Full Judgment Text
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PETITIONER:
R.L. MARWAHA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT12/08/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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 spon-
sored 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 employ-
ees who were permanent at the time of their absorption in
the autonomous body.
By an order dated 29th August, 1984, the Central Govern-
ment 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 Govern-
ment, 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
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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 pur-
poses 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 Gov-
ernment order if Paragraph 7 of that order is applied to
him. The result will be that whereas in the first case there
is pensionary 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 conces-
sion 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 ren-
dered 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]
JUDGMENT:
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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 Rehabilita-
tion, 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 pension-
ary liability in cases like that of the petitioner and that
there were no rules authorising the ICAR to accept the
charge of pensionary liability in respect of the period of
his service rendered in the Central Government.
Under the orders which were in force in 1984 the posi-
tion 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
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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 Govern-
ment 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 Admin-
istrative 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 Cent-
933
ral 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 pensionary 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
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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 serv-
ice 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 em-
ployees 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 pen-
sioners---one class of pensioners who had retired prior to
the date of the Government order and another class of pen-
sioners who had retired subsequent to the date of the Gov-
ernment 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 Commis-
sioner, 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 Govern-
ment 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 Govern-
ment 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 satis-
fied 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
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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 pen-
sion 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 pen-
sion. 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 serv-
ice 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 bene-
fit of the service put in by him under the Central Govern-
ment 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 pensionary 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 Governmentorder 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 opera-
tion 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
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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 differ-
ence 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.
937