Delhi High CourtUnion Of India (Uoi) And Ors. vs Sh. O.P. Sharma And Anr. on 11 February, 2002Equivalent citations: 2002IIIAD(DELHI)37Author:A.K. SikriBench:S.B. Sinha,A.K. SikriJUDGMENT
           

  A.K. Sikri, J.1.  The  respondent No.1 joined as Accounts  Clerk
           in  the  Jammu Division of CPWD on 8th November,  1947.
           He  was declared quasi permanent on 1st February,  1951
           and  remained  with  CPWD  till  30th  September,  1961
           where after he joined the services with ONGC as a Junior
           Accountant.   He  was ultimately absorbed in ONGC  from
           where he retired on 30th June, 1984.2.                    Since,  according  to the respondent No.1,  he
           worked   for   more   than     ten   years   with   the
           petitioner/CWPD, he was entitled to prorata pension and
           other retirement benefits from the petitioners.  As the
           petitioners  refused  to give him any such benefit,  he
           filed OA No.1275/2000 before the Central Administrative CWP NO: 5871/2001:Tribunal, Principal Bench, New Delhi.  This OA has been
           allowed  vide  impugned judgment dated  20th  December,
           2000.3.                    Feeling  aggrieved, the petitioners have filed
           the   instant  petition  underArticle  226of   the
           Constitution of India.4.                    It  may be mentioned that the learned Tribunal
           while  allowing  the OA filed by the  respondent  No.1,
           relied  upon OM dated 10th November, 1960 issued by the
           Ministry  of  Finance,  Govt.  of India  which  permits
           grant  of  prorata pension to those Central  Government
           servants  who  had  proceeded on deputation  with  some
           Public  Sector  Undertaking(for  short   `  PSU')   and
           subsequently got absorbed in the said PSU.5.                    The  learned  Tribunal  also  noted  that  the
           aforesaid  OM  was subsequently followed by another  OM
           dated  16th  June,  1967   which  provided  that  those
           absorbed  in PSUs etc.  after 16th July, 1967 would  be
           entitled  to prorata pension and DCR Gratuity but  this
           was  conditional on the transfer of government servants
           to  the PSUs etc.  being in the public interest.   Thus
           public  interest remained the guiding factor up to  this
           stage.   However,  after consideration  the  government
           removed  this condition of absorption by the PSU in the
           public interest and by DOPT's OM dated 21st April, 1972
           laid  down that those appointed in PSUs etc.  on  their
           own  application will also be governed by the aforesaid
           orders  of the Ministry of Finance dated 8th  November,
           1968,  the effect of which would be to give benefit  to
           those who were absorbed permanently in PSUs on or after
           21st  April,  1972.   In this connection,  the  learned
           Tribunal also noted Rule 37 of CCS(Pension) Rules, 1972
           which reads as under:"A   Government  servant   who  has  been
                      permitted  to be absorbed in a service or
                      post in or under a corporation or company
                      wholly   or   substantially    owned   or
                      controlled  by the Government or under  a
                      body   controlled  or   financed  by  the
                      Government  shall, if such absorption  is
                      declared  by the Government to be in  the
                      public   interest,  be   deemed  to  have
                      retired  from  service from the  date  of
                      such  absorption and shall be eligible to
                      receive  retirement benefits which he may
                      have  elected or deemed to have  elected,
                      and  from such date as may be determined,
                      in  accordance  with  the orders  of  the
                      Government applicable to him.Provided  that  no declaration  regarding
                      absorption  in  the public interest in  a
                      service   or  post  in   or  under   such
                      corporation,  company  or body  shall  be
                      required  in  respect  of  a   Government
                      servant  whom  the   Government  may,  by
                      order,   declare    to    be   scientific
                      employee."6.                    Interpreting  the aforesaid Rule, the  learned
           Tribunal  stated  that this Rule does  not  distinguish
           between Government servants absorbed in public interest
           and  on  their own application.  The  learned  Tribunal
           noted  that  on this reckoning since his absorption  in
           ONGC  was on 3rd October, 1961 i.e.  much prior to  8th
           November, 1968 he would be covered by the aforesaid OMs
           as  he  was absorbed on his own application and not  in
           public interest.7.                    However,  relying  upon  the judgment  of  the
           Hyderabad  Bench of the Central Administrative Tribunal
           in  the  case of Har Binder Lal Vs.  The  Controller  &
           Auditor General of India & Ors.  (OA 527/87) decided on              
           14th  April, 1988 which was upheld by the Supreme Court
           in  its  order  dated 9th January, 1989 the OA  of  the
           respondent  was allowed.In this judgment rendered  by
           the  Hyderabad  Bench the learned Tribunal applied  the
           ratio  of  the Supreme Court in the case ofD.S.Nakara
           Vs.   U.O.I.   & Ors.and    
           held  that  there cannot be any discrimination  between
           those who joined the Public Sector Undertaking prior to
           8th  November,  1968  and those who  were  absorbed  in
           Public  Sector Undertaking after 8th November, 1968  as
           this  date  of  8th November, 1968  was  arbitrary  and
           without any rationale.8.                    Mr.Adish    C.Aggarwala,     learned   counsel
           appearing  for  the  petitioner  did  not  dispute  the
           aforesaid  position.  However, his only submission  was
           that  the  respondent  No.1  was not  entitled  to  the benefit  of OM dated 10th November, 1960 inasmuch as he
           had  not  put  in  ten years  service  as  a  permanent
           employee.   In support of this submission, the  learned
           counsel took aid of OM dated 3rd January, 1995.9.                    A  reading of OM dated 3rd January, 1995 would
           indicate  that it was issued pursuant to judgment dated
           17th  February,  1993 in Civil Appeal No.666/93 in  the
           case  of  Sh.T.S.Thiruvengadam  Vs.    Union  of  India
           holding  that restricting the benefit of OM dated  16th
           June,  1967 only to those Central Government  employees
           who  were absorbed in PSUs after 16th June, 1997  would
           be  arbitrary.   Para  3 is relevant for  our  purposes
           which reads as under:"The  manner of implementation of Supreme
                      Court    judgment    has    been    under
                      consideration  of the Government for some
                      time  past.  After careful examination of
                      judgment,  the  President  has  now  been
                      pleased  to  decide that the benefits  of
                      O.M.   dated  16th  June,   1967  may  be
                      extended   to  all   Central   Government
                      employees  who  were absorbed in  Central
                      Public  Sector Undertakings prior to 16th
                      June,  1967,  subject  to  the  following
                      conditions:i)  The  absorbee should satisfy all  the
                      terms  and conditions regarding grant  of
                      retirement  benefits as laid down in  the
                      Ministry   of  Finance,   Department   of
                      Expenditure   OM  dated   16.6.1967,   as
                      amended  vide O.M.  No.44(8)/E.V/71 dated
                      19.6.1972.  The question of proportionate
                      pension  will not arise in cases where an
                      officer,  at the time of absorption,  had
                      rendered  less  than 10 years of  service
                      under  Government and was not entitled to
                      pension.   In      such    cases,      he
                      will    only      be     eligible      to    proportionate service gratuity in lieu of
                      pension  and  to D.C.R.Gratuity based  on
                      the length of service.ii) The absorbee should have proceeded to
                      a  Central  PSU  in Public  interest  and
                      absorbed  there  in prior to  16th  June,
                     1967.iii)  The  absorbee should have  received
                      the  retirement benefits as per  Ministry
                      of  Finance,  Department  of  Expenditure
                      O.M.No.F.2(33)/EVA/60     dated      10th
                      November,  1960 viz., an amount equal  to
                      what  Government  would have  contributed
                      had  the  officer  been  on  contributory
                      Provident  Fund  terms under  Government,
                      together  with simple interest thereon at
                      2%  for  the  period of  his  pensionable
                      service  under  Government,  should  have
                      been   credited  to    his   Contributory
                      Provident Fund Account with the PSU as an
                      opening  balance within one year from the
                      date of his/her permanent absorption.Ministry  of Finance, etc., are requested
                      to  settle  the  claims  of  the  Central
                      Government employees who were permanently
                      absorbed  in  the Central PSUs  prior  to
                      16.6.1967  on the above basis, on receipt
                      of  a  formal  request   from  each  such
                      employee.  CPF benefits received in terms
                      of   Ministry  of   Finance  O.M.   dated
                      10.11.1960  have  to be refunded  by  the
                      said  employees  to  Government  together
                      with  interest at the rate applicable  to
                      GPF  Accumulations  on the date  of  such
                      refund  and calculated in the same manner
                      as interest on GPF is worked out."10.                    Clause   (i)  of  the   aforesaid  para   only
           stipulates  that the concerned employee at the time  of
           his  absorption should have rendered not less than  ten
           years  of service under the Government.  It is  nowhere
           stated  that an employee should have rendered ten years
           of  service  as a permanent employee.  In  the  present
           case  the  respondent  No.1  had  joined  CPWD  on  8th
           November,  1947 and thus has rendered approximately  14
           years of service before his absorption in ONGC.  He was
           declared quasi permanent w.e.f.  1st February, 1951 and
           even  if  qualifying  period  of ten  years  is  to  be
           reckoned from this date, he had completed more than ten
           years  service.  Moreover, the reading of the  impugned
           judgment  suggests  that no such contention  was  taken
           before the learned Tribunal.  In this petition also the
           petitioners  have  not  annexed the copy of  the  reply
           filed  before the learned Tribunal from where it  could
           show  that  any  such  contention   was  taken  by  the
           petitioners.11.                    For these reasons, we do not find any merit in
           the  arguments advanced by the learned counsel for  the
           petitioners.    This  writ   petition  is   accordingly
           dismissed.12.                    Having  regard  to  the fact that  the  matter
           relates  to  the pension of the respondent No.1 who  is
           staying  at  Vadodara after his retirement and  had  to
           come to Delhi to defend his case, the petitioners shall
           also  pay the respondent No.1 cost of these proceedings
           which is quantified at Rs.2,000/-.13.                    The Registry of this court is directed to send
           the  certified  copy  of  this  judgment/order  to  the
           respondent No.1 free of cost.