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PETITIONER: R.L. MARWAHA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT12/08/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 SCR  (3) 928        1987 SCC  (4)  31  JT 1987 (3)   292        1987 SCALE  (2)245

ACT:     Pensionary  benefits  to  Central  Government  employees permanently  absorbed in Central autonomous bodies and  vice versa-Counting of service rendered prior to such  absorption for   computing   qualifying   service   for   purposes   of pension--Applicability  of  Central Government  order  dated 29th August, 1984 to persons who retired from service  prior to that date.

HEADNOTE:     The petitioner who had served in a temporary capacity in a pensionable establishment of the Central Government for  3 years  prior to his absorption in an autonomous  body  spon- sored by the Central Government, retired from the service of that body in 1980, and was not allowed to count his  service under  the  Central ’Government for purposes  of  pensionary benefits, since, according to the then existing orders, that benefit was confined only to such Central Government employ- ees  who were permanent at the time of their  absorption  in the autonomous body.     By an order dated 29th August, 1984, the Central Govern- ment  decided  inter alia that where  a  Central  Government employee borne in a pensionable establishment is allowed  to be  absorbed in an autonomous body, the service rendered  by him  under  the Government shall be allowed  to  be  counted towards  pension under the autonomous body  irrespective  of whether  the employee was temporary or permanent in  Govern- ment, subject, however, to the condition that the pensionary benefits  would  accrue  only if the  temporary  service  is followed  by confirmation. In paragraph 7 of the said  order it was stated that the order would take effect from the date of its issue.     The petitioner questioned the validity of the  condition imposed in paragraph 7 of the order dated 29th August,  1984 making  it applicable only to such of the employees  of  the Government/autonomous bodies who retired from service  after the date of the issue of the order. Allowing the petition, 929     HELD:  Paragraph  7 of the Government order  dated  29th August, 1984 cannot be used against persons in the  position of  the  petitioner  to deny them the benefit  of  the  past

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service for purposes of computing the pension. [936C-D]     2.  There  has been a continuous mobility  of  personnel between Central Government departments and autonomous bodies both  ways and the Government thought that it would  not  be just to deprive an employee who is later on absorbed in  the service  of the autonomous body the benefit of  the  service rendered  by him earlier in the Central Government for  pur- poses of computation of pension and similarly the benefit of service rendered by an employee who is later on absorbed  in the  Central Government service the benefit of  the  service rendered by him earlier in the autonomous body for  purposes of computation of pension. If that was the object of issuing the  Government  Order  dated 29th August,  1984,  then  the benefit  of that order should be extended to all  pensioners who  had rendered service earlier in the Central  Government or  in  the autonomous body as the case may be  with  effect from the date of the said Government order. [935A-C]     3. Now let us take the case of a person who had rendered service under the Central Government between January 1, 1953 and  July  1, 1955 but who has retired from  service  of  an autonomous  body  in 1985. There is no dispute that  such  a person  gets the benefit of the service put in by him  under the  Central  Government for purposes of  his  pension.  But another  pensioner who has put in service under the  Central Government  during  the  same period will  not  get  similar concession  if he has retired prior to the date of the  Gov- ernment  order  if Paragraph 7 of that order is  applied  to him. The result will be that whereas in the first case there is  pensionary  liability of the Central Government  in  the second case it does not exist although the period of service under the Central Government is the same. The discrimination arises on account of the Government order. [935C-E]     4.  There is no substance in the plea that this  conces- sion being a new one it can only be prospective in operation and  cannot  be extended to employees who have  already  re- tired. It is true that it is prospective in operation in the sense that the extra benefit can be claimed only after  29th August, 1984. But it certainly looks backward and takes into consideration  the past event that is the period of  service under  the  Central  Government for  purposes  of  computing qualifying service because such additional service can  only be  the service rendered prior to the date of issue  of  the Government order. By doing so the Government order will 930 not  become an order having retrospective effect.  It  still continues  to be prospective in operation. Whoever has  ren- dered  service during any past period would be  entitled  to claim the additional financial benefit of that service if he is alive on 29th August, 1984 under the Government order but with effect from 29th August, 1984. [935H; 936A-C]     5.  The  respondents have not furnished  any  acceptable reason  in  support of their case, except  saying  that  the petitioner was not entitled to the benefit of the Government order because the order says that it would not be applicable to  those who had retired prior to the date on which it  was issued. In the absence of any explanation which is worthy of consideration  it has to be held that the classification  of the pensioners who were working in the Government/autonomous bodies  into two classes merely on the basis of the date  of retirement  is unconstitutional as it bears no nexus to  the object to be achieved by the order. [935F-G]

JUDGMENT:

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ORIGINAL JURISDICTION: Writ Petition No. 3739 of 1985. (Under Article 32 of the Constitution of India). A.K. Goel and Ajit Pudiserry for the Petitioner.     B. Datta, Additional Solicitor’ General, P.P. Singh  and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH, J. The question involved in this case  is whether an employee of an autonomous body established  under the auspices of the Central Government is entitled to  claim the  benefit of the period of service rendered by him  in  a pensionable  post under the Central Government prior to  his service being absorbed in the autonomous body for  computing qualifying service for purposes of pension.     The  petitioner R.L. Marwaha entered the service of  the Central  Government  on a temporary basis on  4.10.1950  and worked  as  an  Upper Division Clerk in  the  pay  scale  of Rs.80-5-120-8-200-10/2-220  in the office of the  Settlement Commissioner (Claims Wing) under the Ministry of Rehabilita- tion, Union of India and he continued to hold that post upto 23.11. 1953 (F.N.). He, having been appointed in the  Indian Council of Agricultural Research (hereinafter referred to as ’the  ICAR’), which is an autonomous body sponsored  by  the Central 931 Government,  to a higher post of Assistant in the  scale  of pay of Rs. 160-450 joined the service of the ICAR as a fresh entrant  on the same date that is 23.11.1953 (F.N.). He  was not  allowed to carry forward the leave that he  had  earned and was declared quasi-permanent as an Assistant in the ICAR with effect from 17.1.1957. The post held by the  petitioner under  the Central Government before he entered the  service of  the  ICAR was a pensionable post and the post  or  posts held  by  him in the ICAR were also pensionable  posts.  The petitioner retired from the service of the ICAR on September 30, 1980 after attaining the age of superannuation, i.e., 58 years. On retirement the petitioner was accorded  pensionary benefits reckoning his qualifying service from 23.11.1953 to 30.9.1980.  The  petitioner,  as some others  who  had  also retired  from  the service of the ICAR  had  been  agitating before the authorities to count the period of service put in by  him  between  4.10.1950 and23.11. 1953  in  the  Central Government as part of the qualifying service and to  compute his  pensionary benefits on that basis. The  petitioner  had applied to the ICAR even before his retirement requesting it to  count his service in the Central GoVernment as  part  of his qualifying service for pension. The petitioner  received a  reply  from the ICAR stating that according to  the  then existing policy the Government had not accepted any pension- ary liability in cases like that of the petitioner and  that there  were  no  rules authorising the ICAR  to  accept  the charge  of pensionary liability in respect of the period  of his service rendered in the Central Government.     Under  the orders which were in force in 1984 the  posi- tion  as regards counting of service rendered elsewhere  was as follows:      (i) Service rendered outside Central Government did not count for pension in Central Government.      (ii) In the case of scientific employees of  autonomous bodies  financed or controlled by the  Government,  however, such employees were allowed to count their previous  service in such autonomous bodies or permanent absorption under  the Central Government subject to certain conditions.      (iii)  In  respect of personnel other  than  scientific employees  who were permanent in Central Government  in  the event  of  their subsequent permanent absorption  in  public

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sector  undertakings  or any autonomous  body  proportionate retirement  benefits for the service rendered in  Government till  the date of permanent absorption were allowed  as  per rules in force at the time of absorption. 932     (iv) No such benefit as provided in para (iii) above was allowed  to  temporary employees going  over  to  autonomous bodies or undertakings.     In the meanwhile Central autonomous/statutory bodies had also  introduced pension schemes for their employees on  the lines of the pension scheme available to the Central Govern- ment  employees. Therefore such autonomous/statutory  bodies also  started  urging  that the service  rendered  by  their employees  under the Central Government or other  autonomous bodies before joining any autonomous body may be allowed  to be  counted  in combination with service in  the  autonomous body concerned for the purpose of pension subject to certain conditions.  There  was  also a demand  for  making  similar provisions for employees of autonomous bodies going over  to the Central Government. In other words, the demand was  that the benefit of pension based on the combined service  should be introduced. After a careful consideration of all relevant matters  the  Central Government passed an order  being  No. O.M.  No.  28  10 84-Pension Unit dated  20th  August,  1984 Ministry of Home Affairs, Department of Personnel and Admin- istrative Reforms and issued it on 29.8. 1984. That part  of the Government order which is relevant for purposes of  this case  is set out in Paragraph 3(A)(i) thereof and it  is  as follows:                          "No. 28/10/84-Pension Unit                       Government of India Bharat Sarkar                   Ministry of Home Affairs Grih Mantralaya       Department of Personnel and Administrative Reforms                     (Karmik Aur Prashasnik Sudhar Vibhag)                         New Delhi, the 29th August, 1984. OFFICE MEMORANDUM       Sub: Mobility of personnel between Central  Government Departments  and Autonomous Bodies--Counting of service  for pension. ......................................................               3.  This matter has been considered  carefully               and  the  President has now  been  pleased  to               decide  that the cases of  Central  Government               employees  going over to a Central  autonomous               body or vice versa and employees of the Cent-               933               ral autonomous body moving to another  Central               autonomous  body may be regulated as  per  the               following provisions:-                    (A)  In case of Autonomous  bodies  where               pension scheme is in operation.               (i) Where a Central Government employee  borne               on pensionable establishment is allowed to  be               absorbed  in an autonomous body,  the  service               rendered by him under the Government shall  be               allowed  to be counted towards  pension  under               the  autonomous body irrespective  of  whether               the  employee  was temporary or  permanent  in               Government.  The  pensionary  benefits   will,               however, accrue only if the temporary  service               is followed by confirmation. If he retires  as               a  temporary employee in the autonomous  body,               he will get terminal benefits as are  normally               available  to  temporary employees  under  the               Government.  The same procedure will apply  in

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             the case of employees of the autonomous bodies               who are permanently absorbed under the Central               Government.                        The  Government/autonomous body  will               discharge  its pension liability by paying  in               lump sum as a one-time payment,  the  pro-rata               pension/service   gratuity/terminal   gratuity               and  DCRG  for the service upto  the  date  of               absorption in the autonomous  body/Government,               as  the  case may be. Lump sum amount  of  the               pro-rata  pension  will  be  determined   with               reference  to commutation table laid  down  in               CCS  (Commutation of Pension) Rules, 1981,  as               amended from time to time."     Paragraph  7  of  the said  Government  order,  however, stated  that  the order would take effect from the  date  of issue of the revised policy and will be applicable to  those employees who retired from Government/autonomous body  serv- ice  on  or  after the issue of the said  order.  Since  the petitioner had retired on 30.9.1980 he was not accorded  the benefit of that order.     In this writ petition the petitioner has questioned  the validity of the condition imposed in paragraph 7 of the said order  making the order applicable only to such of  the  em- ployees  of  the Government/ autonomous bodies  who  retired from service after the date of the issue 934 of the order. The petitioner’s contention is that it was not open  to the Government to deny the benefit of the order  to those  employees  who had retired prior to the date  of  the order  as it would bring into existence two classes of  pen- sioners---one  class of pensioners who had retired prior  to the  date of the Government order and another class of  pen- sioners  who had retired subsequent to the date of the  Gov- ernment order and that such classification was not warranted under  Article 14 of the Constitution as there was no  nexus between the classification and the object to be achieved  by the Government order.     The  writ petition is resisted by  the  respondents--the Union of India and the ICAR. It is pleaded on behalf of  the respondents  that the petitioner was not entitled  to  count the  period of service rendered by him under the  Government of India as a part of his qualifying service for purposes of pension  since  he was only a temporary  Government  servant when he was working in the office of the Settlement  Commis- sioner,  that  he had joined the service of the  ICAR  as  a fresh entrant and that there was no Government policy  which entitled  the petitioner to count the period of his  Govern- ment  service  as  part of qualifying  service  for  pension before the Government order dated 29.8.1984 was passed.  The fact that the petitioner was a temporary Government  servant when he was working in the Central Government is  immaterial because  the Government order itself says that  the  service rendered by a Central Government employee under the  Govern- ment  would be allowed to be counted towards  pension  under the autonomous body irrespective of whether the employee was temporary or permanent in Government provided he is later on confirmed  in the autonomous body. This condition is  satis- fied  in this case. It is admitted that the  petitioner  was treated  as a new entrant when he joined the service of  the ICAR  on the same day on which he ceased to be the  employee of the Central Government. But the fact that the  petitioner joined the service of the ICAR as a new entrant cannot again be an impediment for extending the benefit of the Government order  dated  August  29, 1984 because  every  employee  who

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leaves  the  service of the Central Government to  join  the service  of the ICAR has to be treated as a new  entrant  at the  ICAR  because  it is not a department  of  the  Central Government but a registered body. In fact there cannot be  a transfer  to the ICAR from the Central Government. There  is no substance in this contention of the respondents.     There  is no dispute that the ICAR though it is  a  body registered under the Societies Registration Act, 1960, is  a body  which  is sponsored, financed and  controlled  by  the Central Government. There 935 has been a continuous mobility of personnel between  Central Government departments and autonomous bodies, like the  ICAR both  ways and the Government thought, and rightly so,  that it would not be just to deprive an employee who is later  on absorbed  in  the service of the autonomous body,  like  the ICAR  the benefit of the service rendered by him earlier  in the  Central Government for purposes of computation of  pen- sion  and  similarly the benefit of service rendered  by  an employee who is later on absorbed in the Central  Government service  the benefit of the service rendered by him  earlier in  the autonomous body for purposes of computation of  pen- sion.  If  that was the object of issuing  the  notification then the benefit of such notification should be extended  to all  pensioners  who  had rendered service  earlier  in  the Central Government or in the autonomous body as the case may be  with effect from the date of the said Government  order. Now let us take the case of a person who had rendered  serv- ice under the Central Government between January 1, 1953 and July 1, 1955 but who has retired from service of the ICAR in 1985. There is no dispute that such a person gets the  bene- fit  of the service put in by him under the Central  Govern- ment for purposes of his pension. But another .pensioner who has  put in service under the Central Government during  the same  period will not get similar concession if he  has  re- tired prior to the date of the Government order if Paragraph 7  of that order is applied to him. The result will be  that whereas  in the first case there is pensionary liability  of the Central Government in the second case it does not  exist although the period of service under the Central  Government is  the same. This discrimination arises on account  of  the Government order. There is no justification for denying  the benefit  of  the Governmentorder to those  who  had  retired prior to the date on which the Government order was  issued. The respondents have not furnished any acceptable reason  in support of their case, except saying that the petitioner was not entitled to the benefit of the Government order  because the order says that it would not be applicable to those  who had retired prior to the date on which it was issued. In the absence of any explanation which is worthy of  consideration it has to be held that the classification of the  pensioners who  were working in the Government/ autonomous bodies  into two classes merely on the basis of the date of retirement as unconstitutional  as it bears no nexus to the object  to  be achieved by the order.     We do not also find much substance in the plea that this concession  being  a new one it can only be  prospective  in operation  and  cannot  be extended to  employees  who  have already retired. It is true that it is prospective in opera- tion in the sense that the extra benefit can 936 be claimed only after 29.8.1984 that is the date of issue of the  Government order. But it certainly looks  backward  and takes  into consideration the past event that is the  period of  service  under the Central Government’ for  purposes  of

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computing qualifying service because such additional service can only be the service rendered prior to the date of  issue of  the Government order. By doing so the  Government  order will  not  become an order having retrospective  effect.  It still continues to be prospective in operation. Whoever  has rendered service during any past period would be entitled to claim the additional financial benefit of that service if he is  alive on 29.8.1984 under the Government order  but  with effect from 29.8.1984.     In the result we hold that paragraph 7 of the Government order cannot be used against persons in the position of  the petitioner to deny them the benefit of the past service  for purposes of computing the pension.     We,  therefore,  direct the respondents  to  revise  the pension  payable  to the petitioner in accordance  with  the Government  order by giving him the benefit of  the  service rendered  by him in the Central Government  while  computing his  qualifying  service for pension. We, however,  make  it clear that the petitioner is entitled to recover the differ- ence  between  the pension which he is entitled  to  get  in accordance  with the Government order and the pension  which is  already  disbursed to him with  effect  from  29.8.1984, i.e.,  the date of the Government order only and he  is  not entitled to get any relief in respect of the period prior to August 29, 1984. The writ petition is accordingly allowed. No costs. Petition allowed. H.L.C. 937