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PETITIONER: A.P. SRIVASTAVA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT20/09/1995

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) KULDIP SINGH (J)

CITATION:  1995 SCC  (6) 227        JT 1995 (6)   665  1995 SCALE  (5)450

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATNAIK, J.      Special Leave granted.      The short  question which  arises for  consideration is whether an  employee who  was a temporary government servant looses his  right  to  receive  pension  when  the  employer exercises its  option and  retires  the  employee  after  he attain the  age of  55 years  in accordance with Rule 56 (J) (ii) of  the Fundamental  Rules, even  though  the  employee might have completed more than 20 years service?      The appellant  joined the services of the Government of India as  temporary Lower  Division  Clerk  in  the  Central Tractor Organisation  on 06.10.1955.  He was promoted to the post of  Upper Division Clerk on probation on 28.12.1962 and having continued for 8 years, he was reverted to the post of temporary  Lower   Division  Clerk  on  01.12.1970.  Pending initiation of  departmental proceeding  he was  suspended on 01.12.1980. The  departmental proceeding  was  initiated  on 10.04.1981. The  disciplinary authority  finally  passed  an order of  punishment on  01.06.1985. Against  the  order  of punishment an  appeal was  preferred  by  the  appellant  on 19.07.1985 but  that appeal  had not  been forwarded  to the appellate authority  by the  disciplinary authority.  As the appeal was  not disposed  of the  appellant  approached  the Principal Bench  of the  Central Administrative  Tribunal on 15.01.1987.  While  the  aforesaid  proceeding  was  pending before the  Tribunal, the Under Secretary in the Ministry of Home Affairs  issued  an  order  pre-maturely  retiring  the appellant under Rule 56 (J) (ii) of the Fundamental Rules on 26.02.1988 making  it effective  from 01.03.1988. This order was challenged  by the  appellant again  before the  Central Administrative Tribunal  which was  heard on  31.01.1991. On account of  difference of opinion between the two Members of the Tribunal  the matter  was referred to the Chairman under Section 26  of the Administrative Tribunals Act, 1985 who in

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his turn referred the matter to the Vice-Chairman. The Vice- Chairman gave  his opinion  that  the  order  of  compulsory retirement of  a temporary  government servant under Rule 56 (J) of  the Fundamental Rules is not an order of punishment. He also  found that the employee will not be entitled to any pensionary benefit  since neither he has retired on reaching the  age   of  superannuation   nor  he  has  been  declared permanently incapacitated  for further  Govt. service nor he has sought voluntary retirement after completion of 20 years of service.      In view  of the  aforesaid opinion the appellant having been deprived  of the  pensionary benefits,  has  approached this Court.  The learned counsel for the appellant contended that if  a  temporary  government  servant  who  voluntarily retires after  completion of  20 years  of service  would be entitled to the pension, there is no reason to deny the same when  the   employer  compulsorily  retires  him  after  the employee has  completed 20  years of service. In other words when Rule  56 (J)  of the Fundamental Rules confers power on the employer to retire government servant in public interest after  giving   3  months  notice  under  the  circumstances mentioned therein  and Rule  56  (K)  similarly  entitles  a government servant  to voluntarily  retire  after  giving  3 months notice, there should not be any different criteria in the matter  of award  of pension.  Learned counsel appearing for the respondents on the other hand contended that in view of the  specific provision  of the  Rules and the Rule being given its  literal meaning  there  is  no  escape  from  the conclusion that  a temporary  government servant will not be entitled to  any pension  even if he has completed more than 20 years  of service  when the employer compulsorily retires him  in   exercise  of  power  under  Rule  56  (J)  of  the Fundamental Rules.      In view  of the  rival  submissions  at  the  bar,  the question for consideration is whether there is any rationale behind the rule disentitling pension to a government servant when an order of compulsory retirement is passed in exercise of power  under Rule 56 (J) of the Fundamental Rules? As has been noticed earlier after completion of a particular period of service  the employer  has a right to compulsorily retire the employee  in public  interest and similarly the employee has a  right to  voluntarily retire  on giving  three months notice. It  has been  held by this Court time and again that the pension is not a charity or bounty nor it is conditional payment solely  dependant on the sweet will of the employer. It is  earned for  rendering a  long service  and  is  often described as  deferred portion of payment for past services. It is in fact in the nature of social security plan provided for a  superannuated  government  servant.  If  a  temporary government servant  who has rendered 20 years of service, is entitled to pension, if he voluntarily retires, there, is no justification for  denying the  right  to  him  when  he  is required to  retire by  the employer in the public interest. In other  words, the  condition precedent for being entitled to pension  in case  of a  temporary government  servant  is rendering of 20 years of service.      In  view  of  the  legal  position  that  an  order  of compulsory retirement  is not  a punishment and pension is a right of  the employee  for services  rendered,  we  see  no justification  for   denying  such   right  to  a  temporary government servant merely on the ground that he was required to retire by the employer in exercise of power under Rule 56 (J) of  the Fundamental  Rules. In  our considered opinion a temporary government  servant would  be entitled  to pension after he has completed more than 20 years of service even if

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he is  required to  retire by  the employer  in exercise  of power under Rule 56 (J) of the Fundamental Rules.      The direction of the Tribunal to the contrary therefore is set  aside and  we  hold  that  the  appellant  would  be entitled to  pension as admittedly he has rendered more than 20 years  of service. This appeal is accordingly allowed but there would be no order as to costs.