Summary of this article
Calcutta High Court set aside an impugned order passed in October 2023 that rejected an employee's application to switch to the OPS.
The Court ruled that technical lapses cannot deny pensionary benefits.
It ordered the authorities to review the employee's request in six weeks.
The Calcutta High Court set aside an administrative order that had denied a government employee the coverage under the Old Pension Scheme (OPS). A Division Bench comprising Justice Amrita Sinha and Justice Biswaroop Chowdhury safeguarded employee welfare by clarifying the rule.
The petitioner, currently a lower grade clerk (LDC), has challenged the Central Administrative Tribunal’s (CAT) order that upheld the government’s rejection of his request to allow him to switch from the National Pension System (NPS) to the OPS under the Central Civil Services (CCS) Pension Rules, 1972.
CAT has rejected his plea on technical grounds, as he hadn’t submitted a ‘technical resignation’ when seeking another government post. However, the high court said that procedural rules should not create impediments in implementing the beneficial welfare scheme.
Case Background
The petitioner applied for the post of a peon in May 2002, much earlier than the December 22, 2003 cut-off date for the coverage under OPS. Later, in 2005, he applied for the post of an LGC.
In September 2006, he was selected and appointed as a peon, but in March 2007, he submitted his resignation from the post of peon upon being selected as an LGC. While resigning, he explicitly mentioned the reason for his resignation, which was his selection as an LGC. His resignation was accepted without any objection, and he joined the LGC post on March 27, 2007.
Later, in 2003, an office memorandum (OM) dated March 3, 2023, was published, which offered a one-time option to employees to switch from NPS to OPS if the advertisement of the post they had joined was advertised on or before December 22, 2003. So, the petitioner applied for switching back to the OPS on August 8, 2023. However, authorities rejected his application in October 2023, citing the absence of ‘technical resignation’ submission.
Arguments
The petitioner argued that his resignation letter explicitly disclosed his selection as an LGC, and he did not hide any fact, and the employer had accepted it without objection. Since he met the eligibility criteria in accordance with the 2023 OM to get OPS coverage, rejecting his application was unjustified. He also cited another case of a similar nature (D. Ganapathi Rao vs. Union of India), in which the decision was passed in favour of the petitioner (employee D. Ganapati Rao).
The respondents argued that the petitioner was required to inform the employer about his prior pending job applications immediately after joining as a peon, in accordance with the OM dated August 17, 2016. The petitioner had not disclosed the other job applications at that time, and thus, he was ineligible for technical resignation and could not be allowed to switch to OPS from the NPS.
Technical resignation is the term used when a government servant applies for another post in the same or another department through a proper channel, and upon being selected, is required to resign from the current department or service for administrative reasons.
Court’s Observation
The high court observed that unemployed youth apply for multiple positions, as there is no certainty about selection, and they grab the very first job when they are selected as the next job offer remains uncertain. The Bench further noted that the petitioner’s appointment order had no mention of a mandatory disclosure requirement of pending job applications, and he was not informed about such an obligation when he joined service.
The court said, “A newly appointed employee is not supposed to know about all orders, circulars, OMs covering the field. Had there been such mandatory stipulation for disclosure, the employer should have brought the same to the notice of the employee.”
The court held that service should be widely published rather than kept hidden in official files. It also pointed out that the 2016 OM operates prospectively, not retrospectively.
Referring to the Supreme Court precedents, the high court established that the beneficial welfare scheme must be interpreted pragmatically rather than pedantically.
Court Judgment
The court set aside the rejection order dated October 30, 2023, along with the CAT order that upheld it. The court directed the respondent to reconsider the petitioner’s application under the March 2023 OM without raising the technical resignation issue. It directed the authority to issue a decision considering this ruling within six weeks as well as grant consequential benefits if the petitioner is found eligible. Accordingly, it disposed of the writ petition.
