1. The present Review Application (RA) has been filed by the review applicants, i.e. the original respondents, under Section 17 of the Central Administrative Tribunal (Procedure) Rules, 1987, seeking to review/recall the order dated 06.05.2022 passed by this Tribunal in O.A. No. 1978/2017. It has been pleaded that the O.A. No.1978/2017 was erroneously disposed of vide order dated 06.05.2022, subject to the outcome of WP(C) No.3642/2017 titled J.S. Malhotra & Ors. vs. DTC, filed against the order passed in O.A. No.3992/2013 decided against the applicants therein, but the prayer in that O.A. is entirely different from what has been prayed for in the instant O.A. No.1978/2017 and, as such, there is an error apparent on the face of the record.

2. Ms. Arati Mahajan Shedha, learned counsel appeared on behalf of the review applicants/original respondents submitted that the DTC had been diligently and regularly appearing the matter, however, on 06.05.2022, unfortunately she could not remain present, as she was on her legs before the Hon’ble High Court. She was even prepared to argue the matter along with the written synopsis/judgments, so her junior appeared on her behalf and asked for a pass over. However, the court did not grant pass over and rather disposed of the O.A., solely on the basis of the written submissions filed on behalf of the new counsel appeared on behalf of the applicants and the written synopsis/submissions on behalf of the respondents could not be taken into consideration.

3. The learned counsel further submitted that the applicants in the instant O.A. have claimed that their case is identical to that of Raj Singh and B.R. Khokha, who did not opt for pension earlier in terms of Office Order No.16 dated 27.11.1992 and exercised their option in favour of DTC Pension Scheme in terms of Office Circular dated 28.10.2002 and thus, placing reliance on the judgments passed in Raj Singh and B.R. Khokha, sought pension under the DTC Pension Scheme introduced vide Office Order No.16 dated 27.11.1992. In fact, in both the cases of B.R. Khokha and Raj Singh, pension was sought and granted under the DTC Pension Scheme as per Office Order dated 27.11.1992, which is evident from para 21 and 11 of the judgments, respectively, whereas in the case of J.S. Malhotra & Ors. (WP(C) No.3642/2017), the applicants therein have challenged the very basis of DTC Pension Scheme, i.e. Office Order No.16 dated 27.11.1992, itself and seeking to declare the same as illegal and also claiming pension in terms of MCD Pension Regulations dated 29.10.1971. Thus, there being a clear opposition in both the cases, by no stretch of imagination, it can be held that the judgment in WP(C) No.3642/2017 will be applicable to the case of the applicants.

4. The learned counsel further argued that the documents filed by the DTC would clearly show that neither the judgment in B.R. Khokha nor in Raj Singh can come in support of the applicants, as in both the cases, the DTC could not place on record the option forms exercised by the applicants therein, however, in the instant O.A., they have placed on record the option forms of at least 23 applicants duly exercised by them, opting out of the DTC Pension Scheme 1992 alongwith the counter affidavit filed by them, hence, their O.A. claiming DTC Pension as per the decisions in B.R. Khokha and Raj Singh ought to have been dismissed.

5. The learned counsel for the respondents also added that the Tribunal’s decision in O.A. No.3992/2013 - J.S. Malhotra & Ors. dated 16.12.2016 had gone against the applicants therein and the Writ Petition filed by them against the said order is still pending before the Hon’ble High Court and there is no stay; and the law as on date is determined in the order dated 16.12.2016 and if the applicants choose to rely upon the same, their O.A. has to be dismissed. She further argued that reliance was never sought to be placed on J.S. Malhotra (supra) by the earlier counsel for the applicant and, for the first time, such a submission was made on behalf of the applicants to dispose of the O.A. in terms of outcome in WP(C) No.3642/2017. Thus, the order dated 06.05.2022 stating that the outcome in J.S. Malhotra will be applicable to the applicants in the instant O.A., is without due application of mind and shows an error apparent on the face of the record, which gives a sufficient cause to review/recall the order dated 06.05.2022.

6. The learned counsel also drew our attention to the order dated 06.05.2022 and submitted that a number of errors have been crept in the order passed by this Tribunal, whereas the factual position is otherwise, such as, in para 2 of the order, it has been mentioned that “Brief relevant facts of the case are the Delhi Transport Corporation (DTC), as an Autonomous Body, was made a part of MCD w.e.f. 07.04.1958. At that time, the employees of Municipal Corporation of Delhi (MCD) were not entitled to pension. However, in the year 1961, a Pension Scheme was introduced in MCD for all its employees, including employees of DTC”. However, in fact, the DTC came into existence only on 03.11.1971. Therefore, there is no question of DTC, being an autonomous body, made a part of MCD w.e.f. 07.04.1958 or a Pension Scheme being introduced in DTC in 1961, when it was allegedly introduced in MCD for all its employees. Similarly, in para 3, it has been recorded as “….the employees of DTC continued to be governed by the Pension Scheme of MCD which had come into operation w.e.f. 01.04.1971”, and in para 5, it has been mentioned that “The applicants who were appointed prior to 1981 were entitled to get pension as per 1971 Pension Scheme of MCD. Hence, they opted not to get pension under 1992 Scheme, whereas the reason for not opting the DTC Pension Scheme by the applicants was that they were entitled to get pension as per 1971 scheme of MCD”, whereas the same is neither contention of the applicants nor an established fact. In fact, this issue of DTC employees being covered under the MCD Pension Regulation dated 01.04.1971 is yet to be decided by the Hon’ble High Court. Further, in para 6 it has been mentioned that, “….This time all the applicants opted in favour of this 2002 pension scheme however the said 2002 scheme was subsequently withdrawn by DTC”, but actually there was no such 2002 Pension Scheme, rather it was only a proposal/provisional offer seeking options subject to certain conditions in the absence of which the options given would become redundant, as is evident from Annexure-A3 of the O.A. Accordingly, she prayed that the order passed in the O.A. needs to be recalled/reviewed.

7. Learned counsel for the respondents concluded that the case of the applicants is covered by a recent judgment dated 11.08.2023 passed by a coordinate bench of this Tribunal in O.A. No.180/2020 titled Satish Pal Sabbarwal & Ors. vs. DTC, and also placed a copy of the same on record.

8. In rebuttal, Ms. Anupama Bansal, learned counsel for the respondents/original applicants submitted that the innocuous directions in the O.A. that decision in WP(C) No.3647/2017 titled J.S. Malhotra vs. DTC shall be applicable to the applicants, were issued in the background that a Writ Petition filed by similarly situated person seeking similar relief is pending before the Hon’ble High Court, which cannot prejudice the DTC and on the principles of parity and equity, in all fairness, the decision of the Hon’ble High Court in J.S. Malhotra’s case should apply to the applicants herein.

9. She further submitted that the applicants, who are octogenarians, only want pension which is eluding them for decades due to contradictory schemes of DTC. They were misguided which resulted in denial of pension to them and the entire Association of DTC employees is seeking the humanitarian relief of grant of pension. The conduct of the respondent-DTC is discriminatory as the counterparts of the applicants are getting full pension, whereas the same has been denied to them. The respondents are themselves instrumental in denying pension to the applicants inasmuch as after inviting and receiving options in the year 2002, they have unilaterally shelved the same, leaving them in a state of penury by not granting pension, which is legitimately expected to be given to them. She also added that the prayer made in the instant O.A. as well as in O.A. No.3992/2013 titled J.S. Malhotra vs. DTC is grant of pension, irrespective of exercise of option for pension, which was dismissed by this Tribunal and the same is under challenge before the Hon’ble High Court in WP(C) No.3642/2017, but the same is still pending adjudication. The original applicants had prayed that the decision in the said Writ Petition may be directed to be made applicable to the instant O.A., which was graciously agreed to by this Tribunal. As such, the directions issued vide order dated 06.05.2022 are innocuous as this Tribunal has not passed any substantive order in favour or the original applicants or against the respondent-DTC. Thus, the present RA fails to disclose any error apparent on the face of the record and, therefore, is not maintainable as per Section 114 of CPC.

8. Heard the learned counsel for both the parties and perused the order dated 06.05.2022 as well as the contents of the Review Application/written synopsis filed by both the sides.

9. The O.A. No. 1978/2017 filed by the original applicants was decided by this Tribunal vide its order dated 06.05.2022, as under:

“9. Ms. Neha, who appeared as proxy to Ms. Aarti Mahajan Shedha, learned counsel for the respondents submitted that the arguing counsel is on her legs at Hon’ble High Court of Delhi. However, I heard Ms. Anupama Bansal, learned counsel, who appeared on behalf of the applicants and argued the case as Amicus Curiae, and also perused the pleadings available on record.

10. Ms. Anupama Bansal, learned counsel requests that this OA may be disposed of with a direction that the decision in W.P.(C) No. 3642/2017, which is pending adjudication before Hon’ble Delhi High Court and is at the final stage, shall be applicable in the case of the applicants of the present OA.

11. In the facts and circumstances of the case and keeping in view the submissions made by learned counsel for the applicants, the OA is disposed of subject to the outcome of W.P. (C) No. 3642/2017. Once the said Writ Petition is decided by Hon’ble High Court of Delhi, it shall be applicable to the applicants in the present OA as well.”

From the above, it is revealed that the aforesaid order in the O.A. was passed in the absence of the learned arguing counsel for the respondent-DTC, keeping in view the submissions made by the learned counsel for the original applicants. However, it is apprised that the aforesaid Writ Petition is still pending adjudication before the Hon’ble High Court of Delhi and, at present, the matter has been notified for hearing on 07.02.2024.

10. After considering the rival submissions made by both the sides, it is emerged that the main controversy is as to whether the decision in WP(C) No.3647/2017 titled J.S. Malhotra & Ors. vs. DTC is applicable or some other decision shall be applicable in the instant O.A. For the sake of comparison, the prayer made in both the O.As. are reproduced below for ready reference:

From a perusal of the above, it is evident that in the instant O.A., the applicants, who exercised their option pursuant to office circular dated 28.10.2002, have sought pension under the DTC Pension Scheme, in terms of the judgments passed in the cases of similarly situated employees, viz. Raj Singh and B.R. Khokha, whereas in the case of J.S. Malhotra (supra), the applicants therein had challenged the very basis of DTC Pension Scheme, i.e. Office Order No.16 dated 27.11.1992 itself, and claimed pension in terms of MCD Pension Regulations dated 29.10.1971. Though the prayer of the applicants in both the OAs is related to pension but cannot be said identical and, hence, the decision in WP(C) No.3642/2017 cannot suo moto be made applicable to the instant case. Besides that, before indicating the applicability of decision in the said Writ Petition in its order passed in O.A.1978/2017, the Tribunal did not undertake necessary verification in that behalf and, therefore, the matter needs to be considered in detail by giving opportunity to both the parties.

11. The R.A. is, therefore, allowed and the order dated 06.05.2022 passed in the O.A. No.1978/2017 is recalled and the O.A. is directed to be listed for hearing before appropriate Bench on 16.02.2024.