Background Facts

The Employee (petitioner) applied for the post of Peon in May 2002. He also applied for the post of Lower Grade Clerk in the year 2005. The written test for the post of Peon was conducted and he was successful. An appointment order was issued in his favour. While discharging duties as Peon, the result of the recruitment process for Lower Grade Clerk was published. He was successful in the same and an appointment order was issued in his favour on 12th March, 2007.

The employee tendered resignation on 14th March 2007, disclosing that he got selected for appointment as Lower Grade Clerk and intended to join the said post. His resignation was accepted. He was relieved from duties with effect from 23rd March 2007. The employee joined the post of Lower Grade Clerk on 27th March 2007. His appointment order clearly mentioned that he would be governed by the New Pension Scheme, 2004.

An Office Memorandum was published by the Government of India. It provided a one-time option to be covered under CCS (Pension) Rules, 1972.

The option was available to Central Government civil employee who were appointed against a post which was advertised for recruitment prior to the date of notification for New Pension Scheme (22/12/2003). Such option was to be exercised by the concerned government servant latest by 31st March, 2023. Therefore, the employee applied for seeking coverage under the old CCS (Pension) Rules, 1972

However, his application was rejected by the authority. The reason was that he resigned from the post of Peon directly without applying for technical resignation. The employee challenged the order of rejection before the Central Administrative Tribunal. However, the Tribunal dismissed his Application. It was held by the Tribunal that the employee failed to intimate the details of his pending application for job in the post of Lower Grade Clerk immediately after joining the post of Peon.

Aggrieved by the same, the Employee filed the writ petition before the Calcutta High Court.

It was submitted by the Employee that the resignation letter clearly disclosed that he got another job and accordingly tendered resignation. It was submitted that he never suppressed his selection in the post of Lower Grade Clerk at the time of submitting his resignation in the post of Peon. It was contended that his resignation was duly accepted by the employer.

Further, the employee relied upon the OM dated 17th August, 2016 which mentioned that resignation is treated as a technical formality where a government servant applied through proper channel for a post in the same or other department and is required to resign from the previous post for administrative reasons.

It was further submitted that he disclosed the reason for resignation at the time of joining the new post, therefore, his resignation should be treated as technical resignation.

On the other hand it was argued by the respondents that the employee should have intimated the details of his prior pending application for the post of Lower Grade Clerk when he joined the post of Peon. The employee failed to disclose such prior application, therefore, he would be governed by the New Pension Scheme and not the old CCS (Pension) Rules, 1972.

It was further submitted that the employee would be bound by all rules and regulations mentioned in his order of appointment. Disclosure of applications for job made prior to joining was obligatory on the part of the employee.

Findings and Observations of the Court

It was observed by the Division Bench that an unemployed youth files several applications simultaneously. Getting a job becomes the primary concern. There is no bar in applying for job in various departments at the same time. One cannot vouch that he will be selected. An unemployed youth accepts the very first job offer where he is selected as the next one is always uncertain.

It was further observed that the employee was lucky enough to be selected in both recruitment processes. At the time of joining as Peon, the employee was never specifically informed that he should have disclosed details of all other applications for job. Further, no document was produced by the respondents to suggest that the appointment order prescribed such requirement.

It was observed that a newly appointed employee is not supposed to know about all orders, circulars, OMs. It there had been such mandatory stipulation, the employer should have brought it to notice. The employee being unaware of such requirements did not disclose.

It was observed by the Bench that if the employee had not been selected for the job of Lower Grade Clerk he would have continued in the post of Peon and in that case, he would have been eligible for the benefit of reverting to the old pension scheme.

It was held by the Division Bench that any Government Order dealing with regular service issues should be widely published. It is an obligation on the employer to bring to the notice of the employee the formalities required to be complied with immediately when he joins service. It was further held that if the appointment order does not mandatorily specify the requirements and the obligations of disclosure, then it has to be taken that the same are directory in nature. It was further held that non-disclosure should not cause any disadvantage to the employee at a later date.

It was held by the Division Bench that OM has been published as a welfare measure for employees who applied against vacancy prior to 22nd December 2003. It was observed that there had not been any mala fide intention on the part of the employee in not disclosing his pending application for the post of Lower Grade Clerk at the time of joining as Peon.

It was further held that Tribunal should have appreciated the beneficial nature of the OM. The Tribunal should not have adopted strict and technical approach for rejecting a welfare scheme meant for the benefit of employees.

The judgment in Shreya Kumari Tirkey vs. The State of Jharkhand was relied upon wherein it was held by the Supreme Court that procedure being a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.

It was further held that in case of interpretation of welfare scheme, both Courts and authorities should take a broad and pragmatic view and not a narrow view so that the welfare object is fulfilled. The entire purpose of the welfare scheme will be frustrated if strict approach is adopted.

With the aforesaid observation, the order of the Tribunal was set aside by the Division Bench. The respondent was directed to reconsider the employee's prayer seeking benefit in terms of OM.

With the aforesaid observations, the writ petition filed by the employee was disposed of by the Division Bench.

Counsel for the Petitioners : Gopala Binnu Kumar, Samson Stephen

Counsel for the Respondent : Rakesh Kumar