PETITIONER:
M C. DHINGRA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 05/02/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (2) 463 1996 SCALE (2)321
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
We have heard counsel for the parties. The appellant while working in the State Service from January 31, 1948, was selected as a Railway Magistrate and had taken charge on February 1, 1973. The Government of India had issued a Circular on March 31, 1982 which envisaged with the concurrence of the State Governments, the following:
"1. The Government of India had
been considering in consultation
with the State Governments, the
question of sharing on a reciprocal
basis, the proportionate pensionary
liability in respect of those
temporary employees who had
rendered temporary service under
the Central Government/State
Governments prior to securing posts
under the various State
Governments/Central Government on
their own volition in response to
advertisement or circulars,
including those by the State/Union
Public Service Commissions and who
are eventually confirmed in their
new posts. It has since been
decided in consultation with the
State Governments f that the
proportionate pensionary liability
in respect of temporary service
rendered under the Central
Government and State Governments to
the extent under the Rules of the
respective Government, will be
shared by the Governments
concerned, on a service share
basis, so that the Government
servants are allowed the benefit of
counting their qualifying service
both under the Central Government
and the State Governments for grant
of pension by the Government from
where they eventually retire. The
gratuity, if any, received by the
Government employee for temporary
service under the Central or State
Governments will, however, have to
be refunded by him to the
Government concerned.
2. The Government servants claiming
the benefit of combined service in
terms of above decision are likely
to fall into one of the following
categories:
(1) Those who having been
retrenched from the service
of the Central/State
Governments secured on their
own employment under
State/Central Governments
either with or without
interruption between the date
of retrenchment and the date
of new appointment;
(2) Those who while holding
temporary post under
Central/State Government apply
for posts under State/Central
Government through proper
channel with proper permission
of the Administrative
Authority concerned;
(3) Those who while holding
temporary post under
Central/State Governments
apply for posts under
State/Central Governments
direct without the permission
of the Administrative
Authority concerned and resign
their previous post to join
the new appointments under
State/Central Governments.
The benefit may be allowed to
the Government servants in
categories (1) and (2) above. Where
an employee in category (2) is
required for administrative
reasons, for satisfying technical
requirement, to tender resignation
on the temporary post held by him
before joining the new appointment,
a certificate to the effect that
such resignation has been tendered
for administrative reasons and/or
to satisfy a technical requirement
to join, with pro-permissions the
new post, may be issued by the
authority accepting the
resignation. A record of this
certificate may also be made in his
service book under proper
attestation to enable him to get
this benefit at the time of
retirement. Government servant in
category (3) will obviously, not
entitled to count their previous
service for pension.
3. The above arrangement will not
apply to the employees of the
Governments of Jammu and Kashmir
and Nagaland.
4. These orders come into force
with effect from the date of issue
and cases of all such Government
servants retiring on this date and
thereafter will be regulated
accordingly.
[G.I. Dept.. of Per. & A.R. Letter
No.3(20)Pen.(A)/79 dated 31st
March, 1982 addressed to all State
Governments except Jammu and
Kashmir & Nagaland]
Note: - Sharing of pension
liability between Central and State
Governments has since been
dispensed with effect from
1.4.1987."
When the appellant had asked for proportionate pension computing the previous service, it was denied to him. Consequently, he filed O.A. No.2335/89 in the Central Administrative Tribunal, New Delhi. By order dated 19.10.1994, it was dismissed on the ground of delay. Thus, this appeal by special leave.
It is seen that though that appellant had retired on February 1, 1973, since the question of tagging the previous service rendered in the State Government on temporary basis and the similar cases are pending, the Government had taken a decision on March 31, 1982 to tag the previous service for computation of the pension. Learned counsel appearing for the respondents contended that clause 4 of the abovesaid Circular is one of the conditions which prescribes that it would be applicable to the Government servants who retired from that date, namely. March 31, 1982. Since the appellant had retired on February 1, 1973, he is not eligible. We find no force in the contention. All the persons who rendered temporary service prior to their joining the Government of India Service have been given the benefit of fixation of the pension payable by tagging the temporary service. The cut off date is arbitrary violating Article 14 of the Constitution of India. Having grouped all the similar circumstanced employees, fixing the cut off date and giving benefit to those who retired thereafter is obviously arbitrary. In similar circumstances, following the ratio in D.S. Nakara & Ors vs. Union of India [(1983) 1 SCC 305], this Court held in the case of R.L. Marwah vs. Union of India & Ors. [(1987) 3 SCR 928] that such a restriction is arbitrary violating Article 14. On the facts and circumstances, we find that the restriction imposed in clause 4 of the Circular is violative of Article 14. It is, therefore, unconstitutional. However, the appellant will be entitled to the pro rate pension from March 1982.
The appeal is accordingly allowed. No costs. The respondents are directed to work out and release the pension of the appellant within a period of six months from the date of the receipt of this order.