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PETITIONER: BHASKAR GAJANAN KAJREKAR

       Vs.

RESPONDENT: ADMINISTRATOR, DADRA AND NAGAR HAVELI AND ORS.

DATE OF JUDGMENT23/02/1993

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) YOGESHWAR DAYAL (J)

CITATION:  1993 SCR  (2)  60        1993 SCC  (3) 237  JT 1993  Supl.     43    1993 SCALE  (1)683

ACT: Civil Services : Civil Services (Pension) Rules, 1972  Rule 13-PensionRetiree not  given pension as he was not confirmed in any post  even after  23 years of service-On the availability of  permanent post-Entitlement  to confirmation-Payment of pension to  the Retiree  treating  him as  a  confirmed  employee-Directions issued.

HEADNOTE: The  appellant retired in 1977 after putting in 23 years  of service.   But he was not given pension on the  ground  that throughout  his service he was working on officiating  basis and  was never appointed substantively to any of  the  posts held by him.  The appellant challenged the denial of pension to  him  before  the  Central  Administrative   Tribunal.The Tribunal held that since the appellant retired from  service without  holding  lien on any substantive post, he  was  not entitled  to pension under Rule 13 of the  Central  Services (Pension) Rules, 1972.  The application of the appellant was disposed of ex-parte by the Tribunal and his application for restoration  and hearing was also rejected.   Against  these orders  of  the  Tribunal appellant  preferred  the  present appeals. The Respondents contested the appeals on the ground that the Departmental  Promotion  Committee  did  not  recommend  the appellant’s  confirmation since two  departmental  enquiries were  initiated against him, resulting in deduction  of  Rs. 4,000 from his gratuity, by way of punishment. Allowing the appeals, this Court, HELD:     1.  Admittedly the findings in the  two  enquiries were  never communicated to the appellant during the  period of  his  service.   Those  were served  on  him  only  after retirement The question of his confirmation which was due in the year 1967 could not have been linked with the  enquiries which   were   initiated  at  a  much  later   stage.    The Departmental Promotion Commit60  61 tee should have considered the appellant for confirmation on the  basis of the record of the appellant as existed in  the year 1967/1968.  There is no material on record to show that the  service  record  of the appellant  prior  to  1970  was

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adverse in any manner.  Even the Departmental Promotion Com- mittee  found the confidential reports of the appellant  for the  last  three years as good.  On the  availability  of  a permanent  post  of  Chief of Police on June  14,  1967  the appellant  was  entitled to be confirmed  against  the  said post.    It  was  wholly  arbitrary  on  the  part  of   the respondents to have deferred the question of confirmation of the  appellant on the ground that there were no  Recruitment Rules.   The  appellant having served  the  respondents  for about  thirteen  years, on June 14, 1967 when  the  post  of Chief  of Police was made permanent and there being  nothing adverse  against him at that point of time, he was  entitled to  be  confirmed  in the said post.  In that  view  of  the matter  the  appellant  was a  confirmed  employee  when  he retired from service on July 31,1977. [63D-G] 2.   The respondents are directed to treat the appellant  as having  been  retired as a confirmed employee  and  fix  his pension and other post-retiral benefits on that basis.   The respondents  are  further directed to complete  the  pension case  of the appellant within three months and pay  him  all the  arrears  of the pension within  two  months  thereafter alongwith 12% interest on the said arrears. [63H; 64A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 724-725  of 1992. From the Judgment and Order dated 13.11.90 & 10.8.90 of  the Central  Administrative  Tribunal, New Bombay  in  M.P.  No. 855/90, & O.A. No. 799 of 1989. N.M.  Ghatate,  Anand  Prasad and  S.V.  Deshpande  for  the Appellant. T.C. Sharma and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted in both the matters. B.G. Kajrekar joined service as Chief of Police on August 1, 1954 in Dadra and Nagar Haveli.  He worked in that  capacity upto  April 19, 1966.  Thereafter he was sent on  deputation to the Central Reserve Police, 62 Neemuch (Madhya Pradesh).  He came back to his original post in Dadra and Nagar Haveli on November 17, 1967 and worked as Chief  of Police upto April 6, 1971.  He was transferred  to Delhi  Armed  Police  on April 7, 1971 where  he  worked  as Deputy Superintendent of Police till his retirement on  July 31,  1977.  He has thus, put in about twenty three years  of service. Kajrekar was not given pension on the ground that throughout his  service  he worked on officiating basis and  was  never appointed  substantively  to any of the posts held  by  him. Kajrekar  challenged the action of the respondents,  denying pension to him, before the Central Administrative  Tribunal, Bombay.  The Tribunal rejected his application on the ground that  he  retired from service without holding lien  on  any substantive  post  and as such was not entitled  to  pension under Rule 13 of the Central Civil Services (Pension) Rules, 1972 (the Rules).  The application of Kajrekar was  disposed of  ex-parte by the Tribunal and his prayer for  restoration and  hearing  was also rejected.  These appeals  by  way  of special  leave  petitions  are against  the  orders  of  the Central Administrative Tribunal. It  is not disputed that the post of Chief of  Police  under Dadra and Nagar Haveli Administration was declared permanent with effect from June 14, 1967.  On that date the  appellant

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had  already put in about thirteen years of service but  his case for confirmation was not considered on the ground  that there  were no Recruitment Rules for the post in  existence. The Recruitment Rules for the post of Chief of Police  under the Administration of Dadra and Nagar Haveli came into force on  January 19, 1980.  The said Rules provided "by  transfer on  deputation" as the method of recruitment to the post  of Chief of Police.  The Recruitment Rules have no relevance to the  question  of confirmation of the appellant  as  he  had retired  from  service on January 31, 1977 much  before  the coming  into force of the Recruitment Rules.  It was  incum- bent  on the respondents to have considered the question  of confirmation   of  the  appellant  before  his   retirement, specially  when  he  was being  retired  after  serving  the respondents for twenty three years.  It was wholly arbitrary on the part of the respondents to have kept the appellant as an  unconfirmed employee for a period of twenty three  years on  the ground that there were no Recruitment Rules for  the post he was holding. The Union Territory of Dadra and Nagar Haveli in its counter filed in this Court has stated that after the publication of the Recruitment Rules  63 a  Departmental Promotion Committee was convened on July  4, 1981  for  considering the question of confirmation  of  the appellant  as Chief of Policy.  The  Departmental  Promotion Committee  did not recommend the appellant for  confirmation on  the  ground that during the course of his  service,  two departmental   enquiries   were   instituted   against   the appellant.  The enquiries could not be completed before  the appellant’s retirement and the findings were made  available thereafter.   The proceedings of the Departmental  Promotion Committee further show that as a result of the enquiries Rs. 4,000  was  to be deducted from the gratuity amount  of  the appellant  as  a measure of  punishment.   The  Departmental Promotion  Committee found that the confidential reports  of the  appellant  for the last three years were good  but  the Committee declined to recommend confirmation because of  the two enquiries. It  is not disputed that the findings in the  two  enquiries were  never communicated to the appellant during the  period of  his  service.   Those  were served  on  him  only  after retirement.  The question of his confirmation which was  due in  the  year  1967  could not have  been  linked  with  the enquiries  which were initiated at a much later stage.   The Departmental Promotion Committee should have considered  the appellant for confirmation on the basis of the record of the appellant  as  existed in the year 1967/1968.  There  is  no material  before us to show that the service record  of  the appellant prior to 1970 was adverse in any manner rather the averments  made  by the appellant in the  rejoinder  to  the effect  that  there was nothing adverse against him  on  the record prior to 1971, have not been controverted.  Even  the Departmental  Promotion  Committee  found  the  confidential reports  of the appellant for the last three years as  good. We  are of the view that on the availability of a  permanent post  of Chief of Police on June 14, 1967 the appellant  was entitled  to  be confirmed against the said  post.   It  was wholly  arbitrary for the respondents to have  deferred  the question of confirmation of the appellant on the ground that there  were no Recruitment Rules.  We, therefore, hold  that the  appellant  having  served  the  respondents  for  about thirteen  years on June 14, 1967 when the post of  Chief  of Police  was made permanent and there being  nothing  adverse against  him  at that point of time, he was entitled  to  be

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confirmed in the said post.  In that view of the matter  the appellant  was  a confirmed employee when  he  retired  from service on July 31, 1977. We, therefore, direct the respondents to treat the appellant as having 64 been retired as a confirmed employee and fix his pension and other  post-retiral  benefits  on that  basis.   We  further direct  the respondents to complete the pension case of  the appellant within three months from today and pay him all the arrears   of  the  pension  within  two  months   thereafter alongwith  12% interest on the said arrears.  We  allow  the appeals with costs which we quantify as Rs. 10,000. G.N. Appeals allowed. 65