Kumar Jain Vs. Union of India  INSC 351 (11 July 1994)
Singh (J) Kuldip Singh (J) Yogeshwar Dayal (J)
1994 SCC Supl. (2) 548 JT 1994 (4) 507 1994 SCALE (3)160
Judgment of the Court was delivered by KULDIP SINGH, J.- Special leave granted.
appellant joined Central Government service on 2-3- 1974. He was selected for
appointment as Senior Engineer in the National Thermal Power Corporation
(NTPC), a Central Government Undertaking. He joined the NTPC on 31-10-1986.
specific order confirming the appellant in the service of the Central
Government was issued. The question before the Central Administrative Tribunal
(the Tribunal), New Delhi was whether the appellant was entitled to pro rata
pension for the period of his service under the Central Government.
Tribunal answered the question in the negative and rejected the claim of the
appellant on the short ground that the appellant was not a substantive employee
of the Central Government. This appeal by way of special leave is against the
judgment of the Tribunal dated 24-10-1991.
appellant joined the Central Government service on 2-3-1974 as Technical Assistant in the office of the Director
General of Supplies & Disposals and worked there till 12-10-1977. On 13-10-1977 he
joined the Indian Meteorological Department (IMD) as Assistant Meteorologist
after being selected through the Union Public Service Commission. He was placed
on probation for a period of two years. He was permitted to cross the first
efficiency bar on 1-10-1983. While working with the IMD he was
selected for appointment as Senior Engineer in the NTPC. He was required to
resign from the Central Government service for the purpose of joining the NTPC.
The appellant delayed his joining the NTPC because his case for confirmation as
Assistant Meteorologist was under consideration of the Central Government. The
NTPC finally directed the appellant to join on or before 31-10-1986. In the meantime, the appellant was promoted as
Meteorologist Grade-I in the IMD with effect from 22-9-1986 and posted at Pune. However, in order to pursue his case
for confirmation, he decided to forego the promotion. Despite repeated
representations the IMD did not confirm the appellant and, as such, he submitted
his resignation on 21-10-1986 to the IMD. He was relieved on
30-101986 by the IMD and he joined the NTPC on 31-10- 1986. On 11-2-1987 the appellant again represented to the Central
Government requesting for the grant of pro rata pension as he had served the
Government for twelve years and eight months. The Director General, IMD by his
letter dated 11-11- 1987 informed the appellant that since the seniority list
of the cadre of Assistant Meteorologist has been quashed by the Central
Administrative Tribunal, Madras Bench, his case 550 "for confirmation will
be considered according to rules on the basis of revised seniority list when finalised".
Since no decision was taken by the IMD for considerable time, the appellant
approached the Tribunal seeking direction that he should be deemed to be a
substantive employee of the Central Government within the meaning of Rule 13 of
the CCS (Pension) Rules 1972 (the Rules) and, as such, entitled to pension and
other retrial benefits under the rules. As mentioned above, the Tribunal
rejected the prayer.
question whether the appellant is entitled to pro rata pension in respect of
the service for the period of twelve years and eight months rendered by him
under the Central Government depends on the point whether he held the
appointment in the service of the IMD in a substantive capacity. It is not
disputed that the appellant was appointed as Assistant Meteorologist on
13-101977 by way of direct recruitment through the Union Public Service
Commission. Direct recruitment, invariably, is made against permanent
vacancies. It is not the case of the respondents that the appellant was
appointed against a temporary post.
appellant was, therefore, appointed as Assistant Meteorologist against a
permanent vacancy. He was on probation for a period of two years. His crossing
the efficiency bar in October 1983 and further promotion to the higher post in
September 1986 show that he successfully completed his probation period. In any
case it is obvious that the work and conduct of the appellant has, throughout
finding of the Tribunal, that the appellant was working in an officiating
capacity, is solely based on the wording of the order dated 29-3-1984 allowing the appellant to cross the efficiency bar
wherein it was mentioned that the increment was being given to him in the
officiating post of Assistant Meteorologist. We fail to understand how a direct
recruit in the post of Assistant Meteorologist, who joined service in 1977 and
completed his probation in 1979, could be working against an officiating post.
As mentioned above, direct recruitment is always made against permanent
vacancies. A person appointed against a permanent vacancy, completing his
probation period successfully, crossing the efficiency bar and even promoted to
the higher rank, cannot be considered to be working in an officiating capacity.
would be useful to refer to para 4 of the Office Memorandum dated 31-1-1986 which is in the following terms :
benefits : (i) Resignation from government service with a view to secure
employment in a Central public enterprise with proper permission will not
entail forfeiture of the service for the purpose of retirement/terminal
benefits. In such cases, the government servant concerned shall be deemed to
have retired from service from the date of such resignation and shall be
eligible to receive all retirement/terminal benefits as admissible under the
relevant rules applicable to him in his parent organisation."
is not disputed that the appellant resigned from government service with a view
to secure employment in the Central public enterprise with proper permission of
the Central Government. The appellant is, therefore, entitled to the benefit of
the above-quoted Office Memorandum. We may also refer to para 4.1 of the Office
Memorandum dated 28-3-1988 which is reproduced hereunder:
"4.1 Confirmation (a) General (i) Confirmation will be made only once in
the service of an official which will be in the entry grade.
is delinked from the availability of permanent vacancy in the grade. In other
words, an officer who has successfully completed the probation may be
considered for confirmation."
memorandum dated 28-3-1988 came into force with effect from 1-4-1988.
Tribunal came to the conclusion that since the appellant had resigned from the
Central Government service before coming into force of the Office Memorandum
dated 28-3-1988 the same was not applicable in his
is not disputed that the appellant had more than ten years of service under the
Central Government. His service would count as qualifying service for pension
if the provisions of Rules 13 and 49 of the Rules are satisfied.
relevant provision of Rules 13 and 49 are as follows :
Commencement of qualifying service.
to the provisions of these rules, qualifying service of a government servant
shall commence from the date he takes charge of the post to which he is first
appointed either substantively or in an officiating or temporary capacity:
that officiating or temporary service is followed without interruption by
substantive appointment in the same or another service or post.
The amount of pension arrived at on the basis of the above slabs will be
related to the maximum qualifying service of 33 years. For government servants
who, at the time of retirement, have rendered qualifying service of ten years
or more but less than 33 years, the amount of their pension will be such
proportion of the maximum admissible pension as the qualifying service rendered
by them bears to the maximum qualifying service of 33 years. A few
illustrations are. given in the Annexure to this Office Memorandum."
This Court in Baleshwar Dass v. State of U.P.1, interpreted the term
"holding of a post in a substantive capacity" in the following terms
: (SCR head note p. 451) "A person is said to hold a post in a substantive
capacity when he holds it for an indefinite period, especially of long duration
in contradistinction to a person who holds it for a definite or a temporary
period or holds it on probation subject to confirmation. If the appointment is
to a post and the capacity in which the appointment is made is of indefinite
duration, if the Public Service Commission has been consulted and has approved,
if the tests prescribed have been taken and passed, if probation has been
prescribed and has been approved, one may well say that the post was held by
the incumbent in a substantive capacity." (emphasis supplied)
Although the combined reading of the two Office Memorandums reproduced above
support the appellant's contention that he stood confirmed in the post of
Assistant Meteorologist before he resigned the Central Government service but
it is not necessary for us to go into the effect of the two 1 (1980) 4 SCC 226:
1980 SCC (L&S) 531:(1981)1 SCR 449 552 Memorandums. Examining the facts and
circumstances of this case in the light of the law laid down by this Court in Baleshwar
Dass case1, the only conclusion which can be drawn is that the appellant was
working as Assistant Meteorologist in a substantive capacity.
We, therefore, hold that the appellant had been appointed in a substantive
capacity against a permanent post of Assistant Meteorologist and is therefore
entitled to pro rata pension and other terminal benefits in respect of the
service rendered by him under the Central Government.
direct the respondents to compute and pay the pension and other terminal
benefits due to the appellant under the rules and all other relevant
orders/regulations, within three months of the receipt of this judgment. The
appellant shall be entitled to 12% interest on the arrears of payment to which
he becomes entitled as a result of this judgment.
allow the appeal in the above terms and set aside the judgment of the Tribunal.
The appellant shall be entitled to his costs which we quantify as Rs 10,000.