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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Dr. Ravindra Narayan Mishra – Appellant
Versus
Sri Guru Tegh Bahadur Khalsa College & Ors. – Respondents
W.P.(C) 2060 of 2019, W.P.(C) 9832 of 2018 & W.P.(C) 7007 of 2015
Decided On : 19-05-2023
PENSION - OLD PENSION SCHEME (OPS) - NEW PENSION SCHEME (NPS) - COVERAGE - TEMPORARY/AD-HOC APPOINTMENT - REGULARISATION - QUALIFYING SERVICE - INTERPRETATION OF STATUTE 28-A OF DELHI UNIVERSITY ORDINANCE AND RULE 13 OF CENTRAL CIVIL SERVICES (PENSION) RULES, 1972 - APPLICABILITY OF NPS TO NEW ENTRANTS - EMPLOYEES APPOINTED PRIOR TO 01.01.2004 - CONTINUOUS SERVICE - REGULARISATION/ABSORPTION - COUNTING OF TEMPORARY SERVICE FOR PENSIONARY BENEFITS - DISTINCTION BETWEEN TEMPORARY AND PERMANENT EMPLOYEES - ELIGIBILITY FOR PENSION - JUDICIAL PRECEDENTS.
Fact of the Case:
Petitioners, appointed as temporary lecturers in various colleges of Delhi University prior to 01.01.2004, were subsequently regularized/absorbed as permanent employees post 01.01.2004. During their temporary service, GPF was deducted from their salaries, and they were treated as covered under OPS. However, post-regularization, the University sought to bring them under NPS, contending that they were new entrants appointed after the cut-off date of 01.01.2004. Petitioners challenged this decision, arguing that their temporary service prior to 01.01.2004 should be counted towards qualifying service for pension, and they should be covered under OPS.
Finding of the Court:
The Court held that Petitioners were not covered under the expression "new entrants" envisaged under NPS, and their entire past service could not be wiped out to deprive them of pension under OPS. The Court relied on several judgments, including Dalip Kumar v. Union of India, K. Punniyakoti v. Union of India, and Dr. Neelam Aggarwal v. Union of India, which held that if an employee enters service prior to 01.01.2004, in whatever capacity, and renders continuous and uninterrupted service, followed by regularisation/absorption, the period of service shall count towards qualifying service for pension. The Court also noted that Statute 28A of Delhi University Ordinance and Rule 13 of the Central Civil Services (Pension) Rules, 1972, provide that temporary service followed by substantive appointment shall count as qualifying service. The Court further held that NPS can only apply to new entrants post 01.01.2004 and cannot take away the rights of old entrants prior to 01.01.2004.
Issues: 1. Whether Petitioners, appointed as temporary lecturers prior to 01.01.2004 and regularized post 01.01.2004, were covered under OPS or NPS. 2. Whether Petitioners' temporary service prior to 01.01.2004 could be counted towards qualifying service for pension. 3. Interpretation of Statute 28-A of Delhi University Ordinance and Rule 13 of Central Civil Services (Pension) Rules, 1972, in relation to counting of temporary service for pension.
Ratio Decidendi: 1. The expression "new entrants" in NPS applies only to those appointed for the first time as casual/temporary/permanent employees on or after 01.01.2004. 2. Temporary service rendered prior to 01.01.2004, followed by regularisation/absorption, counts towards qualifying service for pension. 3. Statute 28-A of Delhi University Ordinance and Rule 13 of Central Civil Services (Pension) Rules, 1972, provide that temporary service followed by substantive appointment shall count as qualifying service.
Final Decision: The Court allowed the writ petitions, holding that Petitioners were covered under OPS and not NPS. The Court directed the Respondents to count Petitioners' entire services from the date of initial appointments on temporary basis till the date of regularisation as qualifying service for the purpose of pension.
JUDGMENT
Jyoti Singh, J. Present writ petitions have been filed by the Petitioners seeking directions to the Respondents to retain/cover the Petitioners in the General Provident Fund (`GPF')/Old Pension Scheme (`OPS') and not to treat them as employees covered under the New Pension Scheme (`NPS'). On account of similitude of the legal issues in the three writ petitions, they were heard together and are being decided by this common judgment. The differences in the facts are being adverted to separately hereinafter.
W.P.(C) 2060/2019
2. Petitioner was initially appointed on 21.10.1992 as ad-hoc Lecturer in Khalsa College for two months followed by ad-hoc appointment in Satyawati College between 1994-1995 and again as ad-hoc lecturer in Khalsa College, where he worked from 1995 to 30.04.2003. Pursuant to recommendation of a duly constituted Selection Committee, Petitioner was appointed as Lecturer on 13.03.2003 on temporary basis against the lien vacancy of Dr. (Mrs.) Jitinder Kaur and joined on 16.07.2003. Petitioner rendered continuous service till 27.08.2004 without any interruption.
3. Petitioner was absorbed on permanent basis in the college with effect from 27.08.2004 on the post being vacated by Dr. (Mrs.) Jitinder Kaur, who joined Bhagat Singh College as Principal. In 2007, Petitioner was approved for promotion as a Lecturer in Senior Scale pursuant to Selection Committee's recommendations and on 22.04.2010, Respondent No. 2/Delhi University intimated its approval for fixing Petitioner's pay in Reader's Grade under MPS-1998.
4. Till 2014, Petitioner was treated as an employee under the OPS, however, on 23.06.2014 Respondent No. 2 wrote to the College that GPF number was erroneously granted to the Petitioner and he should be covered under NPS. On 05.08.2014, College requested Respondent No. 2 to reconsider the matter but Respondent No. 2 refused to reverse its decision. Petitioner made a representation to Respondent No. 2 on 22.01.2015, requesting restoration of his status to OPS, but to no avail.
5. Petitioner once again wrote to Respondent No. 2 on 12.07.2017 to retain him in OPS/GPF but the request was turned down vide order dated 26.04.2018 and an Office Memorandum was issued by Respondent No.1 on 15/21.06.2018 advising the Petitioner to open the PRAN under NPS to enable the College to transfer his accumulated contributions to Central Recordkeeping Agency, Mumbai, which led to filing of the present Petition.
W.P.(C) 9832/2018
6. Petitioner was appointed as Lecturer of Computer Science in Acharya Narendra Dev College on 30.10.2000, pursuant to recommendations of duly constituted committee and his appointment was temporary only for the reason he had not cleared NET at the relevant time. Otherwise, the appointment of the Petitioner was on a substantive post and later in 2003, he cleared NET and was also conferred Doctorate by JNU in Computer Science in 2013. On 23.06.2001, Shaheed Sukhdev College of Business Studies/Respondent No. 2 issued an advertisement inviting applications for several posts of lecturers including 5 permanent posts of lecturers in Computer Science. Petitioner was selected by a Selection Committee from amongst several candidates, who had participated in the selection process and he joined on 07.09.2001. Respondent No. 1/University of Delhi accorded its approval vide letter dated 17.04.2002 for fixation of pay of the Petitioner in pay-scale of Rs.8000-13500, retaining previous date of increment falling on 01.11.2001 and the subsequent dates of increments on 1st November each year.
7. On 27.02.2013, Petitioner made representation to the college to place him in OPS as per the University of Delhi Ordinance, Statute 28-A. Representation was considered by the Governing Body of the College on 27.02.2013 and case of the Petitioner was approved, directing the administration to deduct provident fund from the date of his appointment in the College i.e. 07.09.2001. The College addressed a communication dated 25
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