IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.01.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Writ Appeal No.1108 of 2007 1. Government of India, represented by its Secretary, Ministry of Social Justice & Empowerment, Room No.604, 'A' Wing, Shastri Bhavan, New Delhi 110 001. 2. The Joint Secretary and Chairman, District Rehabilitation Centre Scheme, Ministry of Social Justice & Empowerment, Room No.611, 'A' Wing, Shastri Bhavan, New Delhi 110 001. 3. The Project Director, District Rehabilitation Centre Scheme, Central Administrative & Co-ordination Unit, 4 Vishnu Digamber Marg, New Delhi. Appellants vs. Nirmala Venkateswaran Respondent Appeal against the order of the learned single Judge dated 15.11.2006 in writ petition No.21935 of 2002 petition presented under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents to pay pension and gratuity to petitioner as is given to the employees of the Institute for Physically Handicapped under the Ministry of Social Justice and Empowerment, Government of India with exemplary cost and penal interest of 18%. For appellants : Mr.S.Udayakumar, SCGSC For respondent : Ms.R.Vaigai https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The correctness of the order of the learned single Judge dated 15.11.2006 made in writ petition No.21935 of 2002 has been assailed by the Government of India and the other statutory appellants in this appeal. By the impugned order, the learned single Judge directed the appellants herein to settle the pension to the respondent herein, as provided under the Rules and the by-law 6(vii) of the Institute of Physically Handicapped, with interest at 9% per annum. The learned single Judge further directed the appellant to pay the amount within 30 days from the date of receipt of a copy of that order. The respondent was directed to pay back the appellant the amount of Rs.2,79,472/- which the respondent/writ petitioner received towards contributory provident fund soon after the respondent/writ petitioner receives the pension amount. 2. The facts of the case proceed as follows : The respondent-writ petitioner was appointed by order dated 18.03.1985 as Assistant Professor in Occupational and Physiotherapy in the scale of pay of Rs.1100-50-1600 plus usual allowances as admissible under the Rules in force in the District Rehabilitation Centre Scheme (DRCS) from time to time with effect from 28.02.1985 by the Director of Institute of physically handicapped (DRCS), New Delhi. The terms and conditions of appointment furnished to her which is referred to in the order of appointment provided that in addition to the scale of pay fixed as stated above, the respondent was entitled to dearness allowance/additional dearness allowance/interim relief, house rent allowance, and city compensatory allowance as admissible to the employees of the Central Government. 3. The proceedings of the Project Director, DRCS (Central Administrative Co-operative Unit), dated 04.07.1986 stated that the rules and regulations, as contained in the bye-laws of the Institute of Physically Handicapped, applicable to the employees of the Institute, as amended from time to time, would apply mutatis mutandis to the employees directly recruited in the Central Administrative Co- operative Unit (CACU)/RRTCs. It was further made clear by the said proceedings that in respect of service conditions not covered by the bye-laws of the Institute of Physically Handicapped, the Central Government Rules and Regulations would apply to the employees of RRTC/CACU as are applicable to IPH employees. 4. Clause 6(vii) of the bye-laws provided that the employees of the Institute shall be eligible for pensionary benefit, GPF and gratuity as per the Central Government Rules. The CPF scheme would continue for the employees, existing on the date coming into force of bye-laws, i.e., 2nd May, 1988 in the IPH, who do not opt for GPF scheme and opt to continue under CPF scheme. https://hcservices.ecourts.gov.in/hcservices/ 5. The respondent was subscribing to CPF since 1985. Since the employees of the RRC were not informed of the pension scheme introduced in the IPH, nor asked any option in that regard, on the respondent coming to know about the amendment to the bye-laws of IPH, she opted for pension by her letter dated 01.05.1988. There were series of requests made by her to almost all authorities for grant of pension. Though certain replies were received by her to the effect that her request was being considered in accordance with the Rules, nothing fructified. Hence, she filed the writ petition with the prayer as stated above. 6. Before the learned single Judge, the appellants herein neither filed a counter nor made any submissions by making appearance. The learned single Judge, with particular reference to clause (vii) of bye-law 6 of IPH and the notification through which the respondent was appointed, concluded that the post of the respondent would carry the Central Government pay scale and allowances and has granted the prayer as stated supra. That order of the learned single Judge is challenged in this appeal. 7. Along with this appeal, the appellants have filed an application praying to stay all further proceedings of the order of the learned single Judge. In the affidavit filed in support of the application, the appellant has taken a stand that the respondent was the employee of RRTC, Chennai recruited by the Project Director of DRCS in the pay scale of the Central Government. The Central Government stopped funding to the DRC projects with effect from 01.04.2006. The applicability of the Government Rules to the project employees was for the administrative convenience so as to regulate the services and conduct of the employees during the project tenure. The respondent had not been recruited under the same terms as applicable to the Central Government employees. The applicability of the bye- laws mutatis mutandis to the directly recruited employees of CACU/RRTC would only mean the applicability of the same with suitable modification. 8.The appellant placed the judgment of the Supreme Court in the case of District Rehabilitation Officer v.Jay Kishore Maity, Civil Appeal No.7999 of 1999 dated 10.11.2006 to support his case. 9. We heard the learned counsel on either side and perused the materials available on record. 10. We are not able to accept the argument of the learned counsel for the appellants. It is an undisputed case that IPH caused a publication in the newspaper (Indian Express dated 28.11.1984) in which it invited application for 8 posts. One among them was the post of Assistant Professor in Occupational and Physiotherapy. The number of posts for which the applications were called for was 4. The scale of pay was Rs.1100-50-1600/-. The qualifying age was 'not more than 45 years'. Qualifications and experience have been prescribed as 3 years https://hcservices.ecourts.gov.in/hcservices/ degree/diploma in occupational/physiotherapy with atleast 10 years of teaching/clinical experience. The publication further stated that the selected applicant would be required to serve in any of the training institute for the disabled under the Government at New Delhi, Bombay, Madras, Lucknow, Cuttack and Calcutta. All posts carry central Government pay scale and allowances. It further stated that the posts are senior level trainee posts. Each trainee team would be required to train physicians, therapists, audiologists, vocational counsellors, orthotic and prosthetic technicians and multi purpose rehabilitation workers, etc., in DRC. In the publication there is no reference to the fact that the posts are either temporary in nature or for a specified period or under any scheme. 11. By the Official memorandum dated 30.01.1985/01.02.1985 after referring to the earlier letter of the Joint Secretary dated 29.01.1985, the terms and conditions of the respondent's appointment had been given. In clauses (ii), (iii) and (iv) it has been clearly stated that dearness allowance/additional dearness allowance/interim relief, house rent allowance, city compensatory allowance would be admissible at the rate at which it was allowed to the employees of the Central Government. The office order dated 18.03.1985 also referred to the order No.15-6/84-HW-III dated 1st February, 1985. 12. From the above it is clear that the respondent has been appointed in the IPH with the terms and conditions of appointment as stated therein and that she was entitled to all the benefits which are available to the Central Government employees. Further, the proceedings dated 04.07.1986 in Reference No.1-1 (8) 85 – MSW – ORC – 542 (1) makes it clear that the rules and regulations contained in the bye-laws applicable to the employees of IPH, New Delhi would apply mutatis mutandis to the employees directly recruited in CACU/RRTCs and the applicability of CCS (Contributory Provident Fund) Rules was also stated therein. It is an admitted case that since 1985 the respondent has contributed to CPF scheme. 13. The bye-laws for administration and management of IPH framed by virtue of the power conferred by Rule 10.5 of the Rules and Regulations of IPH provides for pension benefits as follows : 6. General Service Conditions of the employees : (vii) Pension and G.P.F. "The employees of the Institute shall be eligible to pensionary benefits and GPF and gratuity as per the Central Government Rules. On completion of one year of service, the employee will be eligible for admission to the Institute's GPF scheme. The present CPF scheme will continue for the employees, existing on the date these bye-laws are made effective, i.e., 2nd May, 1988 in the IPH, who do not opt for GPF scheme and opt to continue under CPF scheme." https://hcservices.ecourts.gov.in/hcservices/ 14. Thus, it is clear that the respondent is entitled to the pensionary benefit as she opted for the same by her letter dated 01.05.1988. As already stated from 01.05.1988 onwards, the respondent was repeatedly making representations – 08.06.1988, 08.09.1998, 14.10.1998, 14.01.1999, 08.02.1999, 22.03.1999, 23.04.1999, 26.04.1999 and 06.05.1999. However, by letter dated 20.12.1999 the Project Director informed the respondent that the action towards approval of her pension and gratuity was being taken up with the Ministry. The said letter was followed by another letter dated 10/15.02.2000 stating that the respondent was entitled to receive final payment of balance lying in her CPF account and if she desires she could draw the final payment. As regards the pensionary benefit, it was reiterated that the Ministry was in the final stage of taking action. From the above it is clear that the respondent is entitled to pension and all through, it is not the case of the appellants that the respondent is not entitled to pension. 15. Learned counsel for the appellant though placed the decision of the Supreme Court in District Rehabilitation Officer v. Jay Kishore Maity, Civil Appeal No.7999 of 1999 dated 10.11.2006 in the typed set of papers, has not made any submission relying on the judgment. The core question before the Supreme Court in that case was whether the employees selected for the Rehabilitation Centre at the West Bengal and Karnataka by the Project Co-ordinator of the Rehabilitation Centre, who were the officials of the State Government of West Bengal and Karnataka could be regarded as employees of the Central Government so as to invoke the jurisdiction of the Central Administrative Tribunal. The apex Court re-stated the test determinative for ascertaining the relationship of 'employer-employee' viz., functional test or control test or organisational test, etc., and after referring to the earlier decisions of the Supreme Court in the cases of Workmen of Nilgiri Co-op. Market Society v. State of Tamil nadu 2004-3-SCC 51f, Haldia Refineries Canteen Employees Union v. IOC 2005(5) SCC 51, and State of Karnataka v. KGSD employees Welfare Association, 2006-1- SCC 567, ultimately observed that it was not in agreement with the finding of the CAT. 16. Here in this case, as stated supra, the advertisement was caused by IPH, Department of Ministry of Social Welfare, wherein it was categorically stated that the posts carry central Government pay scale and allowances and the terms and conditions of appointment dated 30.01.1985/1.2.1985 also indicated that all allowances as that of the employees of the Central Government would be applicable to the respondent. Hence, the judgment of the Supreme Court is not applicable to the facts of the present case. 17. At the time of hearing, it was brought to the notice of the Court that a sum of Rs.2,79,472/ has already been paid over to the respondent towards her contribution to CPF. Out of the said amount, the respondent's share was only Rs.1,38,377/- Now that we have come to the conclusion that the respondent is entitled to the pensionary https://hcservices.ecourts.gov.in/hcservices/ benefit, the order of the learned single Judge directing the respondent to repay the contributory provident fund paid over to her after receipt of the pension is modified to the effect that the appellants are directed to adjust the proportionate amount while making the pensionary payment. 18. As there was a genuine dispute regarding the applicability of the pensionary benefit to the respondent, we are of the view that the direction of the learned single Judge directing the appellant to pay interest at the rate of 9% per annum is to be modified to the effect that the belated payment of pension would carry 50% of statutory interest, if any, payable by the appellant. 19. With this modification, the writ appeal is dismissed. No costs. The connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mf To 1. Government of India, represented by its Secretary, Ministry of Social Justice & Empowerment, Room No.604, 'A' Wing, Shastri Bhavan, New Delhi 110 001. 2. The Joint Secretary and Chairman, District Rehabilitation Centre Scheme, Ministry of Social Justice & Empowerment, Room No.611, 'A' Wing, Shastri Bhavan, New Delhi 110 001. 3. The Project Director, District Rehabilitation Centre Scheme, Central Administrative & Co-ordination Unit, 4 Vishnu Digamber Marg, New Delhi. 1 cc To Ms.R.Vaigai, Advocate, SR.2406. 1 cc To Mr.S.Udayakumar, Advocate, SR.2113. Writ Appeal No.1108 of 2007 MDR(CO) RVL 19.02.2008 https://hcservices.ecourts.gov.in/hcservices/