CWP No. 18116 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 18116 of 1994 Date of decision: 03.02.2010 Ex. Charge Mechanic Dalip Singh ...... PETITIONER VERSUS Union of India and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. J.S.Bhatti, Advocate, for the petitioner. Mr.S.K.Sharma, Central Govt. Standing Counsel, for the respondents. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for grant of sanction and disbursement of service pension in terms of the Government letter dated 30.10.1998 from the date when the petitioner was discharged from the service of GREF. CWP No. 18116 of 1994 2 Counsel for the petitioner contends that on the date when the petitioner was discharged from service he had completed 12 years 2 months and 7 days of service. He contends that the petitioner, as per the provisions of Rule 49 (2) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'the Rules'), would be entitled to grant of pension as he had completed 10 years of qualifying service with the respondents. His further contention is that the petitioner had not resigned from service but had been discharged by the respondents and, therefore, would not be covered by the rigors of Rules 48 and 48-A of the Rules. He, on this basis, submits that the petitioner should be held entitled to pension as he fulfills the requirements as mandated under Rule 49 of the Rules. On the other hand, counsel for the respondents contends that the petitioner had sought discharge at his own request. His request was accepted and, accordingly, he was discharged from service on 19.01.1974. Counsel for the respondents submits that in the light of the fact that the petitioner had completed less than 20 years of service, which is the qualifying service for grant of pension as per Rule 48-A of the Rules, he is not entitled to the benefit of pension. His further contention is that the petitioner was never retired from service under the Rules but he was discharged and that too, on his own request. Counsel for the respondents has relied upon a judgment of this Court passed in RSA No. 671 of 2004 titled as Union of India and others vs. Net Ram, decided on 03.09.2008, wherein similar contention, as has been raised by the petitioner, was considered by this Court and the same was rejected. I have heard the counsel for the parties and have gone through the records of the case. CWP No. 18116 of 1994 3 Rule 48-A of the Rules provides for the qualifying service for being eligible for grant of pension on retirement from service. The same reads as follows:- “[48-A. Retirement on completion of 20 years' qualifying service.- (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service: [Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is,- (i) On assignments under the Indian Technical and Economic Cooperation (ITCE) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/Department, (iii) on a specific contract assignment as a foreign Government. Unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority; Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. [(3) Deleted.] CWP No. 18116 of 1994 4 [(3-A) (a) A Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor. (b) On receipt of a request under Clause (a), the appointing authority subject to the provisions sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.] (4) A Government servant, who has elected to retire under this Rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and [retirement gratuity] of the Government servant retiring under this Rule shall be based on the emoluments as defined under Rules 33 and 34 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation of pay for purposes for calculating pension and gratuity. (6)This rule shall not apply to a Government servant who,- CWP No. 18116 of 1994 5 (a) retires under Rule 29, or (b) retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation.- For the purpose of this rule the expression “appointing authority” shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement.” Rule 49 of the Rules, on which reliance is placed by the petitioner, reads as follows:- “49. Amount of Pension-(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of gratuity qualifying service. [(2) (a) In the case of Government servant retiring in accordance with the provision of these rules before competing qualifying service of ten years, the amount of service qualifying shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service] (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension CWP No. 18116 of 1994 6 admissible under Clause (a) and in no case the amount of pension shall be less than (rupees three hundred and seventy five per mensem). (c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54. [(3) In calculating the length of qualifying service, fraction of a year equal to [three months] and above shall be treated as a completed one-half year and reckoned as qualifying service.] [(4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.] [(5) Deleted]. [(6) Deleted].” Rule 48-A of the Rules provides for the qualifying service, which is required for grant of pension whereas Rule 49 of the Rules only provides for how the amount of pension has to be calculated. The head note of the Rule itself clarifies the position. The reliance on Rule 49 (2) of the Rules by the counsel for the petitioner, therefore, is totally misplaced and the claim of the petitioner would fall under the purview of Rule 48-A of the Rules. Since the petitioner does not fulfill the required qualifying service for being eligible for grant of pension, the claim, as made by the petitioner, cannot be accepted. CWP No. 18116 of 1994 7 This Court in the case of Union of India and others vs. Net Ram (supra) had considered this aspect in detail and had come to the conclusion that unless a person completes 20 years of qualifying service, he would not be entitled to avail the benefit of pension as provided under the Rules. For coming to this conclusion, this Court had relied upon a judgment of the Hon'ble Supreme Court in the case of Union of India vs. Rakesh Kumar, 2001 (2) SCT 1085. The Hon'ble Supreme Court has also, while dealing with these very Rules, come to a similar conclusion, as has been drawn by the learned Single Judge of this Court in the case referred to above. In view of the above, finding no merit in the present petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE February 03, 2010 pj