SUPREME COURT OF INDIA
R.K. Agrawal
Vs
State of Rajasthan and Another
Appeal (Civil) 8128 of 2004 (Civil Appeal No.8127 of 2004)
(Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ)
31.10.2006
DR. AR. LAKSHMANAN, J.
The 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.
The 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.
This 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 :
"(iii) 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. He shall, however, on his permanent absorption,
be entitled to:-
A. Pension:
(a) 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
Rules.
(b) In 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.
(c) 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.
(d) In 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.
Extract of Decision No.6:
"As 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."
According 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 contention. Likewise, 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.
The 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 and
another in the matter of P.V. Sundara Rajan & Anr., reported in . 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.
In 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 contention also.
We are 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 High Court.
Both the appeals are disposed of accordingly. No costs.