Shri S.R. Dutta vs The Secretary Ministry Of ...
2007 Latest Caselaw 2318 Del

JUDGMENT

Vipin Sanghi, J.

1. This petition under Article 226 of the Constitution of India is directed against the order dated 28.6.1999 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 1992/97 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. 3 i.e. Ministry of Industry on temporary basis as Lower Division Clerk (LDC) on 24.3.1956. In 1964 he was transferred to the Ministry of Agriculture. He applied for the post of Inspector in the Central Fisheries Corporation Ltd.(CFCL for short), a Central Public Sector Undertaking(PSU for short) under the Ministry of Agriculture, through proper channel. Permission was granted and pursuant to his selection order, he tendered his technical resignation and joined the CFCL.

3. Petitioner requested the respondent for grant of pro-rata pensionary benefits on the basis of the service rendered by him with the Respondents. However his claim was rejected vide respondent's letter dated 27.2.1997. In this background, petitioner preferred the aforesaid O.A. No. 1992/97 before the Tribunal praying for grant of pro-rata pensionary benefits.

4. The petitioner had relied upon DOPT OM No. 28016/5/85-Estt.(C) dated 31.1.86 whereby the requirement of holding a permanent post had been done away with. The Tribunal concluded that the aforesaid OM could not come to the aid of the Petitioner since the same had been specifically made effective from 6.3.1985. The Tribunal also relied upon the Supreme Court decision in Union Of India v. V.R. Chadha reported as , wherein it was held that the petitioner not having been absorbed in the PSU in public interest, the benefit of T.S. Thiruvegadam v. Secretary to Government of India and Ors. 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 28.6.1999.

5. It may be noted that at the time when the Petitioner had joined service there was no provision for allowing pro-rata pensionary benefit. Subsequently, vide OM dated 16.6.67, permanent Central Govt. Employees on deputation/transfer to PSUs upon their permanent absorption in a PSU in public interest, were made eligible for receiving pro-rata pensionary benefits. However, this benefit was restricted only to those who were absorbed on or after June 16, 1967. There were two more OMs dated 8.11.68 and 21.4.72 on the subject leading to D.O.P.T. O.M. No. 28016/4/76-Estt(C) dated 25.3.1977 whereby Govt. Servants who were deputed/transferred and then absorbed, or had joined of their own volition in a PSU, on or after 8.11.1968 were made eligible for pro-rata retirement benefits. However the actual financial benefits were allowed only from 1.8.1976. 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 8.11.1968 was obliterated. However, the cut-off date of 8.11.68 was still maintained to make eligible those employees who had joined the PSU of their own volition. The categorization 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 3.1.1995, extending the benefit of prorata pension to even those Government servants, who had joined Public Sector Undertakings prior to 16.6.67 subject to certain conditions.

6. In Union of India and Ors. v. O.P. Sharma and Anr. 2002 III AD (Delhi) 37, prorata pensionary benefit has been extended by this Court even to a person who had moved to PSUs prior to 8.11.1968 of his own volition. In the said case 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. One of us (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 up to 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, 1972.

7. The above passage was quoted with approval in Shri K.K. Dhir v. Union of India and Ors. W.P.(C) No. 5562/2002, also decided by a division Bench of this Court on 24.11.2006. In the said decision it was observed that:

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 fulfillls 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 1991. 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.

8. It was held that the relaxation introduced by these OM?s would be applicable to all such Government servants who joined PSUs even before such arbitrarily fixed cut off dates, irrespective of a declaration of their move being in Public Interest having been made or not, would be entitled to prorata pension. Thus, the Tribunal clearly fell in error on both counts, i.e., insisting on a declaration that the joining was in public interest and that the OM dated 31.1.86 would not be applicable to the Petitioner.

9. We may also note the GOI, DOP and AR, OM No. 28.10.1984 Pension Unit dated the 29th August 1984 paras 3(a)(i), 6 and 7 of which are relevant and read as follows:

(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an Autonomous Body, the service rendered by him under the Government shall be allowed to be counted towards pension under the Autonomous Body irrespective of whether the employee was temporary or permanent in Government. The pensionary benefits will, however, accrue only if the temporary service is followed by confirmation. If he retires as a temporary employee in the Autonomous Body, he will get terminal benefits as are normally available to temporary employees under the Government.

6. These orders will be applicable only where the transfer of the employee from one organization to another was/is with the consent of the organization under which he was serving earlier, including cases where the individuals had secured employees directly on his own volition, provided he had applied through proper channel/with proper permission of the administrative authority concerned.

7. These order will take effect from the date of issue, viz., 29th August 1984. The benefits under these orders should also be extended to all those who had retired prior to the issue of these orders and who are otherwise eligible for the benefit of counting of service there under. The arrears of pension, if any, which become due to the concerned pensioners, would be disbursed to them with effect from 29.8.1984 only and that they would not be entitled to get any relief in respect of the period prior to 29.8.1984.

10. Therefore, the petitioner was clearly entitled to the grant of prorata pensionary benefit.

11. Thus, we allow this petition and the impugned order dated 28.6.1999 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 interest @ 6% per annum for any further delay in making payment. The respondents are also directed to regularly pay the prorata pension henceforth beginning 1.01.2008.