JUDGMENT S.B. Sinha, C.J.
1. The short question, which arises for consideration, in this writ petition is as to whether the services rendered by the petitioner herein from 28.07.1964 to 29.9.1996 as a Post Graduate Teacher (in short, PGT') in the Department of Education, Delhi Administration can be computed towards the pensionary benefits.
2. The short fact leading to filing of this present writ petition is as follows:-
The petitioners worked as PGT in the Department of Education, Delhi Administration in the scale of Rs. 250/- Rs. 470/- for a period of more than 2 years, i.e., from 28.07.1964 to 29.09.1966. He had also been given increment in July, 1965 and from his salary, general provident fund had also been deducted. He joined Indian Air Force (in short, 'IAF') as a Commissioned Officer upon tendering a technical resignation. However, he retired w.e.f. 31.03.1990.
As far as back as on 14.12.1988 an application was filed by him for taking into account the aforementioned service towards his pensionary benefits, but by a letter dated 10.04.1989 the same was rejected inter alia on the ground that the services of the petitioner was ad hoc in nature. The petitioner thereafter filed a statement of case before the Commanding Officer on or about 01.05.1989 on the following ground:-
"(a) Certificate of service issued by Date of Education, Delhi Administration, Delhi dated 13 Dec 89 attached as page 10 of service book (Annexure II) showes that case falls under scope of Article 418(b) CSR and under provision of Rule 26(2) of CCS (Pension).
(b) Col 2 of service records Appendix shows type of service as temporary/ non- Gazetted.
(c) Clarification issued by Directorate of Education, Delhi Administration, Delhi (Annexure VI) the service as continued temporary service, which would have become regular permanent service in due course of time had Shri Hukum Singh Verma (now Wing Commander in IAF) continued in that service.
(d) Clarifications issued by the respective schools Principals (Annexure VII) on the actual service performed state that the permanent / temporary regular vacancy of PGT Physics of the schools for the period under issue were filled by Shri Hukum Singh Verma (Now wing Commander in AF)." Statement of case (Annexure F Colly)"
The said application was also rejected by an order dated 01.03.1990.
3. In the aforementioned situation, the question, which arises for consideration, is as to whether the petitioner's service as ad hoc PGT Physics in Delhi Administration should be counted for the purpose of computing pension and other retrial benefits.
4. It is not in dispute that the petitioner was appointed at a point of time when the rules for appointment of such Teachers had not been framed. The appointment rules under the Delhi School Act were framed only in the year 1972. It has also not been disputed that had the petitioner remained in service, the same would have been taken into account for the purpose of computing pension. It is further not in dispute that those who are junior to the petitioner and joined the Delhi Administration as PGT along with him, their ad hoc services had been taken into consideration for counting the continuous service and regularization thereof.
5. Mr. Jayant Bhushan, the learned counsel appearing on behalf of the respondents, however, would submit that there exists distinction between ad hoc service and temporary service and having regard to the fact that the petitioner's service were not regularized, he would not be entitled to the benefit thereof for the purpose of computation of his retrial benefits.
6. It is not in dispute that the petitioner was appointed as an ad hoc employee against the regular vacancy. It is also not in dispute that when such appointments were made, no rules were in existence at the relevant point of time. The records produced by the petitioner clearly show that had he remained in service, his services would have been regularized. It is not a case where the petitioner was appointed de hors' the rules or his entry into service was a back door one. He was given a regular scale of pay. From his service records, it appears that he had been granted annual increments and he had also been subjected to transfer. He had also been given dearness allowance as also additional dearness allowance, which is otherwise available to a regular employee.
7. The certificate of service dated 13.12.1988 issued by the Director of Education, Delhi Administration is in the following terms:-
"DIRECtorATE OF EDUCATION : DELHI (ESTABLISHMENT II BRANCH) CERTIFICATE OF SERVICE It is certified that Shri Hukum Singh Verma Ex. PGT (Physics) now Wing Commander in Air Force served the Directorate of Education Delhi Administration as PGT (Physics) w.e.f. 29.7.1964 to 28.9.1966 in the pay scale of Rs. 25./- 470 now revised to Rs. 1640 - 2900. He had applied for commissioning in Indian Air Force through proper channel and technical resignation was tendered by him on 29.8.1966 for joining IAF. He was relived on 28.9.1966 on acceptance of technical resignation. The case falls under scope of Article 418 (b) CSR and also under the provisions of Rule 26 (2) of CCS (Pension) for pensionary benefits. The liability of financial effects of pension lies with defense and not with Delhi Administration vide Govt. of India Order No. 3 below Rule 26 of CCS (Pension) Rule, 1972.
Dated : 13.12.1988 (D.S. NEGI) DIRECtor OF EDUCATION DELHI ADMINISTRATION DELHI."
8. The Additional Director of Education (Admn.) also in a letter addressed to the Commanding Officer, No. 54, SU Air Force, C/o 56 APO stated:-
"In reference to No. 54, SU, Air Force, C/o 56 APO letter No. 54SU/10712/1/P2 dated 19th January, 1989, it is clarified that the ad hoc service rendered by the Wing Commander Hukum Singh Verma, Ex-PGT (Physics) under this Directorate w.e.f. 29th July, 1964 to 28th Sept., 1966 is considered by this Department as continued service of temporary nature. This service would have been regularized in due course of time as per applicability of rules of the Deptt. had he continued in service."
9. The petitioner herein before us has also filed an additional affidavit wherein it was stated:-
"4) that the petitioner has learnt that recruitment rules for PGT's came into force later on either in 1972 or either and services of all those persons who had joined with him or later up to 30.07.1965 as PGT in the said scale were regularized and in 1979 final seniority list was prepared by the Department vide memorandum No. 33-3(1)/79-SC dated 01.08.1979.....
The aforesaid memorandum dated 01.08.1979 reads thus:-
"No. F. 33-3(1)/79 - SC DIRECtor OF EDUCATION (SPECIAL CELL) OLD SECRETARIAT, DELHI.
Dated the 1st August, 1979 MEMORANDUM Subject : Revised Final Seniority list of PGT's (Male/ Female) Administrative Cadre, appointed up to 30th July, 1965 consequent to the judgment in Civil Writ No. 605/1970, Shri Shander Bhan Sharma, (PGT) V/s. Delhi Administration and Others.
In continuation of this Directorate Memorandum of even number, dated the 20th January, 1979, on the subject noted above, the undersigned is directed to say that after considering the objections which were received against the Revised Tentative Seniority list of PGT's (Admn. Cadre) in respect of both Male/Female a revised final Seniority list of PGT's (Male/ Female) Administrative cadre, has been framed keeping in view the judgment P.C.W. No. 605/1970 - in the case of Shri C.B. Sharma, PGT Delhi Administration and others and provisions of the Delhi Directorate Service (Seniority) Rules, 1954. It is accordingly, hereby circulated for information of all concerned.
2. The final Seniority list of PGT's (Male/ Female), circulated vide this Directorate Memorandum No. F. 10(1) / Sc /72, dated the 14th April, 1972, in so far as it relates to the PGT's appointed up to 30th July, 1965, is hereby cancelled.
Sd/-
(P.N. GUPTA) Joint Director of Education (Amn)."
10. It will bear repetition to state that the petitioner was appointed against a vacant regular post. The question as to whether the petitioner's case comes within the purview of circular letter dated 30.08.1966 or not will have to be determined in the aforementioned factual backdrop.
The said circular letter dated 30.8.1966 reads thus:-
"No. 10(4) / 61 / 593-S/D (Pension/ Services) Government of India, Ministry of defense New Delhi, the 30th August, 1966 To The Chief of the Army Staff The Chief of the Army Staff The Chief of the Army Staff Subject : COUNTING OF FORMER CIVIL SERVICE (TEMPORARY AND PERMANENT) FOR MILITARY PENSION 1/GRATUITY PERMANENT COMMISSIONED OFFICERS (INCLUDING THOSE OF THE MNS) Sir,
1. I am directed to say that in partial modification of the provisions of the Ministry of defense letter No. 50(1)/52-D (Pension / Services) dated the 25th March 1957, as amended, the President is pleased to decide that former continuous Government service as civilians in a temporary and / or permanent capacity followed by commissioned service without a break will be allowed to count for retiring pension as a permanent commissioned officer to the extent indicated below:-
(a) Gazetted class I or class II civil service in full;
(b) Non-Gazetted civil service rendered in an appointment the initial pay of which is Rs. 200/- p.m. or more in full;
(c) Non-Gazetted civil service in an appointment the initial pay of which is less than Rs. 200/- p.m. to the extent of 2/3rd .
2. The former civil service will count towards retiring gratuity to the following extent:-
(a) Under New Military Pension Code :
Such civil service counts in full for pension. (vide paragraph 1 above).
(b) Under Old Military Pension Code :
No portion of the civil service will count.
3. The counting of civil service under para 1 and 2 above will be subject to the condition that a total qualifying civil service will not exceed one half of the service counting for pension or gratuity and no pension/gratuity has been drawn in respect of the civil service.
Sd/-
Secretary to the Government of India."
11. Rules 13 and 26(2) of Central Civil Service Pension Rules are as under:-
13. Commencement of qualifying service. --
Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:
Provide further that--
(a) In the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and
(b) In the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity."
"26(2). A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualified."
12. There cannot be any doubt that a question as to whether the services of an employee should be considered for the purpose of computation of the retrial benefits depends upon facts and circumstances of each case. The services of the petitioner at the relevant point of time were governed by the Delhi Education Code. It stands admitted that the appointment of the petitioner was not a backdoor appointment and had the petitioner continued in service, his services would have been regularized as has been done in the case of others.
It was not a case where services of the petitioner were absolutely ad hoc in nature in terms whereof he had no right of regularization. The services of the petitioner were treated ad hoc in nature only for certain purpose, although for all intent and purport, the same was temporary in nature.
Having regard to the fact that according to the Directorate of School Education, the petitioner's services as of right were bound to be regularized, it cannot be said that the same were purely ad hoc in nature. In that view of the matter, we are of the opinion that the respondents were not correct in passing the impugned order.
13. For the views we have taken, this writ petition is allowed and the impugned order is set aside accordingly. The respondents are hereby directed to compute the aforementioned period of the petitioner's service as qualifying service towards his pensionary and other retiral benefits. Such an order shall be passed at an early date and preferable within a period of three months from the date of receipt of a copy of this order.
This writ petition is accordingly disposed of. No costs.