Pension rights are deemed property under constitutional law, thus cannot be arbitrarily denied or withheld.

ORDER

By Hon’ble Mr. Manish Garg, Member (J):

In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks the following reliefs:-

“(i) That the Hon'ble Tribunal may graciously be pleased to pass of an order declaring to the effect that action of the respondents not considering and not finalizing the case of the applicant for placing him in old pension scheme is illegal, arbitrary and against the rules and consequently, pass an order directing the respondents to place the applicant in old pension scheme under Rly. Servant (Pension)Rules, 1993 after counting 50% of casual service of the applicant with all the consequential benefits.

(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the to treat the applicant regularly appointed from 1998 at par with his junior as per the undertaking given by the respondents before the Hon'ble Tribunal on 21.3.2005 in C.P.No. 366/2004 in OA No. 420/2003 with all the consequential benefits.

(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.”

2. Brief facts of the case as narrated by learned counsel for the applicant are as under:-

2.1 The applicant, who was initially appointed as casual labour on 15.07.1981, was disengaged on 14.12.1981. As per the Indian Railway Establishment Manual (IREM), the applicant's name was placed under the live casual labour register for further re-engagement based on seniority.

2.2 Thereafter, after a series of events, including a court judgment and contempt petition, the applicant was re-engaged as Substitute Gangman on 08.09.2005 and regularized accordingly. However, despite assurances, he was not extended the benefit of the old pension scheme. In 2020, the applicant discovered that some of his juniors had been placed in the old pension scheme, while he was placed in the new pension scheme. The applicant came to know about the Railway Board's circular no. 28/2020, which allowed employees to opt for the old pension scheme if their selection for appointment was finalized before 01.01.2004 but joined on or after 01.01.2004. Therefore, he submitted his request for granting him old pension scheme on 30.05.2020 but till date no final decision has been taken in the case of the applicant.

2.3 Learned counsel for the applicant argued that as per the rules and guidelines issued by the Supreme Court in Union of India and others Versus Rakesh Kumar and others (Civil Appeal No. 3938 of 2017), the applicant is entitled to reckon fifty percent of his casual service for pension purposes. Therefore, the applicant had already rendered the qualifying service for pension in 1981 and is entitled to be placed in the old pension scheme. Accordingly, the learned counsel for the applicant had prayed for a direction to the respondents to extend the applicant the benefit of the old pension scheme.

3. Per contra, learned counsel for the respondents denied the grounds stated by learned counsel for the applicant and reiterated the averments made in the counter affidavit. He argued that the applicant was engaged as a daily basis employee, and his period of working is mentioned in the letter dated 14.12.1981. Learned counsel denied that the applicant's name was placed under the live casual labour register for further re-engagement based on seniority.

3.1 Learned counsel for the respondents further submitted that the applicant was appointed as Gangman on 08.09.2005, after screening by the competent authority, as directed by this Tribunal in OA No. 420/2003. He was eligible for the New Pension Scheme (NPS) only and is not covered under the scheme of switching ove