Vs. State of Rajasthan & Anr  Insc 728 (31 October 2006)
Ar. Lakshmanan & Tarun Chatterjee
CIVIL APPEAL No.8127 of 2004 Dr. AR. Lakshmanan, J.
State of Rajasthan is the appellant in Civil Appeal
No.8127/2004. The said appeal was filed by the State of Rajasthan questioning
the validity of the judgment and order dated 30.10.2002 passed by the High
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, in D.B. Civil Writ
Petition no.540/1999, whereby the writ petition filed by the contesting
respondent (R.K. Agrawal) had been allowed and directions had been issued to
the State to pay to the respondent pension for the period commencing 26th July,
1979 to 22nd July, 1982. According to the State, the respondent was not serving
the State Government during that period and, therefore, he is not entitled for
pension for the said period.
Civil Appeal No.8128 of 2004 was filed by the first respondent in C.A.
No.8127/2004 questioning the correctness of the judgment of the High Court
insofar as the non-grant of interest to the contesting respondent. According to
the first respondent Mr. R.K. Agrawal, the High Court has failed to appreciate
that the delay caused by the appellants are more than 20 years in the payment
of pension and/or pro-rata benefits to the first respondent was without any
fault of the first respondent and as such the first respondent was entitled to
interest and damages thereon. The first respondent has claimed 18% interest per
annum for the non payment.
apart, the first respondent herein and the appellant in CA no.8128/2004, in his
writ petition before the High Court, has specifically raised in paragraph 7 for
the grant of pro-rata pension admissible to him in terms of Rule 158 of the
Rajasthan Service Rules and in support of said contention, decision nos.5 &
6 thereunder was relied on for the period rendered by him under the Government
of Rajasthan. Our attention was also invited to the relevant part of the
governing Decision no.5 and the extract of Decision no.6 for the sake of
enabling this Court to correctly appreciate the import and purport thereof. For
the sake of convenience, we reproduce relevant portion of the Govt. Order No.F.1(48)
F.D. (Rules)/68 dated 10.4.1969, Para
4, Sub Para (iii) A :
The Provisions contained in Clause (i) and (ii) above shall not apply to a
Government Servant transferred to Public Enterprises under the control of the
Govt. of India.
shall, however, on his permanent absorption, be entitled to:- A. Pension
Pension and/or Gratuity as admissible under the Rajasthan Service Rules for
service rendered by him under the Government at the end of period of five years
of his absorption, provided that if the Govt. Servant concerned, attains the
age of superannuation, within these five years, he shall be entitled to receive
the benefits, from the date of superannuation. He shall not be entitled to
family pension under the Chapter XIII, XIIIA and XIV of the Rajasthan Service
lieu of monthly pension admissible under (a) above the Govt. Servant concerned
may opt to receive a lump sum amount worked out with reference to the
commutation table obtaining on the date from which the pension will be
admissible and payable. The option will be exercised from six months of absorption.
Any further liberalisation of pension rules decided by the Govt. after the
permanent absorption of the Govt. Servant under the Public Enterprise would not
be extended to him.
cases where the Govt. Servant at the time of absorption has less than 10 years
qualifying service he will only be eligible to proportionable retirement
Gratuity based on length of service." Extract of Decision no.6 was also
relied on, which is also reproduced herein.
of Decision No.6:
per the order of the FD No.F.1(48) FD (Rules) 68/dated 14.4.70 duly amended,
the Pension and Gratuity admissible under clause (iii) of Decision No.5
reproduced above shall be payable to the concerned employee who has been
transferred to and absorbed in a Public Enterprise under the Govt. of India
after the expiry of two years from such absorption."
to the first respondent, who is also present in the Court, an argument was
advanced before the High Court in terms of Rule 158 of the Rajasthan Service
Rules and that the High Court has not rendered any finding on the said
the High Court has also not considered the relevance of Rules 13, 17 & 18
of the Rajasthan Service Rules, which was specifically raised by the learned
counsel appearing for the State of Rajasthan before the High Court. It was submitted that the first respondent
herein could not claim the pension for the period in question, namely 26th
July, 1979 to 22nd July, 1982 nor this period could be counted for qualifying
service because the retaining of the lien is only for the purpose that the
incumbent could revert back to the service of Rajasthan Government, had he not
been confirmed in the services of International Airport Authority, but that
does not entitle him to count this period as qualifying service subsequent to
any date beyond 26th July, 1979.
High Court has also considered two decisions of this Court, one in the case of
Welfare Association of Absorbed Central Government Employees in Public
Enterprises & Anr. vs. Arvind Verma & Ors., reported in AIR 1998 SC
2862 and another in the matter of P.V. Sundara Rajan & Anr., reported in JT
2000 (5) SC 175. We have carefully perused the above two judgments. In our
opinion, both the judgments are not applicable to the facts and circumstances
of this case and are distinguishable on facts and law and wrongly applied by
the High Court to the case on hand.
this Civil Appeal, the State of Rajasthan has also raised several other legal issues in support of their appeal.
According to the learned counsel for the State of Rajasthan, the service of a Government
Servant shall not qualify unless he is appointed and his duties and pay are
regulated by the Government, or under conditions determined by the Government.
He has further argued that for the purpose of sub-rule (1) of Rule 13, the
expression "service" means service under the Government and paid by
that Government from the Consolidated Fund but does not include service in a
non-pensionable establishment, work- charged establishment and service in a
post paid from contingencies, unless such service is treated as qualifying
service by that Government. Though this argument was also raised before the
High Court, no specific finding has been rendered by the High Court on this
of the opinion that since several important issues have not been decided by the
High Court, we have no other option except to set aside the said judgment of
the High Court, impugned in this two appeals, and remit the matter to the High
Court for disposal of the same afresh. As rightly pointed out by the appellant
in Civil Appeal No.8128/2004, the High Court has not considered the delay of 20
years in giving the pension and pro-rata benefits. If the delay is attributable
to the Government, the appellant is always entitled for the interest. We
request the High Court to consider this point also with reference to the
pleadings raised by the parties to this action. Since the matter is pending
before one forum or the other for more than two decades, we request the High
Court to dispose of the writ petition by a Division Bench within three months
from today. Both parties are at liberty to file additional documents before the
the appeals are disposed of accordingly. No costs.