By Hon’ble Dr.Chhabilendra Roul, Member (A):-

1. The present OA has been filed by the applicant (Shri Shyam Sunder) seeking to submit fresh option for pensionary benefits on basis of combined services rendered in the Government of India and Mahanagar Telecome Limited (MTNL), New Delhi. The applicant has submitted online application with registration No.DOTEL/E/2020/01421 dated 16.1.2020. However, the respondents have not given any response to his online application. Being aggrieved, he has filed present OA, seeking the following relief(s):

“(a) Order and direct the respondents to allow the applicant to give a fresh option for pensionary benefits.

Or

Order and direct the respondents to count the combined service rendered by the applicant in Govt. of India and MTNL ( in the light of judgment of Hon'ble Delhi High Court in WP (c) No. 9070/2017) for pensionary benefits.

(b) Order the respondents to give all consequential benefits to the applicant.

(c) Quash and set aside or in the alternative read down the provisions of the Explanatory Memorandum dated 03.3.2014 to the extent of their denial of the pensionary benefits for combined service (rendered in Govt. and MTNL) to those employees of MTNL who had opted for prorata pensionary benefits. (viz., before the Notifications dated 21.12.2012 and 03.3.2014 came into effect) and consequently:

(d) Pass such orders and/or directions as deemed fit and proper in the facts and circumstances of the case.”

2. The factual matrix of the present is as follow:

2.1. The present applicant has joined the Department of Telecommunication prior to 1998. The MTNL was established in April, 1986 to manage and control the telecommunication services in the two metropolitan Cities of Delhi and the Mumbai. The Officers and the staff working in the Department of Telecommunication (DoT) in Delhi and Mumbai were transferred in mass to MTNL on deemed to have on deputation basis. The Group „C‟ & „D‟ of DOT were absorbed in MTNL w.e.f. 1.11.1998 and whereas the group A & B officers were w.e.f. 1.10.2000. At the time of absorption, the respondents have offered two options to the applicants for pensionary benefits, as under:-

(a) To retain the pensionary benefits available under the Government Rules ( Option A)

OR

(b) To receive pro-rata benefits for service rendered under Central Govt. and to be governed by Rules of MTNL w.e.f.01.11.1998 (Option B)

The applicant in the present OA who had less than 10 years of service in DoT at the time of his absorption in the MTNL on 1.11.1998. As per the Department of Pension and Pensioners Welfare‟s OM No.4/18/87-P& PW (D) dated 5.7.1989, the employee who have not completed qualifying service of 10 years are not given pro-rata pension. Instead, they are supposed to get in lumpsum amount equal to the provident fund contribution for the period of their service rendered under the Government upto the date of permanent absorption in the PSU/Autonomous Body with simple interest at 6 % per annum. This will be the opening balance in their CPF account with the Public Sector Undertaking / Autonomous Body. The present applicant had 9 years, 6 months and 20 days of service in the Department of Telecommunication at the time of his permanent absorption in the MTNL. The applicant opted for pro-rata pension for the service rendered under the Department of Telecommunication. Because the applicant did not complete 10 years of service, he was granted lump sum dues in place of prorata pension. The present applicant in his OA is praying for a direction to the respondents to provide him another option for opting pension based on combined service in the Government and in MTNL in accordance with the amendment in a rule 37 A of CCS (Pension) Rules 1972. The said amendment which was issued vide notification on 13.3.2014, came into effect from 1.10.2000. It states as under:-

“ (a) In sub-rule (22) and sub-rule (23), after the words” Bharat Sanchar Nigam Limited in both the places where they occur, the words “ and “Mahanagar Telephone Nigam Limited” shall be inserted.

(b)For sub-rule (24) , the following sub-rule shall be submitted, namely-

“(24) The arrangements under sub-rule (23) shall be applicable to the existing pensioners and to the employee who are deemed to have retired from the Government service for absorption to Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited and shall not apply to the employee directly recruited by the Bharat Sanchar Nigam Limited and Mahanagar Telephone Limited for whom they shall devise their own pension scheme and make arrangement for funding disbursing the pensionary benefits.”

2.3. The employees of MTNL who opted for pro-rata pension in terms of DOP & PW‟s Om dated 5.7.1989 with less than 10 years of service submitted a representation on 4.3.2014 and also subsequent reminders seeking fresh option for combined service pension. These representations were examined by DoT in consultation with the MTNL and DOP & PWD. A policy decision was taken by the respondents that another option for combined service pensionary benefit was not acceptable and the same was rejected. Being aggrieved, the applicant has come to this Tribunal in the present OA, seeking the aforementioned relief.

3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

4. From the pleadings of the parties and arguments by their counsels, the following issues are framed in the present case:

i) Whether the present OA is barred by limitation;

(ii) Whether the Apex court‟s judgment dt. 17.2.2020 in Union of India & Others vs. Asha Devi is personam or in rem

(iii) Whether the present applicants are entitled to get relief to get pensionary benefits based on combined years of service in DOT and MTNL.

5. The respondents in their counter affidavit and arguments by their counsels have raised the issue of limitation and have alleged that the OAs are afterthoughts after the judgment dated 17.2.2020 by the Apex court in Union of India and Others vs. Asha Devi. The respondents averred that the OA is hopelessly time barred. As no application for condonation of delay has been filed, it should be rejected as time-barred.

6. The respondent no. 3 has specifically in their counter affidavit cited the judgment of the Apex Court in Union of India & Others vs. M.K. Sarkar wherein it was held that filing of repeated representation does not cure that case from the laches or limitation even when a belated representation in regard to stale or dead issue is to be considered. The Apex Court in this case held:

“14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The illeffects of such directions have been considered by this Court in C Jacob vs. Director of Geology and Mining & Anr.-2009 (10) SCC 115 [LQ/SC/2009/1899] .

The Courts/Tribunals proceed on the assumption, that every citizen deserves a reply to this representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any decision or rights and obligations of parties. Little do they realize the consequences of such a direction to consider. If the representation is considered and accepted, the ex-employee gets relief, which he would not have got on account of the long delay, all by reason of the direction to consider. If the representation is considered and rejected, the exemployee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/ High Courts routinely entertain such applications /petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored”.

15. When a belated representation in regard to a stale or dead issue/ dispute is considered and decided, in compliance with a direction by the Court/ Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the dead issue or time barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of actions and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the limitation, or erase the delay and laches.

16. A Court or Tribunal, before directing consideration of a claim or representation should examine whether the claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a deal or stale issue. If it is with refere3nce to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. IF the court or Tribunal deciding to direct consideration without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and leaches. Even if the court does not expressly say so, that would be the legal position and effect.”

7. In view of the above, the counsels for the respondents argued that the present applicants can not claim for fresh option of pension benefit for which they had already opted about 20 years back. They argued that the matter has become stale and granting relief at this stage on the basis of such belated application, would lead to serious administrative, complications to the employers. In view of this, they argued that the OA should be dismissed on grounds of limitations only.

8. The applicant has anticipated that the respondents would plead dismissal of the OA on grounds of limitation. They have pleaded in their OA, which was further reiterated by the averments by their counsel during arguments as to why the OA is not barred by limitation.

9. The claim of the applicant, as it has been averred by their counsel, is based on the prayer to rectify continuing wrong of denying of the entitlement for appropriate pensionary benefits. The counsel cited the judgments in MR Gupta vs. Union of India (1995 SCC (5) 628) in which has been held :-

“ We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine or laches, as the denial of benefits occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong.”

10. The counsel for the applicant further cited the judgment of the Apex court in Union of India vs. Tarsen Singh ( CA No. 5151-5152 of 2018) wherein it was held :

“5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

11. Thirdly, the counsel for the applicants has averred that the principles declared by the Apex Court in Sualal Yadav vs. State of Rejasthan (1976) 4 SCC 853) [LQ/SC/1975/349] are applicable in the present case. In this case, the Supreme Court held that :-

“2. A preliminary objection was taken by the State in the High Court that the application merited dismissal because of undue laches and delay on the part of the appellant. The High Court found that the review application was made to the Governor after a lapse of about two years which was unreasonable delay according to the High Court. That is the main reason why the High Court accepted the preliminary objection and dismissed the writ application. We are unable to hold that the High Court's approach in this matter was correct. Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application. We therefore allow the appeal, set aside the Order of the High Court and remit the writ application for disposal in accordance with law. It is hoped the High Court will be able to dispose of the same expeditiously. There will be no Order as to costs.”

12. In the instant case, the counsel for the applicants argued that the representation by the applicants were not rejected vide the impugned orders on the grounds of delay but on merits. The applicants have drawn the attention of the respondents department, DOT, to the judgment of the Apex court in Union of India & Others vs. Asha Devi (supra) dated 17.2.2020 and prayed for similar benefit as granted in case of Asha Devi. As the matter was rejected stating that the judgment in Asha Deve‟s case was in personam, the rejection was on merit. Drawing parallel to the Apex Court‟s judgment in Sualal Yadav vs. State of Rajasthan (supra), the counsel for the applicant averred that the OA is within limitation.

13. We have considered the facts and circumstances of the case and the case laws cited by the counsels by both parties. We could not agree with the contention by the respondents, Department of DOT that the matter of pension is stale or dead. Hence, the judgment by the Apex court in Union of India & others vs. M.K.Sarkar ( 2010 (2) SCC 59) [LQ/SC/2009/2117] is not relevant here. On the other hand, we agree with the contention of counsel for the applicant that grievances relating to pension matters falls under the category of continuing wrong. Hence, the ratio of judgment by the Apex Court in M. R. Gupta vs. Union of India is applicable in the present case.

14. In view of the above, we declare that the present OA is not time barred and it is within limitation. There was no need for filing application for condonation of delay.

15. Regarding the second issue whether the judgment in Union of India & others vs. Asha Devi is in rem or personam & associated relief (issue No.3), the counsel for the applicants averred that the facts and circumstances of Union of India and others vs. Asha Devi are exactly the same as in the present case. Asha Devi‟s husband had given the option of pro-rata pension though he had not completed 10 years service in the Department of Telecommunication (DOT). He drew our attention to order dt. 8.9.2017 in OA No. 1490/2015 of this Tribnunal vide order which has analyzed the Asha Devi‟s husband‟s case in the following manner:

“13. It is obvious from the records that at the time of exercising option of pro-rata pension, the applicant‟s deceased husband was unaware of the fact that the entitlement of pro-rata pension required at least 10 years of service. He had at the point of exercising this option had put in a little less than 7 years of service in the Department of Telecommunication. Any reasonable person, whether literate or illiterate, is very unlikely to exercise an option of pro-rata pension after putting in only 7 years of service when the rules provide that he must put in at least 10 10 years of service to become entitled for this facility. As a matter of fact, exercising such an option becomes utterly meaningless and infructuous, and, in my view, amounts to no option in the eyes of law. In legal terms, it may, as well be called „non-est‟. In other words, by exercising this option, he is making sure that he is not entitled to pro-rata pension which cannot be the intention behind exercising this option in this matter..

He further argued that, the Delhi High Court in WP ( C) No. 9070/2018 vide its order dated 16.11.2018 upheld the view taken by this Tribunal. It has held that the action of the petitioner (DOT) in calls for the option from the respondent‟s husband to be farcical. It has further held that:

“4. In our view, rightly so. When the respondent‟s husband did not even rendered 10 years service with the Government, there was no purpose in asking him to make an option. Really speaking, he had no option and his services with the Government (DoT) had to be counted for purpose of determination of his pensionary benefits with the MTNL. The stand taken by the petitioner is most iniquitous and deserves condemnation.

5. The Tribunal has required the petitioner to got through the formality of again asking for a fresh option the respondent. In our view, there is no need for the same. For that procedure to be adopted, the same exercise of any option is futile. The only option available is that the service rendered by the respondent‟s husband with the Government (DoT) has to be counted for determination of pensionary benefits that are admissible from the MTNL.”

When Union of India appealed against the order dated 16.11.2018 of Hon‟ble Delhi High Court in W.P. No. 9070/2018 the Apex Court passed the following order:

“Delay condoned.

In the peculiar facts and circumstances of the case, we do not see any reason to interfere in the matter. The special leave petition is, accordingly, dismissed. The questions of law are however kept open.

Pending application(s) , if any, shall stand disposed of.”

Now, the question arises as to whether the Apex Court by dismissing the appeal of Union of India has created rights and entitlements in favour of Asha Devi, the widows of deceased Chandi Prasad Bamrara, exemployee of MTNL and whether such rights or entitlement could be extended to similarly placed persons who are not part of the said litigation. Shri Bamrara died on 5.7.2012 in harness while serving with MTNL, leaving behind six family members who all were unemployed. Keeping those facts and circumstance in Asha Devi‟s case, the Apex court dismissed the appeal of Union of India against the judgment of Delhi High Court and this Tribunal. However, the question of law was kept open. When the question of law was kept open, then the judgment was in personam not in rem. I also agree with averment by the Respondent No.3 that ignorance of law is no excuse. At the time of exercising the options, the applicants were supposed to know the repercussions of their action. At that time, DOP&T OM No. 4/18/87 – PDW (D) dt. 5.7.1989 and OM No.4/42/91-P&PW(D) dt. 31.3.1995 were very much in existence. As per these OMs , those who have less than 10 years service with DOT would be entitled to an amount equal to the Provident Fund Contribution the period of their service with DOT up to the date of permanent absorption in MTNL with simple interest prevalent at that time.

16. I agree with the contention of the respondent No.3 stated in their counter affidavit that any layman, before exercising an option, would definitely know the pros and cons of such exercise. Hence, the arguments like ignorance of law and the status of the employee as Group „ D‟ do not hold ground to seek reversal of such option after 20 years or more. Moreover, allowing fresh option at this stage will open the pandora‟s box of many more such employees who might have opted prorata pension to knock the doors of the government and the courts to get similar benefit. When the Apex Court did not pass a judgment in rem, creating right or entitlement in favour of similarly placed employees or ex-employees of MTNL is not warranted.

17. In view of the above, I do not find merit in the OA and hence it is dismissed. No order as to costs.

18. All pending MAs, if any, are also disposed of accordingly.