Edwin Singh vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 910 Del

JUDGMENT

Gita Mittal, J .

1. The petitioner seeks computation of his formal service rendered with the G.R.E.F. of the Border Roads Organisation as Vehicle Mechanic with effect from 6th September, 1962 on contract basis till his discharge with effect from 6th September, 1965 to the service rendered by him upon his regular appointment with the organisation with effect from 23rd March, 1966 till superannuation on 30th November, 1993 for the purposes of award of his pensionary benefits. The respondents have rejected the request made by the petitioner for such computation, placing reliance on extent rules.

2. The petitioner was admittedly appointed in the Boarder Roads Organisation initially on contract basis for a period of three years with effect from 6th September, 1962. On completion of the contracted period, he was discharged from the service pursuant to the Discharge Certificate issued on 4th September, 1965 with effect from 6th September, 1965.

3. Having regard to the experience gained by the petitioner in the service rendered by him on contract basis, the petitioner was appointed with the respondents as a Vehicle Mechanic with effect from 23rd March, 1966. However, he was declared as a permanent incumbent in the service only on the 30th March, 1976.

4. It is pointed out by the petitioner that when he was appointed on contractual basis, he was entitled to only the minimum basic pay of the post of Vehicle Mechanic and, accordingly, received pay at the rate of Rs.110/- per month which was the lowest of the scale. Upon appointment on regular basis, he became entitled to the pay scale of Rs.110-3-131-4-143-EB-4-155. As the respondents had given the petitioner the benefit of his three years of contractual service, his pay was fixed at Rs.116/- as basic instead of Rs.110/-

5. Against this, the petitioner contends that, on his superannuation with effect from 30th November, 1993, the service rendered by him on contract basis from 6th September, 1962 to 6th September, 1965 has not been counted for the purposes of computation of the pensionary benefits to which he is otherwise entitled. The petitioner contends that this action of the respondents in ignoring such contractual service rendered by him for the purposes of fixing of pay and award of pensionary benefits, is arbitrary and untenable. The petitioner further contends that his representation to the respondents in this behalf dated 28th July, 1994 has not been granted. On the contrary, the respondents have denied him his legitimate entitlement on the ground that the petitioner had not deposited his pension contribution and leave salary within the period fixed under the C.C.S. Pension Rules, 1972. The petitioner further contends that the C.C.S. Pension Rules came into force only in the year 1972 whereas the petitioner was appointed on 23rd March, 1966. He was entitled to the period of his service on contract basis being added to the tenure of his service for computation of his pension benefits. The petitioner contends that Rule 17 of the said rules relied upon by the respondents could be applied only to such persons who joined service after 1972.

6. The original service records of the petitioner have been placed before us. Detailed submissions in this behalf have been made in the counter affidavit filed by the respondents. The records show that though the petitioner was appointed as a Vehicle Mechanic with effect from 23rd March, 1966, he was declared as a confirmed incumbent in the organisation only on 30th March, 1976. An entry to this effect was recorded in his service book.

7. The respondents contend that the petitioner confirmed the same on inspection of the service book which was shown to him in accordance with Service Regulations 202 issued by the Government of India which gives instructions with regard to the records of service.

8. Perusal of the service book supports the respondents' submission that the entries in the service book were periodically and duly shown to the petitioner. The petitioner had perused the service book on 12th July, 1978 and had made an entry with his signatures in the service book to this effect.

9. So far as the request of the petitioner for counting the period of his contractual service towards his permanent engagement is concerned, the respondents have placed reliance on Rule 17 of the C.S.S. Pension Rules which reads as under:-

"17. Counting of service on contract

(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either-

(a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; or

(b) To agree to refund to the Government the monetary benefits referred to in clause (a) or to forgo the same if they have not been paid to him and counter in lieu thereof the service for which the aforesaid monetary benefits may have been payable.

(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.

(3) If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.

10. No other provision has been brought to our notice on the said issue. Therefore, only a person who is initially engaged by the Government on contract for a specified period and is subsequently appointed on the same or any post in a substantive capacity in a pensionary Establishment without interruption of duty has been given an option under Rule 17 to retain the government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service, or to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forego the same if they have not been paid to them. It is only upon the second option being exercised by the employee that he becomes entitled to the inclusion of the period of contractual service towards the period to be computed towards pensionable service.

11. The rule also mandates that the option is to be exercised within a period of three months from the date of issue of the order of permanent transfer to pensionable service. In the event of the employee being on leave on that date, he may exercise the option within three months on his return from leave, whichever is later.

12. As per Rule 17, in the event that no communication is received by the Head of Office within the aforestated period, the employee shall be deemed to have opted for the retention of the mandatory benefit payable or paid to him on account of service rendered on contract.

13. In the instant case, there is no dispute that the petitioner did not communicate or exercise the option under Rule 17 (1)(b) of the CCS Pension Rules. The petitioner seeks to avoid the rigors of the rule on the plea that the CCS (Pension) Rules took effect or came into force after the date of his joining the service. It is not disputed that the Rules were in vogue and the respondents have implemented the same in the case of all benefits of the petitioner. The petitioner was confirmed on the 30th March, 1976 when the Rules were in force. The submission that the Rules were not applicable to the case of the petitioner has no legal basis. Since the petitioner did not exercise his option within the period of three months of 30th March, 1976, that is, by 30th June, 1976, as prescribed by Rule 17(3), it was deemed that the petitioner had opted for retention of the monetary benefits paid to him or which may be paid to him for his contractual service. Thereby, the petitioner became disentitled to addition of the period of contractual service to his pensionable service for the award of pension benefit.

14. We also find force in the respondents' contention that the petitioner, for the first time, made his request on 29th September, 1994. The respondents duly informed the petitioner of the position as per their records as well as the rule position. The submission of the petitioner that he has not received any benefit against his contractual service loses force in view of such contingency having been envisaged under Rule 17 which covers both the eventualities where a person has been granted his benefits on the expiry of a contractual period as well as an instance where a person had not been so granted. There is no method by virtue of which an employee could avoid exercise of the option in view of deeming provision provided under Rule 17.

15. It is also noteworthy that the petitioner's service as on contract and his regular appointment was not without interruption. There was a gap of more than six months between the expiry of his contractual service and his subsequent appointment in substantive capacity with the Border Roads Organisation. For this reason as well, the petitioner was not entitled to the benefit of the service rendered on contractual basis for the purposes of computation of his pensionary benefits. The petitioner has, throughout his service career, shown the date of his appointment as per 3rd March, 1966 and has even submitted Form 3 to the authorities which is placed on record as annexure R-3 giving this date as the date of his appointment and all particulars.

16. During the course of arguments, a half hearted challenge was made to the recorded date of birth of the petitioner. There is no such plea in the writ petition. The respondents have also pointed out that as per the service records, the date of birth of the petitioner was duly recorded. The petitioner himself had filled up the Trade Test Sheet and medical form mentioning his date of birth as 19th November, 1935. Furthermore, in Form 3 which is filled up at the time of initiation of the pension paper, the petitioner had filled up the same with detailed information as well as an undertaking with regard to his date of birth being 19th November, 1935. Copies of these documents have been placed on record. We have also been taken through the original service record of the petitioner. We have no manner of doubt that the date of birth of the petitioner as appears in the records is based on the information given by the petitioner himself and the same has been recorded correctly.

17. In view of the aforesaid, we find no merit in the writ petition and the same is hereby dismissed. There is no order as to costs.