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CASE NO.: Appeal (civil)  8128 of 2004

PETITIONER: R.K.AGRAWAL                                                      

RESPONDENT: STATE OF RAJASTHAN & ANR.                          

DATE OF JUDGMENT: 31/10/2006

BENCH: Dr. AR. LAKSHMANAN & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T With

CIVIL APPEAL No.8127 of 2004

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

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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 AIR 1998 SC 2862 and another  in the matter of  P.V. Sundara Rajan & Anr., reported in JT 2000  (5) SC 175.  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

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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.