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2019 Supreme(Del) 329
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, PRATEEK JALAN, JJ.
PARA MEDICAL TECHNICAL STAFF WELFARE ASSOCIATION OF MCD AND ANR - Petitioner
Versus
NORTH DELHI MUNICIPAL CORPORATION - Respondent
W.P.(C) 984 of 2019
Decided on : 30-01-2019
Advocate Appeared:
For the Petitioner: Mr. Tarun Sharma with Ms. Akansha Kapoor and Mr. Pradeep Singh, Advs.
For the Respondent: Mr. Gaurang Kanth with Mrs. Biji Rajesh, Mr. Aman, Advs.
The financial burden and policy considerations play a significant role in determining the nature and extent of benefits extended to employees.
Headnote:
PENSION SCHEME - Regularization of Casual Labourers - Old Pension Scheme, New Pension Scheme - OM No. 51016/2/90-Estt (C), OM dated 26th February, 2016, OM dated 26th April, 2004 - Casual Labourers covered under the Scheme of 10.09.1993 entitled to Old Pension Scheme, Financial burden and policy considerations in extending benefits to employees
Fact of the Case:
The petitioner challenged the rejection of their application seeking coverage under the Old Pension Scheme instead of the New Pension Scheme for casual labourers who were regularized.
Finding of the Court:
The court found that the petitioners, although regularized, were not entitled to coverage under the Old Pension Scheme as they were not covered under the scheme of 10.09.1993. The court emphasized the financial burden and policy considerations in extending benefits to employees.
Issues: The issue was whether the casual labourers, including the petitioner, were entitled to be covered under the Old Pension Scheme or the New Pension Scheme upon regularization.
Ratio Decidendi: The court held that the petitioners, having been regularized under a scheme different from the one in 1993, were not entitled to further benefits intended for those covered under the 1993 scheme.
Final Decision: The petition was dismissed.
VIPIN SANGHI, J.
C.M. No. 4411/2019
Exemption allowed, subject to all just exceptions. The application stands disposed of.
W.P.(C) 984/2019
1. The petitioner assails the order dated 22.10.2018 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 4311/2017. The Tribunal has rejected the said Original Application preferred by the petitioners wherein the relief sought by them was that they should be treated as covered by the Old Pension Scheme and not by the New Pension Scheme.
2. The petitioner No. 2 – Amit Jain was initially appointed as a casual labourer on 14.12.2001. The petitioner No.1 association espouses the cause of petitioner No. 2 and presses the petition in respect of others similarly situated as petitioner No.2.
3. The services of petitioner No.2 were regularised on 10.10.2008. The regularisation was made effective from 01.04.2006. The issue before the Tribunal was whether such like employees were entitled to be covered under the Old Pension Scheme or New Pension Scheme. There is no dispute that the members of the petitioner association and petitioner No.2 were entitled to be covered by a Pension Scheme, and the only issue was whether the said coverage would be under the Old Pension Scheme or the New Pension Scheme. In this regard, it is relevant to take note of, firstly, the office memorandum dated 26.02.2016 issued by the DoP&T on the subject of casual labourers with temporary status- clarification regarding contribution to GPF and Pension under the Old Pension Scheme. In so far as it is relevant, this office memorandum states as follows:
“1. Undersigned is directed to refer to this Department’s OM No. 51016/2/90-Estt (C) dated the 10th September, 1993 vide which a scheme for grant of temporary status to the casual employees was framed. The scheme applied to those casual labourers who were in employment on the date of the issue of the OM and had rendered one year of continued service in Central Government Offices, which meant that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week). The scheme did not apply to Departments of Telecom & Posts and Ministry of Railways.
2. As per the scheme, after rendering three years’ continuous service after conferment of temporary status, the casual labourers were to be treated at par with temporary Group D employees for the purpose of contribution to the General Provident Fund. Further, after their regularisation, 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits.
6. The position has been reviewed in the light of the Court judgments in consultation with the Department of Expenditure. It has now been decided that the casual labourers who had been granted temporary status under the scheme, and have completed 3 years of continuous service after that, are entitled to contribute to the General Provident Fund.
8. It is emphasised that the benefit of temporary status is available only to those casual labourers who were in employment on the date of the issue of the OM dated 10th September, 1993 and were otherwise eligible for it. No grant of temporary status is permissible after that date. The employees erroneously granted temporary status between 10.09.1993 and the date of Hon’ble Supreme Court judgment in Union of India And Anr. vs. Mohan Pal, 2002(3) SCR 613 delivered on 29 April, 2002, will however be deemed to have been covered under the scheme of 10.09.93.” (emphasis supplied)
4. On 28.07.2016 another office memorandum was issued by the DoP&T on the subject “Casual Labourers with temporary status- clarification regarding contribution of GPF and Pension under the Old Pension Scheme.” This office memorandum, inter alia stated:
“The undersigned is directed to refer to this Department’s OM of even number dated 26th February, 2016 on the above subject and to say that some references have been received in this Department f
