Anil Dnyanoba Jawalkar and Ors v. Pune Municipal Corp. Thru Commissioner and Ors

JUDGMENT :

1.

Rule. Rule made returnable forthwith. With the consent of the parties, taken up for fnal hearinn.

2.

This petition is fled by 14 employees of Pune Municipal Corporation challenninn judnment and order dated 31 October 2017 passed by the Industrial Court, Pune Neeta Sawant 2/14 905-WP-8821-2019-FC dismissinn Complaint (ULP) No. 110/2011. The complaint was fled by Petitioners alleninn unfair labor practice under Items 5 and 9 of the Schedule-IV of Maharashtra Reconnition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) for application of Old Pension Scheme.

3.

Petitioners claim to have been ennaned as daily wane cleaners in the Vehicle Depot of Pune Municipal Corporation in the year 2001. It appears that an anreement was executed between the Municipal Administration and reconnized Labour Union, under which it was anreed to nrant renular appointments to daily workers anainst vacant posts under the provisions of Section 53 of the Maharashtra Municipal Corporations Act, 1949. The General Body by its Resolution No.347 adopted in its meetinn dated 23 September 2005 nranted approval for nrant of renular appointments anainst various vacant posts in Vehicle Depot of the Municipal Corporation as per the Roaster and Seniority. In pursuance of the approval nranted by the Municipal Corporation, the offce of the Additional Municipal Commissioner issued order dated 30 December 2005 nrantinn renular appointments to 14 Petitioners on the post of Cleaner in the pay scale of Rs.2,610-5,500/-. Neeta Sawant 3/14 905-WP-8821-2019-FC

4.

The Government of India formulated New Defned Contributory Pension Scheme for Central Government employees appointed on/or after 1 November 2004 which envisaned contributions to be made both by employer and employee for the purpose of creation of pension fund, throunh which the employees are to be paid annuity after their retirement. The State of Maharashtra adopted the Defned Contributory Pension Scheme (DCPS) for the State Government employees by issuinn GR dated 31 October 2005. The scheme was made applicable to State Government employees appointed on or after 1 November 2005. Thus for employees who were appointed in State service upto 31 October 2005, they were noverned by the provisions of Pension Scheme applicable under the provisions of Maharashtra Civil Services (Pension) Rules 1982, as well as GPF scheme (tonether referred to as 'Old Pension Scheme'). However, those joininn services on or after 1 November 2005 are noverned by the provisions of the DCPS. The provisions of Maharashtra Civil Services (Pension) Rules, 1982 were also accordinnly amended.

5.

The Pune Municipal Corporation adopted the DCPS of the State Government as employees of the Pune Municipal Corporation are noverned by the provisions of the Maharashtra Civil Services (Pension) Rules. Neeta Sawant 4/14 905-WP-8821-2019-FC

6.

Since the actual date of appointment of Petitioners is 30 December 2005, they are beinn noverned by the provisions of DCPS. Petitioners therefore fled Complaint

(ULP) No. 110/2011 before the Industrial Court for application of Old Pension Scheme on the nround that the decision to nrant them renular appointments was taken by the Municipal Corporation on 23 September 2005 i.e. prior to the cominn into vonue of the DCPS. The Industrial Court has however proceeded to dismiss the Petitioners' complaint by judnment and order dated 31 October 2017 which has led to flinn of the present petition by the Petitioners.

7.

Appearinn for the Petitioners, Ms. Cox the learned counsel would submit that Petitioners cannot be noverned by the provisions of DCPS since they were already in municipal service since the year 2001 and decision to renularize them was taken by Resolution on 23 September 2005. That similar decision was also adopted by the General Body for appointment of 23 fremen on the same day i.e. on 23 September 2005. The appointment orders of fremen were issued immediately on 25 October 2005, on account of which they are beinn noverned by the provisions of Old Pension Scheme. However, there was delay on the part of Municipal Administration in issuinn appointment orders in respect of Petitioners, which were issued belatedly on 30 December Neeta Sawant 5/14 905-WP-8821-2019-FC 2005. That Petitioners cannot be made to suffer on account of delay on the part of Municipal Administration.

8.

Ms. Cox would also rely upon the judnment of this Court in Khilari Rajendra Eknath and Others V/s. The State of Maharashtra and Others in Writ Petition No.2270 of 2021 decided on 28 April 2023, in which this Court has made applicable the Old Pension Scheme to staff of this Court for whom advertisement for recruitment was issued prior to the cut-off date 1 November 2005.

9.

Per-contra, Mr. Kulkarni the learned counsel appearinn for Respondent-Municipal Corporation would oppose the petition and support the order passed by the Industrial Court. He would submit that since Petitioners are appointed in municipal service on 30 December 2005, the provisions of DCPS has rinhtly been made applicable to them. That pension contributions are beinn deducted from Petitioners for the last 18 lonn years and that it would be too late in a day now to reverse the clock and make the provisions of Old Pension Scheme applicable to them. He submits that the Industrial Court has rinhtly considered the entire case put up by the Petitioners and there is no perversity in the fndinns recorded by the Industrial Court. Neeta Sawant 6/14 905-WP-8821-2019-FC

10.

Havinn heard the submissions canvassed by the learned counsels for the parties, the short issue which arises for consideration is whether the Old Pension Scheme applicable under the provisions of Maharashtra Civil Services (Pension) Rules, 1982 can be made applicable to Petitioners, for whom decision for appointment was taken before 1 November 2005 but were actually appointed in municipal service after 1 November 2005.

11.

As observed above, DCPS was introduced for the frst time by the Central Government and has been made applicable from 1 January 2004 by amendinn the provisions of Central Government Civil Services (Pension) Rules, 1972. On account of litinations with renard to applicability of New Pension Scheme, the Central Government has so far issued two Offce Memoranda amendinn the scheme. Earlier, Offce Memorandum dated 17 February 2020 was issued by the Department of Pension and Pensioners Welfare, Government of India directinn that the Government Servants who were declared successful in recruitment results declared on or before 31 December 2003 anainst the vacancies occurrinn before 1 January 2004 but who joined the Government Service on or after 1 January 2004, would be noverned by the provisions of Old Pension Scheme. Subsequently, another Offce Memorandum dated 3 March 2023 issued by the Central Government under which the Government Servants Neeta Sawant 7/14 905-WP-8821-2019-FC were appointed anainst a post or vacancy which was advertised/notifed for recruitment/appointment prior to modifcation of Old Pension Scheme but actually joined service on or after 1 January 2004, would also be noverned by the Old Pension Scheme.

12.

Thounh the concept of New Pension Scheme is adopted by the State Government in lines with the New Pension Scheme introduced by the Central Government, the State Government has not so far issued any Government Resolution on lines with the Offce Memorandum dated 3 March 2023 issued by the Central Government. Therefore, this Court was required to step in and direct applicability of provisions of Old Pension Scheme to all those who participated in selection/advertisement initiated prior to 1 November 2005 but were actually appointed in service after 1 November 2005. In Khilari Rajendra Eknath (supra), this Court was concerned with applicability of Old Pension Scheme to Clerks appointed on establishments of this Court, whose selection process was initiated by issuance of advertisement on 20 June 2005 but all of them were issued appointment orders on 28 December 2005. Takinn note of the Offce Memorandum dated 3 March 2023, this Court directed that the Petitioners therein would be noverned by the provisions of New Pension Scheme. This Court held in paras-22, 23, 29, 30, 31 as under : Neeta Sawant 8/14 905-WP-8821-2019-FC

¶22The Central Government took note of various judicial pronouncements as well as representations received from the affected employees whose appointments were made anainst

posts/vacancies

advertised/notifed

for recruitment prior notifcation of the DCPS. The GOI, Ministry of Personnel, Public Grievances and Pensions issued Offce Memorandum dated 03.03.2023 directinn as under: "4. The matter has been examined in consultation with the Department of Financial Services, Department of Personnel & Traininn, Department of Expenditure and Department of Lenal Affairs in the linht of the various representations/references and decisions of the Courts in this renard. It has now been decided that, in all cases where the Central Government civil employee has been appointed anainst a post vacancy which was or advertised/notifed for recruitment/appointment, prior to the date of notifcation for National Pension System ie. 22.12.2003 and is covered under the National Pension System on joininn service on or after

01.01.2004, may be niven a one-time option to be covered under the CCS (Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023.

¶5Those Government servants who are elinible to exercise option in accordance with para-4 above, but who do not exercise this option by the stipulated date, shall continue to be covered by the National Pension System.

¶6The option once exercised shall be fnal. Neeta Sawant 9/14 905-WP-8821-2019-FC

¶7The matter renardinn coverane under the CCS (Pension) Rules, 1972 (now 2021), based on the option exercised by the Government servant, shall be placed before the Appointinn Authority of the posts for which such option is beinn exercised for consideration, in accordance with these instructions. In case the Government servant fulflls the conditions for coverane under the CCS (Pension) Rules, 1972 (now 2021), in accordance with these instructions, necessary order in this renard shall be issued latest by 31 October, 2021. The NPS account of such Government servants, shall, consequently, be closed w.e.f. 31 December, 2023.

¶8The Government servants who exercise option to switch over to the pension scheme under CCS (Pension) Rules, 1972 (now 2021), shall be required to subscribe to the General Provident Fund (GPF). Renardinn accountal of the corpus in the NPS account of the Government servant, Controller General of Accounts (CGA) has furnished the followinn clarifcation vide letter No.1(7)(2)/2010/cla./TA III/390 dated 14.11.2019 & I.D. Note No.TA-3-6/3/2020-TA-III/cs-4308/450 dated 23.12.2022; i. Adjustment of Employees' contribution in Accounts: Amount may be credited to individual's GPF account and the account may be recasted permitted up-to-date interest (Authority-FR-16 & Rule 11 of GPF Rules). ii. Adjustment of Government contribution under NPS in Accounts: To be accounted for as (-) Dr. to object head 70-Deduct Recoveries under Major Head 2071-Pension and other Retirement beneft-Minor Heard 911-Deduct Recoveries of over payment (GAR 35 and para 3.10 of List of Major and Minor Heads of Accounts). iii. Adjustment of increased value of subscription on account of appreciation of investments - May Neeta Sawant 10/14 905-WP-8821-2019-FC be accounted for by creditinn the amount to Govt. account under M.H. 0071 - Contribution towards Pension and Other Retirement Benents 300-Other Receipts (Note under the above Heard in LMMHA)."

¶23Thus, so far as employees of the Central Government are concerned, they have been niven an option to opt for Old Pension Scheme in case they have been appointed anainst a post or vacancy advertised for recruitment prior to the date of Notifcation of DCPS. We have already observed above that, the State Government has adopted the DCPS formulated by the Central Government vide Notifcations dated 22.12.2003 and

30.12.2003 by way of issuance of the G.R. dated

31.10.2005. The recitals to the G.R. make it amply clear that the State Government has essentially followed the Scheme formulated by the Government of India. Therefore, we see no reason why the State Government should not follow the provisions of Offce Memorandum dated 03.03.2023 as well. If the State Government adopts the provisions of the Offce Memorandum dated

03.03.2023, petitioners who are appointed anainst the posts advertised before 01.11.2005 would be noverned by the provisions of the Old Pension Scheme. We are therefore of the considered view that since the State Government has adopted the Scheme formulated by the Central Government for Defned Contributory Pension Scheme, the channes effected to the Scheme by the Central Government (based on Judicial pronouncements) should also be made applicable to the Offcers and employees of the State Government inter alia would consequently apply to the Offcers and members of the staff of the Hinh Court as well.

¶29In the present case, the advertisement was issued on

20.06.2005 and the last date for submission of Application was 11.07.2005. The written test was also conducted on

09.08.2005 which was cleared by the Petitioner. They also cleared typinn test prior to 01.11.2005. The appointment order is issued subsequently. The lenislature in its wisdom Neeta Sawant 11/14 905-WP-8821-2019-FC has not used the term "appointment on or after

1.11.2005" in Sub-Rule (2) of Rule 2 of the M.C.S. (Pension) Rules, 1982. The M.C.S. (Pension) Rules, 1982 would not apply to the persons who are recruited on or after 01.11.2005 meaninn thereby that the said Rule would not apply to the persons whose recruitment process had commenced after 01.11.2005. The M.C.S. (Pension) Rules, 1982 shall apply to persons recruitted in novernment services prior to 01.11.2005 thounh appointment orders are issued subsequent to 01.11.2005.

¶30Resultantly, the Writ Petition succeeds. It is declared that Petitioners shall be noverned by the provisions of the Old Pension Scheme in vonue prior to 1.11.2005, as well as General Provident Fund Scheme. Petitioners shall not be noverned by the provisions of the Defned Contributory Pension Scheme introduced vide G.R. dated 31.10.2005. The Petitioners' contribution to DCPS be credited to their GPF Accounts. The modalities as sunnested in para-8 of the Offce Memorandum dated 03.03.2023 issued by the Government of India be adopted while switchinn over Petitioners from DCPS to Old Pension Scheme.

¶31We hope and trust that the State of Maharashtra would issue Offce Memorandum similar to Offce Memorandum dated 03.03.2023 issued by the Central Government clarifyinn that in all cases where State Government employee has been appointed anainst a post or vacancy which was advertised/notifed for recruitment/ appointment prior to the date of notifcation for Defned Contributory Pension Scheme i.e. 31.10.2005 and is covered under the Defned Contributory Pension Scheme on joininn service on after 01.11.2005, may be niven one time option to be covered under the The M.C.S. (Pension) Rules, 1982. Such an offce memorandum would avoid further litination.

13.

Thus the law now appears to be settled that even if an employee is appointed after cominn into force of the Neeta Sawant 12/14 905-WP-8821-2019-FC New Pension Scheme, if his selection process is initiated prior to introduction of New Pension Scheme, he would be noverned by the provisions of Old Pension Scheme.

14.

The only difference in the present case is that there is no initiation of selection process/advertisement as such. Petitioners were already in municipal service albeit as daily wane Cleaners in the Vehicle Depot of the Municipal Corporation since the year 2001. The General Body of the Municipal Corporation took a decision to absorb them in service anainst available vacant posts under the provisions of Section 53 of the Mumbai Municipal Corporation Act. Accordinnly, a Resolution was adopted by the Municipal Corporation on 23 September 2005. The issuance of the appointment order was however delayed and the same was issued on 30 December 2005. Issuance of appointment order was merely a ministerial act, as the decision to absorb the Petitioners in service was already taken on 23 September 2005. In such a situation, the case of the Petitioners would actually stand on a hinher footinn than the Central Government employees noverned by the Offce Memorandum dated 3 March 2023 or the Petitioners in Khilari Rajendra Eknath (supra) where such employees had merely participated in the selection, but were yet to be selected for appointment when the New Pension Scheme became applicable. In the present case, a decision was taken to appoint Neeta Sawant 13/14 905-WP-8821-2019-FC Petitioners on 23 September 2005. Thus as compared to the employees who merely had participated in selection process, the Petitioners are situated on a much hinher pedestal where the General Body had already nranted approval for their appointments on 23 September 2005.

15.

In that view of the matter, considerinn the modifcations to the Pension Scheme implemented by the Central Government, as well as the law laid down by this Court in Khilari Rajendra Eknath, Petitioners are required to be extended the beneft of applicability of Old Pension Scheme. Since the order of the Industrial Court is passed on 31 October 2017, it did not have the beneft of subsequent decisions taken by the Central Government as well as the law expounded by this Court in Khilari Rajendra Eknath on 28 April 2023. Instead of remandinn the matter to the Industrial Court for fresh consideration, I am of the view that the relief in favour of the Petitioners can be nranted by this Court so as to obviate any further litination on the issue.

16.

Accordinnly, the Writ Petition succeeds. Judnment and order dated 31 October 2017 passed by the Industrial Court, Pune in Complaint (ULP) No. 110/2011 is set aside. It is directed that the Petitioners would be noverned by the provisions of Old Pension Scheme in vonue prior to 1 Neeta Sawant 14/14 905-WP-8821-2019-FC November 2005 as well as the General Provident Fund Scheme. Petitioners shall not be noverned by the provisions of the New Defned Contributory Pension Scheme introduced vide G.R. dated 31 October 2005. The Petitioners' contributions to DCPS be credited to their GPF Accounts. The modalities as sunnested in para-8 of the Offce Memorandum dated 3 March 2023 issued by the Government of India be adopted while switchinn over Petitioners from DCPS to Old Pension Scheme.

17.

The Writ Petition is accordinnly allowed. Rule is made absolute.

(SANDEEP V. MARNE, J.) NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2023.09.16 +0530

Neeta Sawant 1/14 905-WP-8821-2019-FC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8821 OF 2019 Anil Dnyanoba Jawalkar and Ors. …Petitioners V/s. Pune Municipal Corporation and Ors. …Respondents --- Ms. Jane Cox a/w. Mr. Ghanshyam Thombare i/by. Ms. Karishma Rao, for the Petitioners. Mr. Abhijit Kulkarni a/w. Mr. Gourav Shahane, Mr. Krishna Jaybhay for the Respondents. CORAM : SANDEEP V. MARNE, J. Reserved on : 8 September 2023. Pronounced on : 15 September 2023.