Sabina, J. - (1.) PETITIONER has filed this petition challenging the orders dated 03.12.2010 and 03.05.2011 (Annexures P -21 and P -22 respectively), whereby, representation moved by the petitioner for counting of his regular service rendered in his parent organization -respondent No. 2 for the purpose of seniority and other benefits, including pensionary benefits, was rejected. Case of the petitioner, in brief, is that he joined the service of respondent No. 2 as Junior Engineer w.e.f. 28.04.1977. Petitioner was promoted as Assistant Engineer -II w.e.f. 05.05.1982 and as Assistant Engineer -I w.e.f. 06.12.1985. Petitioner was further promoted as Resident Engineer w.e.f. 24.04.1998 by respondent No. 2. Respondent No. 1 advertised the post of Executive Engineer in the pay scale of Rs. 10,000 -325 -15,200. Petitioner applied for the said post and was called for interview on 19.07.2001. The parent department of the petitioner gave no objection certificate and allowed the petitioner to appear in the interview. Petitioner was selected by respondent No. 1 for the post of Executive Engineer and was issued formal order of appointment (Annexure P -6) dated 26.12.2001. Pay scale of the petitioner was protected by respondent No. 1 after repeated representations made by the petitioner. Petitioner continued on deputation with respondent No. 1 for three years. Petitioner was absorbed in the service of respondent No. 1 w.e.f. 22.12.2004. Petitioner opted for General Provident Fund (in short 'GPF') Scheme instead of Contributory Pension Fund (in short 'CPF'). Petitioner moved a representation for counting his service rendered by him in his parent department. But no action was taken on the same. As per the seniority list issued by respondent No. 1, date of joining of the petitioner was mentioned as 22.12.2004 instead of his initial joining with the parent department i.e. 24.04.1998. Objections filed by the petitioner to the said seniority list were not considered by respondent No. 1 vide Annexure P -21 dated 03.12.2010. Petitioner was, for the first time, informed that he could not switch over to GPF scheme as he was absorbed after the cut off date i.e. 31.12.2003.
(2.) RESPONDENTS in their written statement have taken the following preliminary objection: - That in the whole of the writ petition the petitioner has projected as if the benefit of G.P.F. -cum -Pension Scheme is to be allowed to him on the basis of his date of his seniority whereas the basis of both the matters i.e. Seniority and the applicability of G.P.F. Cum Pension Scheme are different there is no rule which may determine the entitlement of pension under the G.P.F. -cum -Pension Scheme on the basis of the seniority in the cadre. In fact admittedly the petitioner joined the respondent no. 1 w.e.f. 21.12.2001 on deputation for a period of two years which was further extended for one more year. In this way the petitioner remained on deputation with the respondent no. 1 from 21.12.2001 to 21.12.2004. During the period of his deputation with the respondent no. 1, the petitioner was allowed to draw his pay in the pay scale of his parent department plus deputation allowance. During this entire period of deputation, the respondent no. 1 regularly paid to respondent no. 2 i.e. his parent organisation, leave salary as well as the pension contribution as the petitioner was the member of the Contributory Pension Fund (C.P.F.). When the deputation period of the petitioner was going to expire, the petitioner submitted his application dated 04.10.2004 to the respondent no. 1 requesting the respondent no. 1 for considering his case for absorption with respondent no. 1 after getting concurrence from his parent organisation. In pursuance thereof, the petitioner obtained the concurrence of his parent department and submitted his Technical Resignation from the service of respondent no. 2 and he was relieved by his parent organisation on 21.12.2004 and the petitioner joined the service of the respondent no. 1 on being permanently absorbed w.e.f. 22.12.2004. On being absorbed with the respondent No. 1, the petitioner was released all the benefits by the Respondent No. 2 for the period of his service with them as per his admissibility which also includes the maturity amount of the CPF. As other employees of the respondent No. 1 can only be the member of the New Pension Scheme introduced by the Central Government w.e.f. 01.01.2004, therefore, the petitioner was also taken under this New Pension Scheme from the date of his absorption i.e. 22.12.2004. Since the petitioner prior to his absorption was the member of the Contributory Pension Scheme (CPF) in his parent organisation, therefore, the petitioner could not have been allowed the benefit of GPF -cum -Pension Scheme which too ceases to operate w.e.f. 01.01.2004 i.e. prior to the absorption of the petitioner with the respondent no. 1. In the present writ petition, the case of the petitioner is that in his parent department the petitioner was placed in the pay scale of Rs. 10,000 -325 -15,200 and on being absorbed with the respondent no. 1 the pay scale of the petitioner continued to be the same, therefore, the period of his service in his pay scale in his parent organisation be counted for the purpose of seniority including all other benefits including Pensionary benefits. So far as the Seniority of the petitioner is concerned the petitioner is holding a Single Cadre post of Executive Engineer, therefore, such plea becomes redundant. However the basic pay of the petitioner was protected. Such period of seniority has no relevance with the pensionary benefit as the same is granted under the Pension Scheme applicable and opted by the petitioner. As admittedly the petitioner was the member of the CPF Scheme prior to his absorption, therefore, the petitioner was rightly released the benefits arising out of the said scheme by his parent department. The GPF -cum -Pension Scheme which was available to the employees of the respondent No. 1 at the relevant time could not be extended to the petitioner as the said scheme remained in existence upto 31.12.2003 when the petitioner was not the employee of the respondent no. 1. On the date of his absorption i.e. 22.12.2004, since the New Pension Scheme was prevalent, therefore, the petitioner was rightly made member of this New Pension Scheme but the petitioner on the basis of his combined length of seniority, is claiming pensionary benefit under the GPF -cum -Pension Scheme which is not admissible in view of the instructions of the Government of India dated 26.07.2005 wherein it has been provided as under: - (ii) The employees who entered into service on or before 31.12.2003 and who were governed by CPF scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 1 -1 -2004, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceases w.e.f. 31.12.2003 and no new entry can be allowed in the pension scheme under above Rules. However, such employees can seek pensionary/terminal benefits from the previous organisation/Department if admissible under the rules of that organisation/department for the period of service rendered under that organisation/Department. Learned counsel for the petitioner has submitted that the petitioner was liable to be granted benefit of his service rendered by him in his parent department for the purposes of seniority and other pensionary benefits. The pay of the petitioner was also liable to be fixed by taking in consideration his deputation period by respondent No. 1.
(3.) LEARNED counsel for respondent No. 1, on the other hand, has submitted that respondent No. 2 had released all the benefits to the petitioner at the time of his absorption with respondent No. 1. Petitioner was also allowed to avail the benefit of New Pension Scheme from the date of his absorption, as the said scheme was introduced by the Government w.e.f. 01.01.2004.;