IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER. W.P (C ) No. 5562/2002. Judgment reserved on: October 05, 2006

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P (C ) No. 5562/2002 Judgment reserved on: October 05, 2006 Judgment delivered on: November 24, 2006 SHRI K.K.DHIR Through:... Petitioner Mr. B.S. JAIN, Adv. VERSUS UNION OF INDIA & OTHERS Respondent Through: Mr. J.P.Sharma, Adv. CORAM: HON'BLE MR. JUSTICE MANMOHAN SARIN HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. 1. This petition under Article 226 of the Constitution of India is directed against the order dated 2nd April, 2002 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 2491/2000 whereby the original application filed by the petitioner has been dismissed. 2. Brief facts of the case are that the petitioner joined the office of Respondent no.2 i.e. Accountant General (A & E) Punjab, Chandigarh (formerly A.G. Punjab, Shimla) as Upper Division Clerk (UDC) on On passing the SAS examination, he was promoted as superintendant with effect from He was granted quasipermanent status with effect from He applied for the post of Accounts and Finance Officer in ONGC through proper channel. On being selected for the said post, the petitioner states that he was forced to resign, since he would otherwise not be permitted to join ONGC. He accordingly tendered his resignation in pursuance of the letter dated He was relieved by Respondent No.2 on Thereafter, he joined the ONGC on On and , the Petitioner sought to

2 withdraw his resignation tendered to Respondent No. 2 earlier, and the withdrawal of resignation was accepted by the respondent No. 2 on and vide order dated , the intervening break in service was treated as "dies-non". It was not to constitute a break in service. Petitioner continued to work in the office of respondent No.2 till when he resigned once again to join ONGC. He finally retired from ONGC on The Petitioner claims that he remained in service of Respondent No.2 from to minus the period of dies-non from to Petitioner requested the respondent for grant of prorata pensionary benefits on as he had rendered more than 10 years of qualifying service with the respondents as aforesaid. However his claim was rejected vide respondent's letter dated He made another representation which was also rejected on In this background, petitioner preferred the aforesaid O.A. No. 2491/02 before the Tribunal praying for grant of prorata pensionary benefits. 5. The Tribunal relied upon the Supreme Court decision in Union Of India Vs V.R. Chadha reported as (1997) 11 SCC 242 wherein it was held that since the petitioner was not absorbed in the PSU in public interest, the benefit of T.S. Thiruvegadam vs. Secretary to Government of India & Ors. (1993) 2 SCC 174 could not be made available to him. Relying upon the said decision the ld. Single Member dismissed the O.A. preferred by the petitioner vide its impugned order dated 2nd April, We heard the parties at length and on 5th October 2006 directed them to file their written synopsis. Both the parties have filed their written submissions. 7. Petitioner's case is that at the time when he had joined service their was no provision for allowing prorata pensionary benefit. The only benefit then available, vide O.M. No. F.2(33) EVA/60 dated was to receive "an amount equal to what Government would have contributed had the officer been on Contributory Provident Fund term under Government, together with simple interest thereon at two per cent for the period of his pensionable service under Government". This was subject to the conditions that the Government Servant was deputed or transferred to the autonomous body and such permanent transfer/absorption was in public interest. Petitioner claims that he did not get this benefit. Subsequently, vide OM dated , permanent Central Govt. Employees on deputation/transfer to PSUs upon their permanent absorption in a PSU in public interest, were made eligible for prorata pensionary benefits. However, this benefit was restricted only to those who were absorbed on or after June 16, There were two more OMs dated and on the subject leading to D.O.P.T. O.M. No /4/76-Estt(C) dated whereby Govt. Servants who were deputed/transferred and then absorbed, or had joined of their own volition in a PSU, on or after were made eligible for pro-rata retirement benefits. However the actual financial benefits were allowed only from Therefore, the distinction between deputationists/transferees who were absorbed in a PSU in public interest and those who joined the PSU of their own volition post was obliterated. However, the cutoff date of was still mantained to make eligible those employees who had joined

3 the PSU of their own volition. The categorisation of pensioners, i.e., those who were absorbed prior to June 16, 1967 and those who were absorbed after the said date, was declared unconstitutional by the Apex Court in T.S. Thiruvengadem's case (supra). Thereafter, the Government, issued OM dated , extending the benefit of prorata pension to even those Government servants, who had joined Public Sector Undertakings prior to subject to certain conditions. 8. Counsel for the petitioner relies upon Union of India & ors vs O.P. Sharma & Anr III AD (Delhi) 37, wherein prorata pensionary benefit has been extended by this court even to a person who had moved to PSUs prior to of his own volition. This Court took note of a decision of the Hyderabad Bench of the Tribunal in the case of Har Binder Lal vs. The Controller and Auditor General of India & Ors. (OA 527/87) decided on 14th April, 1988, which had been upheld by the Supreme Court vide its order dated 9th January, In Har Binder Lal's case (supra) the Tribunal had applied the Apex courts decisions in D.S. Nakara vs. Union of India & Ors. AIR 1983 SC 130 and Thiruvengadam(supra) wherein it has been held that an arbitrary date could not be fixed to deny equal treatment to pensioners who formed a single class and that such a distinction would be violative of Article 14 and 16 of the Constitution. Thus the government servants who joined PSUs even prior to said date were held to be entitled to prorata pensionary benefit. 9. Petitioner has assailed the said order on the ground that the decision of the Ld. Single Member of the Tribunal is per incurium and against the principle of precedent which is accepted by our jurisprudence. The Ld. Single member was bound by the previous decisions of the Tribunal in similar cases, and those of this Court which had been upheld by the Hon'ble Supreme Court. Reliance in this regard is placed on the observation made by the Apex Court in Sub Inspector Roop Lal Vs Lt. Governor, 2000 SCC (L&S) Respondents firstly raised a preliminary objection that the petitioner is guilty of delay and laches and his claim for prorata pension is barred by Limitation as he ought to have moved the legal machinery within one year of rejection of his first representation dated Further, in terms of Article 102 of the Limitation Act, reliance has been placed on Anand Swarup Singh vs. State of Punjab, AIR 1972 SC 2638 wherein, in a suit for arrears of pension, the court held that the plaintiff could only recover the arrears of pension for three years. On merits, it was argued that the applicant had resigned from his service voluntarily of his own accord, and was not an absorbee in the ONGC. Further it has been contended that though the petitioner applied to join ONGC through proper channel on and his resignat_on from the Government was permitted to be withdrawn in public interest on , his second resignation from the Government and rejoining ONGC was a unilateral act for which no permission was obtained by the Petitioner from the respondents. In this regard Rule 26 of the CCS (Pension) Rules 1972 was pressed into service to say that in this case Resignation from service would entail forfeiture of service. Further, the conditions stipulated in Rule 37 of the CCS(Pension) Rules 1972 which grants the right to seek prorata pension, were also not fulfilled, as the absorbtion in ONGC was not declared to be in public interest by the Government. He relied upon V.R. Chadha (supra) and contended that this decision was not considered in

4 Har Binder Lal's case (supra). He also relied upon OM dated bearing No. 4(6)/85P&PW(D) to contend that the petitioner was not eligible for prorata pension. 11. As far as the preliminary objection taken by the respondents is concerned, we are of the view that the same lacks substance. After his first representation was rejected on 30th June 97, the petitioner made another representation on which was also rejected, although on the ground that since he had resigned from service his case was covered by Rule 26 of the Pension Rules. The same was not rejected on the ground that his previous representation having already been rejected, the second representation was not maintainable. The position in law on this aspect stands settled by the Apex Court in Sualal Yadav v. State of Rajasthan (1976) 4 SCC 853 wherein it has been held that reconsideration of subsequent representation on merits entails a fresh cause of action. Once the government reconsiders a case on merits instead of rejecting the representation on the grounds of delay or being barred by prior decision, the plea of limitation does not arises. Further this is not a case of recovery of arrears of pension, but a case where the petitioner is trying to establish his right to be admitted to pensionary benefit which has been denied to him. Thus Anand Swarup's Case has no application in this case as in the said case the suit itself was for recovery of arrears of pension. Nevertheless, it is settled proposition of law that the right to claim pension gives a recurring cause of action. 12. In O.P. Sharma's case (supra) this Court upheld the grant of prorata pensionary benefits to an ex-employee of CPWD who moved to ONGC of his own accord on 30th June 1961 i.e. much before the petitioners case. The court through A.K.Sikri, J. observed and we quote: "The learned Tribunal also noted that the aforesaid OM was subsequently followed by another OM dated 16th June, 1967 which provided that those absorbed in PSUs etc after 16th July, 1967 would be entitled to prorata pensioin and DCR Gratuity but this was conditional on the transfer of government servants to the PSUs etc being in the public interest. Thus public interest remained the guiding factor upto this stage. However, after consideration the government removed this condition of absorption by the PSU in the public interest and by DOPT's OM dated 21st April, 1972 laid down that those appointed in PSUs etc on their own application will also be governed by the aforesaid orders of the Ministry of Finance dated 8th November, 1968, the effect of which would be to give benefit to those who were absorbed permanently in PSUs on or after 21st April, In this connectioin, the learned Tribunal also noted Rule 37 of CCS (Pension ) Rules, 1972 which reads as under: 'A Government Servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly owned or controlled by the Government or under a body controlled or financed by the goverment shall, if such absorbtion is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to recieve retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined,_in accordance with the orders of the Government applicable to him.

5 Provided that no declaration regarding absorption in the public interest in a service or post in or under such corporation, company or body shall be required in respect of a Government servant whom the government may, by order, declare to be scientific employee' Interpreting the aforesaid Rule the learned Tribunal stated that this Rule does not distinguish between Government servants absorbed in Public Interest and on their own application, the learned Tribunal noted that on this reckoning since his absorption in ONGC was on 3rd October, 1961 i.e. much prior to the 8th November, 1968 he would be covered by the aforesaid OMs as he was absorbed on his own application and not in public interest. However, relying upon the judgment of the Hydrabad Bench of the Central Administrative Tribunal in the case of Har Binder Lal vs. The Controller & Auditor General of India & Ors (OA 527/87) decided on 14th April, 1988 which was upheld by the Supreme ourt in it order dated 9th January, 1989 the OA of the respondent was allowed. In this judgment rendered by the Hyderabad Bench the learned Tribunal applied the ratio of the Supreme Court in the case of D.S. Nakara Vs. U.O.I. & Ors. Reported in AIR 1983 SC 130 and held that there cannot be any discrimination between those who joined the Public Sector Undertaking prior to 8th November, 1968 and those who were absorbed in Pulic Sector Undertaking after 8th November, 1968 as this date of 8th November, 1968 was arbitrary and without any rationale". 13. The issue with regard to grant of prorata pension to those government servants who had joined a PSU after rendering more than 10 years of government service is a matter which has seen widening of the door from time to time, either by the Government itself or by Judicial pronouncements. Initially such benefit was sought to be restricted by fixing a cut off date and by stipulating that the movement from Government service to a PSU should be a transfer or deputatioin as opposed to a move by the Government servant of his own volition. An additional condition was added that the move should have been declared by the Government to be in the Public Interest. These requirements had thier roots in FRs 26 & 37. So far as the cut off dates fixed by the Government are concerned, following D.S.Nakara (supra) and Thiruvengadam (supra), it stands concluded that such classification on the basis of a cut off date which is fixed without any rationate would be arbitrary. Therefore, merely because the petitioners case pertains to 1965/1966, he cannot be denied prorata pension, if otherwise he fulfills the requirements for grant of this benefit. So far as the twin conditions that (i) the Government Servant should have been first transferred/deputed to the PSU and thereafter got absorbed in the PSU, as opposed to his movement of his own volition and (ii) his movement to the PSU should have been declared in Public Interest, is concerned, the same have also been relaxed by the Government from time to time, as would appear from the Government O.Ms of 1968, 1972, 1977 and Once these conditions have been relaxed, it does not stand to reason that these relaxations should be only from and after a cut off date, which has no rational basis. The relocation would be applicable to all such Government servants who join PSUs even before such arbitrarily fixed cut off dates. Consequently, in our opinion, all Government servants, who had 10 years or more of qualifying service before they moved to PSUs, either on transfer/deputation, or of their own volition, and in respect of

6 whom there was a declaration of their move being in Public Interest or not, would be entitled to prorata pension. Pension, it has been held is not a bounty payable on the sweet will and pleasure of the Government. The right to receive pension is a valuable right vesting in a Government servant. It is not an ex gratia payment. It is a payment for the past services rendered. (Reference may be made to Deokinandan Prasad vs_ State of Bihar (1971) 2 SCC 330 and Subrata Sen vs. Union of India (2001) 8 SCC 71.) 14. Thus, we allow this petition and the impugned order dated is quashed. The respondents are directed to grant the benefit of prorata pension to the petitioner and pay the arrears of pension to him within three months of passing of this order. If the arrears are not paid within three months, the petitioner would be entitled to 6% per annum for any further delay in making payment. The said benefit be calculated on the basis of the petitioners tenure from to the date of his first resignation i.e., His subsequent period in service after withdrawl of his resignation from the Government upto his second resignation shall not be considered. The arrears would be payable from onwards, since the claim for prorata pension was first made by the petitioner on The respondents are also directed to regularly pay the prorata pension henceforth begining Sd./- VIPIN SANGHI,J November 24th, 2006 Sd./- MANMOHAN SARIN,J