Dr. Shakuntala Gupta vs Municipal Corporation Of Delhi And Anr. on 25 May 2004

Delhi High Court
Dr. Shakuntala Gupta vs Municipal Corporation Of Delhi And Anr. on 25 May, 2004
Equivalent citations: 112(2004)DLT797, 2005(3)SLJ65(DELHI)
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner joined service under the MCD as C.A.S. Grade-I (Radiology) on 1.4.1959. She was posted at Victoria Janana Hospital (presently known as Kasturba Hospital). Her services were confirmed on 24.10.1961.

2. On 1.1.1965 all doctors under the MCD were automatically inducted under the Union of India in the Central Health Scheme. It may be noted that initially, these employees were treated on deputation.

3. Duputation, as normally understood, being by consent of the employee, service under a different employer, is not applicable to the present concept of deputation as petitioner proceeded under the Union of India as per policy decision.

4. Petitioner retired from service on 30.6.1980. She retired under the Union of India. Retiral benefits received by the petitioner which was paid by Union of India included the amount lying credited in her General Provident Fund Account. It may be clarified that the amount deducted by the MCD from the salary of the petitioner and credited to her General Provident Fund Account while she was serving under the MCD was remitted to the Union of India together with accrued interest. Petitioner received the same. However, while fixing her pension, petitioner was denied benefit of service rendered under the MCD.

5. Reason for not considering, for purposes of pension, services rendered under the MCD by the petitioner was that during the period 1959-64, no pensionary benefits were available in the MCD.

6. Petitioner made various representations which went unheeded. Present petition was filed in the year 2003. Petitioner is aged 82 years.

7. Case of the petitioner is that MCD introduced its pension scheme subsequent to the petitioner being absorbed under the Union of India when the Central Health Scheme came into force. Had the petitioner continued to serve under the MCD, she would have got benefit of service rendered in its entirety for purposes of computation of her pension. Petitioners states that it was not a case of voluntary transfer and, therefore, respondent No. 2 i.e. Union of India, while determining her pension ought to treat service rendered by petitioner under the MCD as pensionable service. How the respondents inter se worked out the arrangement is not the concern of the petitioner.

8. Respondents opposed the writ petition on grounds of delay and laches. They state that the petitioner superannuated on 30.6.1980. Her pension was fixed. Service rendered by her under the MCD was excluded. Petition filed in the year 2003 was highly belated.

9. On merits, stand of the MCD is that during 1959-1964, no pensionary benefits were available in the MCD and, therefore, service rendered by the petitioner under MCD cannot be treated as qualifying service. Similar is the stand taken by respondent No. 2.

10. Learned Counsel for the MCD relies upon the Office Memorandum dated 29.8.1984 issued by the Government of India duly adopted by the MCD vide Resolution No. 1381 dated 23.3.1987 to support the stand of the MCD.

11. A perusal of the Office Memorandum relied upon would reveal that pertaining to qualifying service for the purpose of pension, inter alia, following is directed:

“xx xx xx

(ii) An employee of an autonomous body on permanent absorption under the Central Government will have the option either to receive CPF benefits which have accrued to him from the autonomous body and start his service afresh in Government or choose to count service rendered in that body as qualifying service for pension in Government by foregoing employer’s share of CPF contributions with interest thereon, which will be paid to the concerned Government department by the autonomous body. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.

xx xx xx”

12. A perusal of the portion extracted above of the Office Memorandum would reveal that on absorption under the Central Government, an employee has a right to forego employer’s share of CPF contribution with interest thereon while opting for pension and have included service rendered in the autonomous body prior to permanent absorption under the Central Government, for purposes of computing qualifying service for pension. Alternatively the employee has to receive the CPF benefits.

13. Admittedly, MCD has not paid to the petitioner any CPF benefits. Admittedly, MCD has not remitted any CPF benefits much less with interest to the Central Government.

14. Learned Counsel for the MCD states that the petitioner had to submit her option.

15. I fail to understand as to how petitioner could submit her option in terms of the Office Memorandum dated 28.10.1984 issued by the Union of India, which was adopted by the MCD on 23.3.1987. Petitioner was inducted in the Central Health Service pursuant to a policy decision in the year 1965. She superannuated from service on 30.6.1980. The Office Memorandum was not even born.

16. Since it is admitted by the MCD that petitioner was not paid any CPF and that petitioner’s contribution to the General Provident Fund was remitted to the Union of India, the inevitable conclusion is that the petitioner is entitled to have service rendered by her under the MCD as being treated as qualifying service for purposes of pension.

17. I may deal with the issue of delay and laches before issuing the final directions. Petitioner is aged 82 years. By what the respondents have done, she has lost nearly 1/4th of her qualifying service. Purpose of pension, which is earned by an employee, is to ensure that he/she spends his/her old age in peace. Denial of complete pension may violate the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India. The Supreme Court, in the decision reported as , S.K. Mustan Bee v. General Manager, South Central Railway and Anr., negated the plea of delay and laches in a case of pension. In such case, pension was claimed by the wife of the deceased railway employee who died in 1969, by way of an application in 1991. Claim was held not to be barred by delay and laches.

18. Even otherwise, delay and laches is invoked by the Court to deny relief because law does not adjudicate on stale claims. Further, third party rights may intervene. In the present case, there is no question of third party rights intervening. Right to pension is a continuing right and in that sense claim for pension would never become stale. It is akin to a continued wrong.

19. Mandamus is accordingly issued to respondent No. 2 to treat as qualifying pensionable service, the service rendered by the petitioner from 1.4.1959 to 31.12.1964 under the MCD. Said respondent would redetermine the pension of the petitioner by treating the said period as qualifying service. Arrears would be paid to the petitioner within 12 weeks from today, failing which same shall be paid with interest at the rate of 6% per annum. Past interest is being denied as the petitioner has approached the Court at a late stage. It would be open to respondent No. 2 to determine the contribution of MCD, which amount would be remitted by MCD to respondent No. 2. However, this inter se accounting between respondents would not hold up the re-computation of pension to the petitioner as per directions aforesaid.

20. Writ petition is allowed as per directions contained in para 19 above. No costs.