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2022 DIGILAW 294 (GUJ)

Magi (M. H. Desai) v. Director General

2022-02-17

N.V.ANJARIA, SAMIR J.DAVE

body2022
JUDGMENT : N.V. Anjaria, J. Having regard to the issue involved and with the consent and request of learned advocates for the parties, the petition was taken up for final consideration today. 1.1. Therefore, Rule. Learned advocate Mr. Ankit Shah waives service of notice of Rule on behalf of the respondents. 1.2. Heard learned advocate Mr. M.S. Trivedi for the petitioner and learned advocate for the respondent. 2. The petitioner Smt. Margaret H. Ferrier, after marriage Smt. M.H. Desai, who was initially appointed as casual labourer since 1984, and came to be regularised to be appointed in temporary capacity as Lower Division Clerk from 10th April, 1995, made a representation to the competent authority of the respondents for counting her past contractual services for the purpose of calculating the pensionary benefits. 2.1. By order dated 18th September, 2014 the Deputy Director General, Prasar Bharti, rejected the claim on the ground that the Scheme of Regularisation of Casual Staff Artists of Doordarshan, 1992/94 under which the petitioner was regularised, did not contain any clause to consider past casual service for pensionary benefits. It was further reasoned that in case of such contractual appointment, subsequent appointment and such individual is treated as fresh appointment and it was sated that in other words, such employees are not entitled to any benefit of contractual service to be counted for pension purpose. 2.2. It was the said decision of refusal dated 18th September, 2014 which came to be challenged by the petitioner before the Central Administrative Tribunal, Ahmedabad Bench by filing Original Application No. 446 of 2014. As per the impugned order dated 08th September, 2021, the Tribunal accepted the decision of the competent authority reiterating the very ground and further holding that since the petitioner was on contractual basis and was regularised when the regular vacancy arose, there was no infirmity in decision to refuse the claim for counting the past service for pensionary benefits. 3. Shorn off the unnecessary details, stating the relevant facts, petitioner was appointed as General Assistant on contractual basis in the year 1984. She came to be regularised as Lower Division Clerk as per order dated 10th April, 1995, copy of which figures on record (Annexure-I, Page 37). The order inter alia recites that regularisation of the petitioner was pursuant to the order of the Central Administrative Tribunal in Original Application Nos. She came to be regularised as Lower Division Clerk as per order dated 10th April, 1995, copy of which figures on record (Annexure-I, Page 37). The order inter alia recites that regularisation of the petitioner was pursuant to the order of the Central Administrative Tribunal in Original Application Nos. 486-492/1989 as per judgment dated 23rd November, 1994. The scale of pay in which the petitioner was appointed etc. was mentioned in the order. 3.1. Well before the date of superannuation of the petitioner arrives in the year 2023, petitioner made the aforesaid representation to the competent authority for reckoning her contractual services for pension which resulted into refusal as above and culminated into the impugned order of the Central Administrative Tribunal. 4. Learned advocate for the petitioner submitted that 50% of the service rendered as casual or contractual employee is liable to be considered for the purpose of counting the total service for pension. He referred to the decision of Central Administrative Tribunal, Bombay Bench in Ulhas D. Arekar v. The Union of India being Original Application No. 103 of 2010 decided on 30th January, 2013, to submit that in the similar set of circumstances, the said Bench held in favour of the employee, treating the temporary service as per the Rule to be counted as qualifying service. 4.1. The claim was contested by the respondent authorities by filing affidavit-in-reply in the present proceedings seeking to distinguish the decision of the Bombay Bench. It was next submitted that the Scheme of 1992/94 based on which the petitioner was appointed as regular employee did not provide the consideration of casual service for counting towards pensionary benefits. Learned advocate for the respondent for the respondents relied on the contentions raised in the affidavit-in-reply and highlighted the said aspect of the Scheme not providing for counting of contractual period of service for the benefit. 5. Noticing the relevant Rules from Central Civil Services (Pension) Rules, 1972 which would govern the entitlement of the petitioner about the total qualifying service, Rule 13 deals with commencement of qualifying service. "13. 5. Noticing the relevant Rules from Central Civil Services (Pension) Rules, 1972 which would govern the entitlement of the petitioner about the total qualifying service, Rule 13 deals with commencement of qualifying service. "13. Commencement of qualifying service.-Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that (a) In the case of a Government servant in a Group 'D' … … … (b) In the case of a Government servant not covered by Clause (a), … … …" 5.1. Rule 14 is also relevant which provides for conditions subject to which service would qualify. The said Rule is also reproduced. "14. Conditions subject to which service qualifies: 1. The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. 2. For the purpose of sub-rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. 3. In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government is an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under the Government in an officiating or temporary capacity, as the case may be, shall qualify: Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply." 5.2. Bare reading of Rule 13 indicates that qualifying service of a government servant shall commence from the date he takes charge on the post on which he first appointed. It takes the date of such appointment either substantively made or in officiating basis or appointment in temporary capacity. Bare reading of Rule 13 indicates that qualifying service of a government servant shall commence from the date he takes charge on the post on which he first appointed. It takes the date of such appointment either substantively made or in officiating basis or appointment in temporary capacity. First Proviso to Rule 13 says that temporary service should follow without interruption by substantive appointment. In the present case, temporary service of the petitioner has followed to become the order of substantive appointment. 5.3. The services in temporary capacity will include the classes of temporary servants such as casual or even contractual. There would be no gainsaying that contractual employee would be qualified as service in temporary capacity. The petitioner was on contractual basis, satisfied the criteria under Rule 13 as regards the commencement of qualifying service for pension. 5.4. Rule 14 lays down conditions on which the service would qualify. These conditions are that the duties and pay due to the employees are regulated by the government, service must be under the government, and in case of government servant belonging to any State Government who is permanently transferred to service or post to which Rules apply, continuous service rendered under the State Government in officiating or temporary capacity, if any, followed without any interruption by substantive appointment, or the continuous service rendered in any officiating or temporary capacity. What is to be noticed from this particular condition in Rule 14 is that it also takes into consideration the aspect of rendering service in officiating or temporary capacity followed without interruption and substantive appointment. When repeatedly asked as to which of the condition is not satisfied in the case of the petitioner, learned advocate for the respondent was entirely at his receiving end. 6. With the above position obtaining from reading of the Rules 13 and 14, adverting to the reasons supplied by the Tribunal, the Tribunal was heavily leaned on the aspect of the Scheme of 1992/94 to observe that the Scheme did not provide consideration of casual service for pension benefit. While on one hand order dated 10th April, 1995 regularising the service of the petitioner does not refer to the aspect that petitioner's regularisation was under the Scheme, was pursuant to the order of the Tribunal. Be as it may. 6.1. While on one hand order dated 10th April, 1995 regularising the service of the petitioner does not refer to the aspect that petitioner's regularisation was under the Scheme, was pursuant to the order of the Tribunal. Be as it may. 6.1. Otherwise also, even if it is assumed that the Scheme has such a condition, in light of Rule 13 for counting the qualifying services which unequivocally contemplate temporary service as part of the qualifying service, the Scheme cannot be an impediment in law in accepting the entitlement of the petitioner. The Scheme was for regularisation in service. Grant of pensionary benefit would flow from the relevant Rules, that is Central Civil Services (Pension) Rules, 1972. At the cost of reiteration, it is to be stated that Rule 13 in terms provide that the qualifying service shall commence from the date the employee was appointed on temporary capacity. 6.2. The Tribunal harped in its reasoning that engagement of the petitioner was on contractual basis and it was not against any sanctioned post, therefore counting of that service as a part of qualifying service would not be an admissible claim. In view of the provisions of the Rules, it is not possible to countenance the reasoning of the Tribunal and its decision to confirm the refusal. 6.3. In the result, the impugned order dated 08th September, 2021 of the Central Administrative Tribunal, Ahmedabad Bench in Original Application No. 446 of 2014 is hereby set aside. Also set aside is the decision of the competent authority of the respondents reflected in communication dated 18th September, 2014. 6.4. The services of the petitioner rendered as contractual shall be liable to be counted as temporary service for the purpose of calculating the qualifying service in accordance with the Rules. On the retirement of the petitioner, the pension shall be fixed for her accordingly. 7. The petition is allowed. Rule is made absolute.