in any discrimination. (See B. Prabhakar Rao Vs. State of A.P, (1985) Supp SCC 432). Further, it is a well-settled and accepted principle of law that the name of a candidate appearing on a select list would not give him an indefeasible right to appointment and it would be open to the Government to not fill up the vacancies. The Government cannot be compelled to fill up vacancies where the decision not to do so is sound and rational, especially in the case of direct recruits. (See Neelima Shangla Vs. State of Haryana (1986) 4 SCC 268), Manoj Manu vs. UOI (2013) 12 SCC 171, Kulwinder Pal Singh Vs. State of Punjab (2016) 6 SCC 532). Thus, we would hold that there can be a gap between the date of vacancy, selection and appointment. On some occasions, appointments may not be made at all or may be made after a long delay.

19. Reliance placed on the judgment of the Supreme Court in Marripati Nagaraja and Ors. Vs. Government of Andhra Pradesh and Ors., (2007) 11 SCC 522 is misplaced. The said case related to recruitment to 34 posts of Assistant Director of Agriculture in the Andhra Pradesh Agricultural Service pursuant to the notification issued on 1.10.1992. Subsequently, there was an amendment in the recruitment rules and Rule 22-A providing for reservation for women was substituted. On interpreting the said Rule, the Supreme Court observed that the women candidates were entitled to preference and the percentage of reservation was increased from 30 to 33.33 per cent. The Supreme Court held that though the notification amending the rule had been given retrospective effect, no existing right of any person was taken away by issue of the said notification. Referring to Article 309 of the Constitution, it was observed that the Government is entitled to make rules with retrospective effect and retroactive operation. However, in the absence of any rule being given a retrospective effect by an express provision or stipulation, the rules prevailing on the date of notification were to be applied. Going by the dictum, in the present case, the new pension scheme has been made applicable to all those who had joined on or after 1st January,

2004. Significantly, it was held that whether or not a rule was to be given retrospective effect is within the domain of the State and unless the rule was set aside, it would not be unconstitutional.

20. The third prayer made by the petitioner in the OA was that rules/amendments/instructions were not in consonance with the Article 14 of the Constitution. The challenge, it appears, is to the entire new pension scheme, but the said challenge has been made without any basis or foundation. Even before us, no such attempt was made to challenge the very basis of the new pension scheme. For the reasons stated in paragraph 18 above, the challenge to the date of joining as the determining criteria, and 1.1.2004 as the cut-off date must be rejected.

21. The impugned order of the Tribunal follows the Division Bench judgment of this court in Shailender Kumar and Ors. vs. Delhi High Court (Through Registrar General) and Anr.; (2012) 189 DLT 524. The said case related to appointment of petitioners who were unable to join the post of Lower Division Clerk by 31.12.2003, though they were offered appointment by letters dated 15.9.2003, 15.11.2003 and 12.12.2003, and the said offer of appointment was accepted. An identical plea was raised. Pertinently, the contention in the said case was on a better footing as letters of offer were issued pre 31.12.2003 but actual date of joining was post 31.12.2003. Rejecting the plea of the petitioners therein, it was held as under:-

22. The Division Bench of this court in Shailender Kumar and Ors (supra) distinguished the decision in W.P. (C) No.5983/2010 titled Government of NCT of Delhi & Anr. vs. Dr. Pawan Kumar N. Mali & Ors. dated 3.2.2011. Notably, in Dr. Pawan Kumar N. Mali (supra) case, the doctors in question were selected by UPSC in October, 2002 and 3 out of 13 selected officers had joined on 20.1.2003. The remaining 10 doctors had undergone the medical examination, but they could not be given placement on account of the interim order passed in the writ petition filed by the doctors who were appointed on contractual basis seeking their regularization. It was held that the status quo order in respect of the doctors on contractual basis which was subsequently vacated and the writ petition was dismissed, would not prejudice the respondents. This case carves, and relates to, an exception to the general rule.

23. In the present case, the delay in issue of appointment letters was not malafide or intentional. The results were declared and thereafter the dossiers of selected candidates were sent by the DSSSB on 06.12.2003. The files had to be processed and by the time the appointment letters were issued, the New Pension Scheme enforceable with effect from 1.1.2004 had become applicable. Thus, the decision of the Division Bench in the case of Shailendra Kumar (supra) would be squarely applicable.

24. In the light of the aforesaid discussion, we do not find any merit in the present writ petition and the same is dismissed affirming and upholding the order passed by the Tribunal. There would be no order as to costs.

SUNITA GUPTA, J. SANJIV KHANNA, J. DECEMBER 01, 2016 ‘AA’