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Rajasthan High Court · body

2002 DIGILAW 152 (RAJ)

R. K. Suri v. State of Rajasthan

2002-01-17

ARUN MADAN

body2002
Honble MADAN, J.–While considering the stay petition, the learned counsel representing both the parties requested for final hearing in the writ petition. Hence the writ petition is being disposed of finally by this Order. (2). Pursuant to the order dated 13.11.1969 (Exh.1) the Government of Rajasthan took a policy decision to abolish the Rajasthan Agriculture Engineering Board and consequently, the services of the petitioner were placed under deputation with the newly formed Rajasthan State Agro Industries Corporation (for short `the RSAIC-respondent No.3) with effect from 8.07.1970. The petitioner had exercised his option for permanent absorption with RSAIC, which was duly forwarded by the State Government to respondent No.3 on 5.02.1973. Thereafter the petitioner was informed that he will be entitled to proportionate pension in accordance with the Finance Departments Order dated 23.7.1968 and also the order dated 10.04.1969. Petitioners option was accordingly accepted by the State Government vide its order dated 20.3.1973. (3). Thereafter, the petitioner opted for voluntary retirement with effect from 31.03.1991, vide Exh.10 on the record. Retirement was under the Golden Hand Shake Scheme of the Government. Since the petitioner had received the amount of ex- gratia to which he was entitled under the said Scheme but he had not been paid either proportionate pension of CPF nor anything had been communicated to the petitioner by the respondent, he was constrained to move to this Court by way of above noted writ petition. (4). During the course of hearing it has been brought to the notice of this Court that this matter is covered by the ratio of decision (Exh.17) of this Court in D.K. Bhargava vs. State and RSAIC (1), which was allowed on 3.11.93. The operative part of the order is reproduced as under:- ``In the result the writ petition is allowed. It is declared that the respondent Government has violated the right of equality available to the petitioner under Article-14 and 16 of the Constitution of India by not giving him full pensionary benefits at per with those who had opted in pursuance of notice dated 25.07.1975. The respondent Government is directed to give pensionary benefits to the petitioner at par with those who had opted in pursuance of notice 25.07.1975. If the petitioner has not been paid the P.F. contribution made by the Corporation he will not be required to make refund. The respondent Government is directed to give pensionary benefits to the petitioner at par with those who had opted in pursuance of notice 25.07.1975. If the petitioner has not been paid the P.F. contribution made by the Corporation he will not be required to make refund. Else he should refund the amount of P.F. The pensionary benefits are to be paid to the petitioner in terms of this order shall be so paid to him within four months of submission of the certified copy of this order, failing which the petitioner shall be entitled to interest at the rate of 12% per annum from the date of this Order. Costs made easy. (5). In compliance of the above directions, the State Government (Department of State Enterprises) took a policy decision in the matter for the benefit of all the similarly placed employees like the petitioner on 11.3.1993 (Exh.15) for ex-gratia pay- ment to such employees, who had opted for voluntary retirement scheme as under:- Voluntary Retirement Scheme for the employees of State Public Enterprises communicated to you vide BPEs letter No. 1947 dated 5.07.1989 provide for among others payment of an ex- gratia equivalent to 1-1/2 months emoluments (Pay + D.A.) for each completed year of service on monthly emoluments at the time of retirement multiplied by balance months of service left before normal date of retirement whichever is less. (6). A clarification has been sought from the BPE on computation of amount of ex-gratia for terminal year in which the employee seeking voluntary retirement has worked only for a fraction of the year (i.e. less than completed year). (7). The matter has since been considered and it has been decided that in such cases the rate of ex-gratia for the terminal year for the purpose of clause (e) of para 3 of the Scheme (i.e. 1-1/2 months salary for every completed year of service shall be proportionate to the period of service rendered by the employees in the terminal year. For example in case of an employee has rendered 4 months service in the terminal year he would be entitled for ex-gratia (for the terminal year) equivalent to half months emoluments. (8). For example in case of an employee has rendered 4 months service in the terminal year he would be entitled for ex-gratia (for the terminal year) equivalent to half months emoluments. (8). It is pertinent to mention in this connection that in D.K. Bhargavas case (supra), the issue which had arisen for consideration of this Court was, as per petitioners case that the employees, who had opted for permanent absorption in other Departments were not allowed full pension, any benefits but only the benefit of proportionate pension. (9). Against the aforesaid decision of this Court, I have been informed by the learned counsel that the State did not prefer to go in appeal as is also evident from the decision of the State Government dated 18.5.1994 (Exh. 18) on the record. Consequently I am of the view that the ratio of the aforesaid decision is fully attracted to the instant case being obiter in the matter and hence not open to challenge. (10). It is also borne out that if the petitioner had not opted for permanent absorption with the respondent-Corporation he was at the risk of relinguishing his job and, as such, he opted for permanent absorption. Similarly placed employees who had exercised their option had been allowed the benefit; thus it cannot be inferred by any stretch of imagination that petitioners conduct would disentitle him from any relief from the Court on the ground that he was permanently absorbed in the service of the respondent Corporation. (11). It is evident from the record that the petitioner had rendered satisfactory services to the respondent-Corporation since there is no whisper regarding communication of any adverse remark against him pursuant to the notice issued by the Corporation. (12). It is to be noted, however, that after the decision of the State Government to give full pensionary benefits even to the optees of the second batch, there remained no jurisdiction for the State Government to deny similar benefits to the optees of the first batch to which the petitioner belongs, since the petitioner had immediately exerci- sed his option in the matter by accepting the same. It is clearly borne out from the notice dt. 25.07.1975 that the Government had thought it proper to provide second opportunity to those who had not opted earlier. It is clearly borne out from the notice dt. 25.07.1975 that the Government had thought it proper to provide second opportunity to those who had not opted earlier. If the Government had given benefits of proportionate pension to those who had opted in pursuance of the second opportunity of option, no exception could have possibly been taken in petitioners case. (13). From the perusal of the reply filed on behalf of the respondents, it has not been denied or disputed that those employees like the petitioner, who were sent on deputation or on permanent absorption, as the case may be, to the services of the respondent-Corporation constitute one single Class. However, no reason has been advanced whatsoever by the respondent Government for subjecting some employees of this group to a discriminatory treatment in the matter of grant of pensionary benefit. This is based on the principle that the State cannot discriminate the employees who were either under permanent absorption or on deputation as it would constitute one single Class since otherwise it would amount to hostile discrimination. (14). The law is well settled that the classification in order to understand the test of reasonableness should be based on reasonable criteria and should also have nexus with the objects have to be achieved since otherwise it can be struck down being discriminatory. (15). I am fortified in my observations from the ratio of decision of this Court in D.K. Bhargavas case (supra), where similar view has been taken. (16). It is one of the settled principles of jurisprudence that Articles 14 and 16 of the constitution of India restricts the Government from making discrimination amongst persons similarly situated. While Article 14 of the Constitution contains general provisions, Article 16 contains provisions of equality in the matter of public employment. The word `employment takes within its ambit every incident relating to service, whether it be a pre-recruitment matter. The equity clause contained in the Constitution of India does not prohibits classification on rational grounds but forbids discrimination without reasons of jurisdiction. (17). The word `employment takes within its ambit every incident relating to service, whether it be a pre-recruitment matter. The equity clause contained in the Constitution of India does not prohibits classification on rational grounds but forbids discrimination without reasons of jurisdiction. (17). Since no explanation whatsoever has been offered by the respondent Government as to why it has not given the benefit of full pensionary benefits to the petitioner and others who had opted in pursuance of the notices dated 30.6.1972, 21.8.1972 (Exhibit-3), there is no escape from the conclusion that by denying the full pensionary benefits to the petitioner, the respondents have violated his fundamental right of equality. The reasons that the PF has been deducted by the Corporation in the case of the petitioner is of no consequence. (18). From the perusal of the reply filed by the respondent- Corporation, it is evident that though the Corporation has taken the stand that it was constituted with effect from 1.8.1969, as such, the Orders dated 23.07.1968 and 10.4.1969 of the Finance Department cannot be applied to the respondent- Corporation, is not tenable. I am of the view that since the petitioner though originally was transferred on deputation to the respondent-Corporation but subsequently since he was permanently absorbed by it, therefore, it cannot be said that the aforesaid two orders of the Finance Department cannot be made applicable to the employee of the Corporation. Rather from the perusal of para- 7 of the reply, it is evident that the Corporation has admitted this fact and not disputed that the option given by the petitioner was accepted by the Government of Rajasthan and he was permanently absorbed by the State in services of the Corporation with effect from 1.5.1973. (19). From the perusal of the Order dated 23.07.1968 (Exh. 4), it is evident that since the petitioner was permanently absorbed in services of the Corporation, he would not have foregone his entitlement to pensionary benefits by virtue of deputation post or permanent absorption on option sought by the State Government even if he had not opted for voluntary retirement, in accordance with the rules. (20). As a matter of fact, he is entitled to pensionary benefits as admissible to him at par with other similarly placed employees, who had opted for this benefit in pursuance of the notice dated 25.07.1975 or of earlier ones. (20). As a matter of fact, he is entitled to pensionary benefits as admissible to him at par with other similarly placed employees, who had opted for this benefit in pursuance of the notice dated 25.07.1975 or of earlier ones. It is pertinent to mention in this connection that since the State Government had invited option in pursuance of the Notices dated 10.6.1975/25.7.1975 (Exhibit-9) from such employees, who were still continuing on deputation with some other departments of the State Government vide letter dated 24.3.73 (Exh. 7) sent by the Agriculture Production Department, Government of Rajasthan to the Managing Director, RSAIC, Jaipur. As in the instant case, the petitioner had exercised his option and was permanently absorbed in services of the respondent-Corporation thereafter, in my view, is entitled to payment of full pension or other retiral benefits as has been stated in para 5 (d) of the Government Notification dated 10.06.1975 (Exh. 9). Clause 5(d) of the said Notification is reproduced hereinbelow:- ``5(d) Grant of full pensionary or other retirement benefits admissible to the Government employees as per Rajasthan Service Rules existing on the date of publication of this Notice is hereby guaranteed by the Government. (21). It is further evident from the above discussion that the employees including the petitioner, who had already opted could not be called upon to exercise their fresh option in pursuance of the aforesaid Notification with regard to full pension as has been clarified by letter dated 30.4.1973 (Exh. 8), governing the service conditions of the erstwhile employees of the RSAIC, whose services were placed under the disposal of the respondent- Corporation and were subsequently absorbed with the said Corporation. Thus there would not be any discrimination between gazetted and non-gazetted officials of the said Corporation. The petitioner had rendered about 24 years of service to the respondent-Corporation and had completed more than qualifying service for entitlement of the above benefits. (22). From the perusal of Exh. 12 dated 5.7.1989, which is a Voluntary Retirement Scheme for the employees of State Public Enterprises, which the petitioner had opted for the same subsequent to his absorption with the respondent-Corporation, I am of the view that the conditions stipulated therein are fully attracted and applicable to the petitioners case. (23). (22). From the perusal of Exh. 12 dated 5.7.1989, which is a Voluntary Retirement Scheme for the employees of State Public Enterprises, which the petitioner had opted for the same subsequent to his absorption with the respondent-Corporation, I am of the view that the conditions stipulated therein are fully attracted and applicable to the petitioners case. (23). No arguments on the contrary has been advanced by the learned counsel for the respondents and rather it is evident from the above discussion that all those terminal benefits which were available to the similarly placed employees be also made available to the petitioner. (24). As a result of the above discussion, the contentions as advanced by the learned counsel for the respondents are not tenable. I am informed by the learned counsel for the petitioner that the petitioner has not been paid any dues on this court (CPF Scheme), hence the question of re-fund does not arise. (25). The writ petition is allowed. The respondents are directed to release full pensionary benefits to the petitioner at par with those who had opted in pursuance of the Notification dated 10.6.1975/25.7.1975 (Exhibit-9) and also continue to pay future pension as well as admissible with effect from 1.4.1991. (26). The aforesaid dues shall be released in favour of the petitioner within 90 days from the date of submission of certified copy of this Order, failing which the respondents shall be liable to pay interest at the rate of 12% per annum from the date of its accrual till payment. (27). No order as to costs.