R.L.
Marwaha Vs. Union of India & Ors [1987] INSC 210 (12 August 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) SINGH, K.N. (J) CITATION: 1987 SCR (3) 928
1987 SCC (4) 31 JT 1987 (3) 292 1987 SCALE (2)245
ACT:
Pensionary
benefits to Central Government employees permanently absorbed in Central
autonomous bodies and vice versa-Counting of service rendered prior to such
absorption for computing qualifying service for purposes of
pension--Applicability of Central Government order dated 29th August, 1984 to
persons who retired from service prior to that date.
HEADNOTE:
The
petitioner who had served in a temporary capacity in a pensionable
establishment of the Central Government for 3 years prior to his absorption in
an autonomous body sponsored by the Central Government, retired from the
service of that body in 1980, and was not allowed to count his service under
the Central 'Government for purposes of pensionary benefits, since, according
to the then existing orders, that benefit was confined only to such Central
Government employees who were permanent at the time of their absorption in the
autonomous body.
By
an order dated 29th August, 1984, the Central Government decided inter alia
that where a Central Government employee borne in a 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, subject, however, to the condition that the pensionary benefits
would accrue only if the temporary service is followed by confirmation. In
paragraph 7 of the said order it was stated that the order would take effect
from the date of its issue.
The
petitioner questioned the validity of the condition imposed in paragraph 7 of
the order dated 29th August, 1984 making it applicable only to such of the
employees of the Government/autonomous bodies who retired from service after the
date of the issue of the order.
Allowing
the petition, 929
HELD:
Paragraph 7 of the Government order dated 29th August, 1984 cannot be used
against persons in the position of the petitioner to deny them the benefit of
the past service for purposes of computing the pension. [936C-D]
2.
There has been a continuous mobility of personnel between Central Government
departments and autonomous bodies both ways and the Government thought that it
would not be just to deprive an employee who is later on absorbed in the
service of the autonomous body the benefit of the service rendered by him
earlier in the Central Government for purposes of computation of pension and
similarly the benefit of service rendered by an employee who is later on
absorbed in the Central Government service the benefit of the service rendered
by him earlier in the autonomous body for purposes of computation of pension.
If that was the object of issuing the Government Order dated 29th August, 1984,
then the benefit of that order should be extended to all pensioners who had
rendered service earlier in the Central Government or in the autonomous body as
the case may be with effect from the date of the said Government order.
[935A-C]
3.
Now let us take the case of a person who had rendered service under the Central
Government between January 1, 1953 and July 1, 1955 but who has retired from
service of an autonomous body in 1985. There is no dispute that such a person
gets the benefit of the service put in by him under the Central Government for purposes
of his pension. But another pensioner who has put in service under the Central
Government during the same period will not get similar concession if he has
retired prior to the date of the Government order if Paragraph 7 of that order
is applied to him. The result will be that whereas in the first case there is
pensioner liability of the Central Government in the second case it does not
exist although the period of service under the Central Government is the same.
The discrimination arises on account of the Government order. [935C-E]
4.
There is no substance in the plea that this concession being a new one it can
only be prospective in operation and cannot be extended to employees who have
already re- tired. It is true that it is prospective in operation in the sense
that the extra benefit can be claimed only after 29th August, 1984. But it
certainly looks backward and takes into consideration the past event that is
the period of service under the Central Government for purposes of computing
qualifying service because such additional service can only be the service
rendered prior to the date of issue of the Government order. By doing so the
Government order will 930 not become an order having retrospective effect. It
still continues to be prospective in operation. Whoever has rendered service
during any past period would be entitled to claim the additional financial
benefit of that service if he is alive on 29th August, 1984 under the
Government order but with effect from 29th August, 1984. [935H; 936A-C]
5.
The respondents have not furnished any acceptable reason in support of their
case, except saying that the petitioner was not entitled to the benefit of the
Government order because the order says that it would not be applicable to
those who had retired prior to the date on which it was issued. In the absence
of any explanation which is worthy of consideration it has to be held that the
classification of the pensioners who were working in the Government/autonomous
bodies into two classes merely on the basis of the date of retirement is
unconstitutional as it bears no nexus to the object to be achieved by the
order. [935F-G]
Original
Jurisdiction:
Writ Petition No. 3739 of 1985. (Under Article 32 of the Constitution of
India).
A.K.
Goel and Ajit Pudiserry for the Petitioner. B. Datta, Additional Solicitor'
General, P.P. Singh and Miss A. Subhashini for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The question involved
in this case is whether an employee of an autonomous body established under the
auspices of the Central Government is entitled to claim the benefit of the
period of service rendered by him in a pensionable post under the Central
Government prior to his service being absorbed in the autonomous body for computing
qualifying service for purposes of pension.
The
petitioner R.L. Marwaha entered the service of the Central Government on a
temporary basis on 4.10.1950 and worked as an Upper Division Clerk in the pay
scale of Rs.80-5-120-8-200-10/2-220 in the office of the Settlement
Commissioner (Claims Wing) under the Ministry of Rehabilitation, Union of India
and he continued to hold that post upto 23.11. 1953 (F.N.). He, having been
appointed in the Indian Council of Agricultural Research (hereinafter referred to
as 'the ICAR'), which is an autonomous body sponsored by the Central 931
Government, to a higher post of Assistant in the scale of pay of Rs. 160-450
joined the service of the ICAR as a fresh entrant on the same date that is
23.11.1953 (F.N.). He was not allowed to carry forward the leave that he had
earned and was declared quasi-permanent as an Assistant in the ICAR with effect
from 17.1.1957. The post held by the petitioner under the Central Government
before he entered the service of the ICAR was a pensionable post and the post
or posts held by him in the ICAR were also pensionable posts. The petitioner
retired from the service of the ICAR on September 30, 1980 after attaining the
age of superannuation, i.e., 58 years. On retirement the petitioner was accorded
pensionary benefits reckoning his qualifying service from 23.11.1953 to
30.9.1980. The petitioner, as some others who had also retired from the service
of the ICAR had been agitating before the authorities to count the period of
service put in by him between 4.10.1950 and23.11. 1953 in the Central
Government as part of the qualifying service and to compute his pensionary
benefits on that basis. The petitioner had applied to the ICAR even before his
retirement requesting it to count his service in the Central Government as part
of his qualifying service for pension. The petitioner received a reply from the
ICAR stating that according to the then existing policy the Government had not
accepted any pensioner liability in cases like that of the petitioner and that
there were no rules authorising the ICAR to accept the charge of pensioner
liability in respect of the period of his service rendered in the Central
Government.
Under
the orders which were in force in 1984 the position as regards counting of service
rendered elsewhere was as follows:
(i)
Service rendered outside Central Government did not count for pension in
Central Government.
(ii)
In the case of scientific employees of autonomous bodies financed or controlled
by the Government, however, such employees were allowed to count their previous
service in such autonomous bodies or permanent absorption under the Central
Government subject to certain conditions.
(iii)
In respect of personnel other than scientific employees who were permanent in
Central Government in the event of their subsequent permanent absorption in
public sector undertakings or any autonomous body proportionate retirement
benefits for the service rendered in Government till the date of permanent
absorption were allowed as per rules in force at the time of absorption.
932
(iv) No such benefit as provided in para (iii) above was allowed to temporary
employees going over to autonomous bodies or undertakings.
In
the meanwhile Central autonomous/statutory bodies had also introduced pension
schemes for their employees on the lines of the pension scheme available to the
Central Government employees. Therefore such autonomous/statutory bodies also
started urging that the service rendered by their employees under the Central
Government or other autonomous bodies before joining any autonomous body may be
allowed to be counted in combination with service in the autonomous body
concerned for the purpose of pension subject to certain conditions. There was
also a demand for making similar provisions for employees of autonomous bodies
going over to the Central Government. In other words, the demand was that the
benefit of pension based on the combined service should be introduced. After a
careful consideration of all relevant matters the Central Government passed an
order being No. O.M. No. 28 10 84-Pension Unit dated 20th August, 1984 Ministry
of Home Affairs, Department of Personnel and Administrative Reforms and issued
it on 29.8. 1984. That part of the Government order which is relevant for purposes
of this case is set out in Paragraph 3(A)(i) thereof and it is as follows:
"No.
28/10/84-Pension Unit Government of India Bharat Sarkar Ministry of Home
Affairs Grih Mantralaya Department of Personnel and Administrative Reforms
(Karmik Aur Prashasnik Sudhar Vibhag) New Delhi, the 29th August, 1984.
OFFICE
MEMORANDUM Sub: Mobility of personnel between Central Government Departments
and Autonomous Bodies--Counting of service for pension.
......................................................
3.
This matter has been considered carefully and the President has now been
pleased to decide that the cases of Central Government employees going over to
a Central autonomous body or vice versa and employees of the Central autonomous
body moving to another Central autonomous body may be regulated as per the
following provisions:- (A) In case of Autonomous bodies where pension scheme is
in operation.
(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 pension 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. The same procedure will apply in the
case of employees of the autonomous bodies who are permanently absorbed under
the Central Government.
The
Government/autonomous body will discharge its pension liability by paying in
lump sum as a one-time payment, the pro-rata pension/service gratuity/terminal
gratuity and DCRG for the service upto the date of absorption in the autonomous
body/Government, as the case may be. Lump sum amount of the pro-rata pension
will be determined with reference to commutation table laid down in CCS
(Commutation of Pension) Rules, 1981, as amended from time to time."
Paragraph 7 of the said Government order, however, stated that the order would
take effect from the date of issue of the revised policy and will be applicable
to those employees who retired from Government/autonomous body service on or
after the issue of the said order. Since the petitioner had retired on
30.9.1980 he was not accorded the benefit of that order.
In
this writ petition the petitioner has questioned the validity of the condition
imposed in paragraph 7 of the said order making the order applicable only to
such of the employees of the Government/ autonomous bodies who retired from
service after the date of the issue 934 of the order. The petitioner's
contention is that it was not open to the Government to deny the benefit of the
order to those employees who had retired prior to the date of the order as it
would bring into existence two classes of pensioners---one class of pensioners
who had retired prior to the date of the Government order and another class of
pensioners who had retired subsequent to the date of the Government order and
that such classification was not warranted under Article 14 of the Constitution
as there was no nexus between the classification and the object to be achieved
by the Government order.
The
writ petition is resisted by the respondents--the Union of India and the ICAR.
It is pleaded on behalf of the respondents that the petitioner was not entitled
to count the period of service rendered by him under the Government of India as
a part of his qualifying service for purposes of pension since he was only a
temporary Government servant when he was working in the office of the
Settlement Commissioner, that he had joined the service of the ICAR as a fresh
entrant and that there was no Government policy which entitled the petitioner
to count the period of his Government service as part of qualifying service for
pension before the Government order dated 29.8.1984 was passed. The fact that
the petitioner was a temporary Government servant when he was working in the
Central Government is immaterial because the Government order itself says that
the service rendered by a Central Government employee under the Government
would be allowed to be counted towards pension under the autonomous body
irrespective of whether the employee was temporary or permanent in Government
provided he is later on confirmed in the autonomous body. This condition is
satisfied in this case. It is admitted that the petitioner was treated as a new
entrant when he joined the service of the ICAR on the same day on which he
ceased to be the employee of the Central Government. But the fact that the
petitioner joined the service of the ICAR as a new entrant cannot again be an
impediment for extending the benefit of the Government order dated August 29,
1984 because every employee who leaves the service of the Central Government to
join the service of the ICAR has to be treated as a new entrant at the ICAR
because it is not a department of the Central Government but a registered body.
In fact there cannot be a transfer to the ICAR from the Central Government.
There is no substance in this contention of the respondents.
There
is no dispute that the ICAR though it is a body registered under the Societies
Registration Act, 1960, is a body which is sponsored, financed and controlled
by the Central Government. There 935 has been a continuous mobility of
personnel between Central Government departments and autonomous bodies, like
the ICAR both ways and the Government thought, and rightly so, that it would
not be just to deprive an employee who is later on absorbed in the service of
the autonomous body, like the ICAR the benefit of the service rendered by him
earlier in the Central Government for purposes of computation of pension and
similarly the benefit of service rendered by an employee who is later on
absorbed in the Central Government service the benefit of the service rendered
by him earlier in the autonomous body for purposes of computation of pension.
If that was the object of issuing the notification then the benefit of such
notification should be extended to all pensioners who had rendered service
earlier in the Central Government or in the autonomous body as the case may be
with effect from the date of the said Government order.
Now
let us take the case of a person who had rendered service under the Central
Government between January 1, 1953 and July 1, 1955 but who has retired from
service of the ICAR in 1985. There is no dispute that such a person gets the
benefit of the service put in by him under the Central Government for purposes
of his pension. But another .pensioner who has put in service under the Central
Government during the same period will not get similar concession if he has re-
tired prior to the date of the Government order if Paragraph 7 of that order is
applied to him. The result will be that whereas in the first case there is Pensioners
liability of the Central Government in the second case it does not exist
although the period of service under the Central Government is the same. This
discrimination arises on account of the Government order. There is no
justification for denying the benefit of the Government order to those who had
retired prior to the date on which the Government order was issued.
The
respondents have not furnished any acceptable reason in support of their case,
except saying that the petitioner was not entitled to the benefit of the
Government order because the order says that it would not be applicable to
those who had retired prior to the date on which it was issued. In the absence
of any explanation which is worthy of consideration it has to be held that the
classification of the pensioners who were working in the Government/ autonomous
bodies into two classes merely on the basis of the date of retirement as
unconstitutional as it bears no nexus to the object to be achieved by the
order.
We
do not also find much substance in the plea that this concession being a new
one it can only be prospective in operation and cannot be extended to employees
who have already retired. It is true that it is prospective in operation in the
sense that the extra benefit can 936 be claimed only after 29.8.1984 that is
the date of issue of the Government order. But it certainly looks backward and
takes into consideration the past event that is the period of service under the
Central Government' for purposes of computing qualifying service because such
additional service can only be the service rendered prior to the date of issue
of the Government order by doing so the Government order will not become an
order having retrospective effect. It still continues to be prospective in
operation. Whoever has rendered service during any past period would be
entitled to claim the additional financial benefit of that service if he is
alive on 29.8.1984 under the Government order but with effect from 29.8.1984.
In
the result we hold that paragraph 7 of the Government order cannot be used
against persons in the position of the petitioner to deny them the benefit of
the past service for purposes of computing the pension.
We,
therefore, direct the respondents to revise the pension payable to the
petitioner in accordance with the Government order by giving him the benefit of
the service rendered by him in the Central Government while computing his
qualifying service for pension. We, however, make it clear that the petitioner
is entitled to recover the difference between the pension which he is entitled
to get in accordance with the Government order and the pension which is already
disbursed to him with effect from 29.8.1984, i.e., the date of the Government
order only and he is not entitled to get any relief in respect of the period
prior to August 29, 1984.
The
writ petition is accordingly allowed. No costs.
Petition
allowed.
H.L.C.
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