Delhi High Court
Devinder Nath Narula vs Union Of India on 16 July, 2015
Author: S.Ravindra Bhat
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 16.07.2015
+ W.P.(C) 6660/2003
DEVINDER NATH NARULA ..... Petitioner
Through : Sh. A.P. Nagrath, Advocate.
versus
UNION OF INDIA ..... Respondent
Through : Sh. J.K. Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The review petitioner seeks direction for inclusion of two periods of
service in the employment of state agencies of the Government of Punjab,
i.e. between 01.12.1953 and 01.01.1955 as Panchayat Secretary and between
23.02.1960 and 23.12.1960 as Assistant Hostel Warden in the Punjab
Polytechnic at Nilokheri in erstwhile Punjab, for pensionary purposes by the
Railway Protection Force (RPF) which he subsequently joined after
selection.
2. The petitioner's original claim in these proceedings was disposed off
on 05.03.2014 with the following direction:
"4. Now, if the petitioner wants the two services to be counted
as pensionary service he has to first approach the State of
Haryana or Punjab which would proportionately make the
W.P.(C) 6660/2003 Page 1
payment to the Railway Protection Force and thereupon the
Railway Protection Force would do the needful. Since this has not
happened we permit the petitioner, as prayed by counsel to
withdraw the petition and simultaneously permit the petitioner to
make a representation to the State of Haryana/Punjab on the
subject of the two periods of aforesaid service rendered by him to
be reckoned as pensionable service so that the State could make
the contribution of the necessary sum to the Railway Protection
Force, to be credited in the pension account and thereafter revised
pension be paid to the petitioner treating length of service as
inclusive of the two periods of service above noted."
3. Subsequently, the petitioner moved Review Petition No.179/2014,
relying upon the Office Memorandums (OM) dated 09.10.1986 and
05.12.1989. It was contended that the combined effect of these OMs is that
those who joined the Central Government employment after having served
with a State Government would be entitled to reckon the previous
period/periods of employment for the purpose of pensionary benefits. Taking
note of these OMs, the petitioner's review was accepted on 23.05.2014.
4. Learned counsel relies upon OM dated 09.10.1986 which recounts
appointment of a Committee to review the existing rules and to
simplify/rationalize them. The Committee pointedly addressed itself to the
issue of allocation of leave, service, salary and pension on a proportionate
basis to those absorbed in either's employment after having served with the
State/Central Government as the case may be.
5. The relevant part of the said O.M. reads as follows:
"2. Pursuant to the above, it has been decided in consultation
with the State Governments to dispense with the system of
allocation of Leave salary and pension between Central and State
Governments as specified below:
W.P.(C) 6660/2003 Page 2
(a) Leave Salary - The existing system of allocation or sharing of the
liability on account of leave salary contributions by Central
Government to State Governments or vice versa will be dispensed
with. The liability for leave salary will be borne in full by the
Department from which the Government servant proceeds on
leave, whether it be his parent Department or a borrowing
Department with whom he is on deputation.
(b) Pension - The liability for pension including gratuity will be borne
in full by the Central/State Department to which the Government
servant permanently belongs at the time of retirement. No
recovery of proportionate pension will be made from Central/State
Government under whom he had served."
6. Learned counsel for the petitioner also relies upon the subsequent
O.M. dated 05.12.1989 which clarifies that the 09.10.1986 O.M. applies to
all cases,"where the system of apportionment of pension liability was in
vogue prior to its issue, i.e. in respect of both permanent and temporary
employees of the Central/State Government as the case may be." It is thus
contended that these circulars/O.Ms entitle the petitioner to claim that the
two periods of services spent with the Punjab Government ought to be
included for the purpose of pension fixation etc. and other consequential
benefits.
7. Learned counsel for the RPF resists the claim and submits that a bare
reading of the introductory part of the OM dated 09.10.1986 shows that it
applied only where deputationists were sought to be absorbed to the Central
Government. He also relied upon an earlier OM dated 31.03.1982, to say
that where an individual secures employment with the Central Government
or any of its departments without obtaining approval of the previous State
employers, he cannot claim inclusion of past service for the purpose of
pension.
W.P.(C) 6660/2003 Page 3
8. This Court proposes to deal with both the contentions of the
respondent, in reverse order. From the facts apparent on the record, the
petitioner did not resign from his services of Punjab Government in either
instance where he worked (either in the Panchayat office or Punjab
Polytechnic at Nilokheri); rather the tenure of his engagement/employment
ended. Nevertheless, he did serve Punjab Government for over two years.
Consequently, the submission of the respondent that permission of the
previous employer has not been obtained and that this disentitled him to
claim inclusion of his past service for the purpose of pension is meritless. So
far as the other contention, i.e. OMs dated 09.10.1986 and 05.12.1989 are
applicable or restricted only in the case of deputationists who are eventually
absorbed by the Central Government is concerned, the tenure and the
phraseology employed by the two documents do not bear out such an
argument. In fact, they applied to all cases where employees with the State
Government/Central Government are subsequently absorbed in the other, i.e.
State or Central Government, as the case may be.
9. In view of the above conclusion, this Court hereby directs the
respondent to include the said two periods of service claimed by the
petitioner to be in the service of the Punjab Government, i.e. at the
Panchayat office and Punjab Polytechnic at Nilokheri for the purpose of
pension. On the basis of due verification of these periods of service, the
respondent shall pass fresh pension fixation order and disburse the arrears of
pension, taking into account the recommendations of the Fifth and Sixth Pay
Commissions in such cases, as accepted and implemented by the Central
Government. The notional increase in the pension shall be disbursed but
arrears shall be payable for the period 2003 onwards. The writ petition is
W.P.(C) 6660/2003 Page 4
allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
JULY 16, 2015
W.P.(C) 6660/2003 Page 5
