IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/B) NO. 4 OF 2007 N.C. Gairola ………Petitioner. Versus State of Uttaranchal and another. …………...Respondents. Present: Mr. Ravi Babulkar, Advocate for the petitioner. Mr. K.P. Upadhyay, Advocate for the respondents. Date of Order : 15.7.2010 Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The petitioner was inducted into the service of the Allahabad University as an Engineer on 14.7.1968. He continued to discharge the duties with the Allahabad University till 15.7.1978. It is the contention of the learned counsel for the petitioner, that the service rendered by the petitioner with the Allahabad University was pensionable. 2. The petitioner responded to an advertisement for selection by direct recruitment to the post of Executive Engineer in the U.P. Chal Chitra Nigam Limited. He was selected and appointed as such on 16.6.1978. According to the learned counsel for the petitioner, the U.P. Chal Chitra Nigam Limited is a Government company. It is, further, acknowledged that the services in the U.P. Chal Chitra Nigam Limited does not entitle any employee thereof to any pensionary benefits. During the course of his employment in the U.P. Chal Chitra Nigam Limited, the petitioner was promoted to the post of Senior Manager (Construction) and thereafter, to the post of General Manager (Construction) on 1.1.1983 and 14.10.1986 respectively. 3. The State Government took a decision to wind up the U.P. Chal Chitra Nigam Limited and the employees of the U.P. Chal Chitra Nigam Limited were sought to be absorbed in Government Service, if they fulfilled the conditions incorporated in the Government Order dated 6.3.1990. It is the contention of the learned counsel for the petitioner, that the petitioner fulfilled the prescribed conditions, and as such, was absorbed in Government Service by an order dated 23.9.1991, whereafter having rendered the service as Executive Engineer in 2 Government Service, he retired on attaining the age of superannuation on 30.6.2001. 4. Based on the condition that the petitioner had rendered service in the U.P. Chal Chitra Nigam Limited, whereafter, he was absorbed into the Government Service, it is the contention of the learned counsel for the petitioner, that the service rendered by him commencing from 16.6.1978 till the date of his retirement on superannuation i.e. till 30.6.2001 should be taken into consideration as qualifying service so as to determine the retiral benefits payable to the petitioner. 5. The aforesaid claim of the petitioner is contested by the respondents by asserting, that the petitioner is entitled to count only such service as he had rendered in Government Service as qualifying service to enable him to earn pensionary benefits. In this behalf, it is the assertion of the respondents, that although ten years’ minimum qualifying service entitled a Government Servant to pensionary benefits, the petitioner having rendered nine years, nine months and four days’ of qualifying service could not be granted any pensionary benefit. 6. The first question to be determined is, whether the petitioner is entitled to count service rendered by him in the U.P. Chal Chitra Nigam Limited, with the service rendered by him in the State Government for determining the qualifying service. Insofar as the instant issue is concerned, reference may be made to the Government Order dated 6.3.1990, which stipulated the conditions of eligibility of employees working in the U.P. Chal Chitra Nigam Limited, for absorption in the Government Service. Although the petitioner was entitled for absorption under the Government Order dated 6.3.1990, but the aforesaid Government Order expressly provided that an employee will be deemed to have commenced service in the State Government with effect from the date of his absorption into the Government Service. In this behalf, reference may be made to Paragraph -5 of the Government Order dated 6.3.1990, which is being extracted hereunder:- “(5) ljdkjh lsok esa fy;s tkus ds fnukad ls gh mDr deZpkjh ljdkjh lsod ekus tk;saxs rFkk jkT; deZpkfj;ksa ij ykxw leLr fu;e tSls Hkfo"; fuokZg isa’ku vkfn mu ij rn~uqlkj mlh fnu ls Lor% ykxw gksaxsA” 3 In the aforesaid view of the matter, we are satisfied that the pre – condition, on the basis of which the petitioner was absorbed into the Government Service, expressly provided that the petitioner would be treated as a Government Servant only with effect from his absorption in the Government Service, as noticed hereinabove. The order of the petitioner’s absorption into the Government Service was issued on 23.9.1991. Thus in terms of Paragraph 5 of the Government Order dated 6.3.1990, it would be wholly improper and against the very Government Order, which resulted in the absorption of the petitioner into the Government Service, to take into consideration the service rendered prior thereto in the U.P. Chal Chitra Nigam Limited as Government Service. 7. Finding himself in the aforesaid predicament, it is the contention of the learned counsel for the petitioner, that Paragraph 5 of the Government Order dated 6.3.1990 should be read down. In order to substantiate his aforesaid contention. Learned counsel for the petitioner placed reliance on a decision rendered by the Apex Court in Vasant Gangaramsa Chandan Vs. State of Maharashtra and Ors. 1996 (6) Supreme 293. Our pointed attention has been invited to the following observations recorded therein:- “This appeal by special leave arises from the judgment and order of the Bombay High Court, Aurangabad Bench made on November 11, 1993 in Writ Petition No. 3505/93. The appellant was working as on April 1, 1957 as Peon-cum-Watchman in the Hyderabad Agricultural Committee. Consequent upon the State’s reorganisation, the appellant had gone to and joined the service of the Krishi Utpadan Bazar Samiti at Jalna district. He retired from service on April 1, 1991 after completing about 35 years of service. His qualifying service was computed w.e.f. October 1, 1969. He claimed the service from the date of his appointment. It was denied on the ground that he started contributing towards Provident Fund w.e.f. the aforesaid date and, therefore, his pensionary benefit required to be computed from that date. 3. Clause 23 of Chapter VI in the scheme reads as under: “Qualifying service of a Market Committee employee shall commence from the date he takes charge of the post to which he is first appointed or from the date of employer started deducting the P.F. contribution for the employee which ever later.” 4. A reading clearly indicates that the qualifying service is from the date he takes charge of the post to which the was first appointed or from the date the employer started deduction of provident fund from the employee, whichever is later. Pension is not a bounty of the State. It is earned by the employee for service 4 rendered to fall back, after retirement. It is a right attached to the office and cannot be arbitrarily denied. Therefore, we read down the rule. We hold that reading the rule which is “later” must be read down to whichever is “earlier”. If so read, the rule is valid. Otherwise, it would be arbitrary offending Article 14 of the Constitution. Mr. Khanwilkar, learned counsel for the respondent contending that the appellant is not entitled to the D.A.; on the other hand, learned counsel for the appellant contended that pursuant to the order passed by the High Court to pay D.A. resolution had already been passed by the Committee and the D.A. has already been paid to him.” Having given our thoughtful consideration to the contention advanced by the learned counsel for the petitioner based on the decision rendered by the Apex Court in Vasant Gangaramsa Chandan’s case (supra), we are of the view that the submission advanced by the learned counsel for the petitioner is unacceptable in law. There is no question of treating the service rendered by the petitioner in the U.P. Chal Chitra Nigam Limited, on account of the admitted position, that service rendered in the U.P. Chal Chitra Nigam Limited would not have lead to any pensionary benefits. Thus viewed, the employment of the petitioner in the U.P. Chal Chitra Nigam Limited was also under the accepted condition that service rendered therein would not entitle to the petitioner to any pensionary benefits. 8. In view of the above, we are of the view, that the judgment relied upon by the learned counsel for the petitioner is not applicable to the facts and circumstances of this case. We are also of the view, that it is not acceptable to read down the conditions stipulated in Paragraph 5 of the Government Order dated 6.3.1990 so as to take into consideration service rendered by the petitioner in the U.P. Chal Chitra Nigam Limited as qualifying service. Thus viewed, it is not possible for us even to read the date of the petitioner’s absorption into the service on 23.9.1991 with effect from the date of issuance of the Government Order dated 6.3.1990. 9. For the reasons recorded hereinabove, we find no merit in the instant Writ Petition and the same is accordingly hereby dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 15.07.2010 Rathour