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2019 DIGILAW 2137 (RAJ)

Anand Prakash Gehlot v. State of Rajasthan

2019-08-08

S.RAVINDRA BHAT

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ORDER : S. Ravindra Bhat, J. 1. The writ petitioner seeks a direction to quash the order rejecting his request for including the period from 16.09.1964 to 07.01.1973, as qualifying service for the purposes of pension under the Rajasthan Pension Rules, 1996 (hereinafter referred to as "Pension Rules"). 2. The petitioner initially joined the Jai Narayan Vyas University as a 'Clerk' on 16.09.1964. The University was created by a statute of the Rajasthan State Legislature. After spending more than 9 years in the University's employment, the petitioner responded to an advertisement and was selected by the State Irrigation Department, against the post of LDC; he reported pursuant to an offer of appointment and took charge of the post on 07.01.1973. Eventually, after completion of more than 26 years of service, he superannuated from the State's employment on 31.03.1999. During the currency of his employment, he had moved the State Government for inclusion of the period of his service with the JNV University, for reckoning pensionable service. The State declined his request, contending amongst other things, that the period spent in the employment of the University was not pensionable as those working with the JNV University were covered by Contributory Provident Fund Scheme. 3. The petitioner was aggrieved by the decision of the State; he approached this Court, which disposed of his first writ petition, directing him to represent to the State. This time again, he was unsuccessful because the State reiterated its position with respect to the unfeasibility of granting pension since his prior service was not pensionable. He has therefore approached this Court and urges that the University had introduced a pension scheme and that a previous Division Bench ruling of this Court entitles him to reckon the previous period of service for pension. 4. The State in its counter affidavit urges that the university did not have a pension scheme and that a pension scheme was introduced only with effect from 01.01.1990. Furthermore, since retirement dues and pension are largely dependent on the contributions made by the employer who has limited funds, in the absence of contributions for the nine years between 1964 and 1973, the petitioner's claim cannot be granted. The State also cites a Finance Department's order dated 20.01.2005 in support of its contention that the petitioner cannot be granted the benefit of full pension by reckoning period of past service of employment in JNV University. The State also cites a Finance Department's order dated 20.01.2005 in support of its contention that the petitioner cannot be granted the benefit of full pension by reckoning period of past service of employment in JNV University. 5. At the outset, it is pointed out that in the identical circumstances, where an employee of the JNV University were subsequently selected and worked as a prosecuting Sub Inspector under the State's Police/Home Department with effect from 1973 and was subsequently selected to the Rajasthan Judicial Service; a Division Bench of this Court in Udai Singh Udawat Vs. Rajasthan High Court & Ors. 2005 (4) RDD 826 (Raj) (DB) had held that notwithstanding the later introduction of the pension scheme in the JNV University, the State should nevertheless direct inclusion of the period of past service. 6. In this regard, this Court has considered the judgment of Udai Singh Udawat (supra). The employee concerned those was appointed as a Laboratory Assistant by the JNV University where he had worked for the period from 19.07.1963 to 31.05.1973. He later worked as a prosecuting Sub-Inspector for 6 years between 1973 to 1979. On 02.01.1979 after selection, he joined, as a member of the Rajasthan Judicial Service. After citing Rule 14 of the Rajasthan Service Rules, 1951 (which empowers the State to declare any service as qualifying service), the Court also noticed Appendix IX to the Pension Rules, which outlined a reciprocal arrangement between the State Government and the Central Government as well as other statutory bodies for counting the service for the purposes of pension. After citing Rule 14 of the Rajasthan Service Rules, 1951 (which empowers the State to declare any service as qualifying service), the Court also noticed Appendix IX to the Pension Rules, which outlined a reciprocal arrangement between the State Government and the Central Government as well as other statutory bodies for counting the service for the purposes of pension. In addition, an order was made on 19.08.1989 which inter alia, states as follows: "The Governor has been pleased to order that below Item (iv) of Finance Department Order of even number dated 23.09.1988, the following new Items (v) and (vi) shall be added as follows, namely:- (v) The employees of a Central autonomous body/statutory body or State Government, as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either:- (a) to retain such benefits and in that event their past service will not qualify for pension under the Central autonomous body/Statutory body or the State Government, as the case may be; or (b) to have the past service counted as qualifying service for pension under the new organization in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited alongwith interest thereon from the date of receipt of these benefits till the date of deposit with the Central autonomous body/statutory body or the State Government, as the case may be, the rate of interest in such cases would be simple interest of 6% per annum. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In other cases, where pro rata retirement benefits have already been sanctioned but have not yet become payable the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction, the option shall be exercised within a period of one year from the date of issue of these orders. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final. (vi) Where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in Finance Department Memorandum of even number dated 23.09.1988. In no case pension contribution/liability shall be accepted from the employee concerned." 7. The Division Bench later held that the pension had to be calculated after counting the previous service of the petitioner; in Udai Singh Udawat (supra), the observations of the Division Bench are as follows: "6. It cannot be disputed that the JNV University, Jodhpur is a statutory body. The pension scheme is available with the University. Now, it is well settled that the even the employees of the JNV University, Jodhpur who have retired before the introduction of the pension scheme on being given option are entitled to pension. Thus, as per Appendix IX the service rendered by the petitioner as Laboratory Assistant is liable to be counted, if he prepared to deposit the amount received by him under the Provident Fund Scheme with interest at the rate of 6%. In the writ petition a specific averment has been made that the petitioner is ready and willing to deposit the said amount on being called upon to do so. In view of this the respondent State is under an obligation under Rule 14 referred to above to count the services of the petitioner as Laboratory Assistant with the JNV University, Jodhpur for the purpose of calculation of the pension." 8. In the opinion of the Court, the petitioner's case too is covered by parity of reasoning. He worked between 1964 and 1973 in the JNV University. Like in the case of Udai Singh Udawat(supra), the University did not have the pension scheme at that given time. 9. Nevertheless, having regard to Rule 14 of the Rajasthan Service Rules, 1951 and Appendix IX (cited above), this Court is of the opinion that the same reasoning and conclusion would govern the present case. Like in the case of Udai Singh Udawat(supra), the University did not have the pension scheme at that given time. 9. Nevertheless, having regard to Rule 14 of the Rajasthan Service Rules, 1951 and Appendix IX (cited above), this Court is of the opinion that the same reasoning and conclusion would govern the present case. Accordingly, a direction is issued to the respondent to include the period of the petitioner's service as a 'Clerk' between 1964 and 1973 (with the JNV University) for the purposes of calculating pension and all other terminal benefits. 10. During the pendency of these proceedings, the petitioner had expired; therefore, his legal representatives have been impleaded. The State is directed to pass pay and pension fixation orders and disburse the arrears to the petitioner's legal representatives (i.e. the arrears being the difference between what the late petitioner was entitled to and what was actually paid to him as well as the arrears of family pension which would be re-determined). These arrears shall be paid to the legal representatives within eight weeks from today. 11. The writ petition is allowed in the above terms.