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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Shalinder Kaur, JJ.
Mahanagar Telephone Nigam Ltd. & Anr. - Appellants
Versus
Balbir Gulia - Respondent
W.P.(C) 4447 of 2013
Decided On : 03-01-2024
Pay Protection - Absorption of Employee - CCS (Pension) Rules, 1972 - Rule 26(2), DOP&T OM dated 17.08.2016 - [CCS (Pension) Rules, 1972, DOP&T OM dated 17.08.2016] - The court discussed the entitlement of pay protection and counting of past service of the respondent from CISF to MTNL. The court held that the respondent's claim was not time-barred and that the petitioners were obligated to count the past service of the respondent and provide pay protection as per the terms of his appointment.
Fact of the Case:
The respondent, a former employee of CISF, sought counting of his past service and pay protection after being absorbed by MTNL. The petitioners rejected his request, leading to the respondent filing an application before the Administrative Tribunal, which ruled in his favor. The petitioners challenged this ruling in a writ petition.
Finding of the Court:
The court found that the respondent's claim was not time-barred and that he was entitled to pay protection and counting of past service from CISF to MTNL. The court emphasized that the respondent's appointment was on 'absorption basis' and his past service should have been counted. The court directed the petitioners to implement the pay protection and counting of past service within a specified timeframe.
Issues: The issues before the court included the timeliness of the respondent's claim, entitlement to pay protection, and counting of past service from CISF to MTNL.
Ratio Decidendi: The court applied the legal principles of 'continuing wrong' and 'recurring cause of action' to determine that the respondent's claim was not time-barred. It emphasized that the respondent's appointment was on 'absorption basis' and his past service should have been counted, leading to the court's decision in favor of the respondent.
Final Decision: The court disposed of the writ petition and directed the petitioners to implement pay protection and counting of past service within a specified timeframe, emphasizing that the respondent was entitled to these benefits.
JUDGMENT
Shalinder Kaur, J. - Challenging the order dated 12.03.2013 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'Tribunal') in Original Application No. 2455/2012 (hereinafter referred as 'OA'), the present writ petition has been filed under Article 226 of the Constitution of India. The learned Tribunal allowed the OA of the respondent for counting his past service rendered in Central Industrial Security Force (hereinafter referred as 'CISF').
2. To the extent necessary, we shall narrate the facts that the respondent joined CISF in the rank of Assistant Sub-Inspector (Sports) with effect from 01.10.1993 and continued to work till 20.05.2000. Petitioner No. 1 opted Wrestling as one of the core games and required a Wrestling Coach for its organization. To that effect, the Regional Sports & Cultural Board (hereinafter referred as 'RSCB') vide its letter dated 07.05.1999, inquired from CISF whether they would spare respondent's services, if he desired to join them on 'absorption basis' as he was found to be qualified/competent as a NIS Coach.
3. Thereafter, CISF vide letter dated 18.05.1999 informed General Manager (Admn.), RSCB of its no objection in allowing the respondent to join the service of petitioner no. 1 after his technical resignation from the CISF on immediate 'absorption basis'. In the meanwhile, petitioner no. 1 also issued a common letter dated 25.02.2000 to Director General Sports, Sports Authority of India, New Delhi, Director General (CISF) and Director General (BSF) requesting them to provide names of competent/qualified NIS Coach in Wrestling on 'absorption basis' in the pay scale of Rs. 40006000. CISF permitted the respondent to appear for an interview with petitioner no.1 on 06.03.2000 to consider him for absorption as a Wrestling Coach with them. The respondent was selected for the post of Wrestling Coach under the petitioners on adhoc basis in the IDA Scale of Rs. 2780-803420-90-4500 with usual allowances as applicable to petitioners' employees from time to time subject to the Pay Protection on certain terms and conditions. Petitioners had issued Offer of Appointment dated 01.05.2000 to the respondent and he accepted their terms and conditions as mentioned in the letter; which are provided as under:-
'(a) Respondent will not hold any lien in the CISF cadre and will severe all connections with the post held by him there before joining as Wrestling Coach.
(b) Further, that he will be required to extinguish all financial liabilities due from him before taking over his new assignment and Petitioner will not bear any kind of liability whatsoever.'
4. Respondent thereafter, tendered his technical resignation to CISF on 08.05.2000 and reported for duty as Wrestling Coach on 22.05.2000 and was posted under Secretary Regional Sports & Cultural Board (RSCB), MTNL.
5. CISF further issued a letter dated 14.05.2000 to all concerned that since respondent had applied through proper channel for the post of Wrestling Coach with petitioners with proper permission and he resigned from the service of CISF w.e.f. 19.05.2000 (AN) as a technical formality to join petitioners, he will be entitled for all the benefits under Rule 26(2) of CCS (Pension) Rules, 1972, which is reproduced below:-
'26. Forfeiture of Service on resignation
(1) ..
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.'
6. Around 8 years after joining services under the petitioners, the respondent submitted a representation dated 09.04.2008 to petitioner no.1 and requested for counting of his past services under the CISF. Further, at the time of his absorption, he was given to understand that his whole past service will be counted for all purposes and conversion to IDA scale from CDA scale will be given at par with the Department of Teleco
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