M C. Dhingra
Vs. Union of India & Ors  INSC 190
(5 February 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (2) 463 1996 SCALE (2)321
O R D
have heard counsel for the parties. The appellant while working in the State
Service from January
31, 1948, was selected
as a Railway Magistrate and had taken charge on February 1, 1973. The Government of India had issued a Circular on March 31, 1982 which envisaged with the
concurrence of the State Governments, the following:
The Government of India had been considering in consultation with the State
Governments, the question of sharing on a reciprocal basis, the proportionate pensionary
liability in respect of those temporary employees who had rendered temporary
service under the Central Government/State Governments prior to securing posts
under the various State Governments/Central Government on their own volition in
response to advertisement or circulars, including those by the State/Union Public
Service Commissions and who are eventually confirmed in their new posts. It has
since been decided in consultation with the State Governments f that the
proportionate pensionary liability in respect of temporary service rendered
under the Central Government and State Governments to the extent under the
Rules of the respective Government, will be shared by the Governments
concerned, on a service share basis, so that the Government servants are
allowed the benefit of counting their qualifying service both under the Central
Government and the State Governments for grant of pension by the Government
from where they eventually retire. The gratuity, if any, received by the
Government employee for temporary service under the Central or State
Governments will, however, have to be refunded by him to the Government
Government servants claiming the benefit of combined service in terms of above
decision are likely to fall into one of the following categories:
Those who having been retrenched from the service of the Central/State
Governments secured on their own employment under State/Central Governments
either with or without interruption between the date of retrenchment and the
date of new appointment;
Those who while holding temporary post under Central/State Government apply for
posts under State/Central Government through proper channel with proper
permission of the Administrative Authority concerned;
Those who while holding temporary post under Central/State Governments apply
for posts under State/Central Governments direct without the permission of the
Administrative Authority concerned and resign their previous post to join the
new appointments under State/Central Governments.
benefit may be allowed to the Government servants in categories (1) and (2)
above. Where an employee in category (2) is required for administrative
reasons, for satisfying technical requirement, to tender resignation on the
temporary post held by him before joining the new appointment, a certificate to
the effect that such resignation has been tendered for administrative reasons
and/or to satisfy a technical requirement to join, with pro-permissions the new
post, may be issued by the authority accepting the resignation. A record of
this certificate may also be made in his service book under proper attestation
to enable him to get this benefit at the time of retirement. Government servant
in category (3) will obviously, not entitled to count their previous service
above arrangement will not apply to the employees of the Governments of Jammu
and Kashmir and Nagaland.
These orders come into force with effect from the date of issue and cases of
all such Government servants retiring on this date and thereafter will be
regulated accordingly. [G.I. Dept.. of Per. & A.R. Letter
No.3(20)Pen.(A)/79 dated 31st
March, 1982 addressed
to all State Governments except Jammu and Kashmir & Nagaland] Note: -
Sharing of pension liability between Central and State Governments has since
been dispensed with effect from 1.4.1987." When the appellant had asked
for proportionate pension computing the previous service, it was denied to him.
Consequently, he filed O.A. No.2335/89 in the Central Administrative Tribunal, New Delhi. By order dated 19.10.1994, it was
dismissed on the ground of delay. Thus, this appeal by special leave.
seen that though that appellant had retired on February 1, 1973, since the question of tagging the previous service
rendered in the State Government on temporary basis and the similar cases are
pending, the Government had taken a decision on March 31, 1982 to tag the previous service for computation of the pension.
Learned counsel appearing for the respondents contended that clause 4 of the abovesaid
Circular is one of the conditions which prescribes that it would be applicable
to the Government servants who retired from that date, namely. March 31, 1982. Since the appellant had retired on
February 1, 1973, he is not eligible. We find no
force in the contention. All the persons who rendered temporary service prior
to their joining the Government of India Service have been given the benefit of
fixation of the pension payable by tagging the temporary service. The cut off
date is arbitrary violating Article 14 of the Constitution of India.
grouped all the similar circumstanced employees, fixing the cut off date and
giving benefit to those who retired thereafter is obviously arbitrary.
similar circumstances, following the ratio in D.S. Nakara & Ors vs. Union
of India [(1983) 1 SCC 305], this Court held in the case of R.L. Marwah vs.
Union of India & Ors. [(1987) 3 SCR 928] that such a restriction is
arbitrary violating Article 14. On the facts and circumstances, we find that
the restriction imposed in clause 4 of the Circular is violative of Article 14.
therefore, unconstitutional. However, the appellant will be entitled to the pro
rate pension from March 1982.
appeal is accordingly allowed. No costs. The respondents are directed to work
out and release the pension of the appellant within a period of six months from
the date of the receipt of this order.