SBCWP NO.829/98. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.829/1998. Rakesh Gupta Versus The Rajasthan Housing Board Date of Order:- March 26, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Prahlad Singh for the petitioner. Shri Shyam Arya for the respondents. ******* BY THE COURT:- This writ petition was filed in the year 1998 with the prayer that respondent-Rajasthan Housing Board be directed to count entire service rendered by the petitioner w.e.f. 15/6/1956 till date of his retirement on 31/8/1994 as qualifying service for the purpose of pension and other pensionary benefits such as Gratuity, Commutation of Pension and accordingly, Rajasthan Housing Board may be directed to revise his pension and retiral benefits by counting service rendered by the petitioner with the Sate Government in the initial phase for the period from 15/6/1956 till he was appointed with the Rajasthan Housing Board on 25/11/1972 as Divisional Accountant. 2) Petitioner entered the services of the SBCWP NO.829/98. 2 State Government in its Community Development and Panchayat Raj Department having been appointed as Clerk on 15/6/1956. He was thereafter appointed with the Rajasthan Housing Board on 25/11/1972 on the post of Divisional Accountant. His appointment was made on the basis of application submitted by petitioner in response to the advertisement issued by the Rajasthan Housing Board. When petitioner was selected, he applied and was granted extraordinary leave in terms of Rules 23 and 64 of the Rajasthan Service Rules, 1951 in view of the Circular dated 18/8/1972 for a period of one year to join the duties in the Rajasthan Housing Board vide order dated 25/11/1972. On attaining the age of superannuation, petitioner retired from the services of Rajasthan Housing Board on 31/8/1994. However, he was not paid retiral benefits and pension for the services rendered by him with the State Government. Aggrieved thereby, he approached this Court by filing present writ petition. 3) Shri Prahlad Singh, learned counsel for petitioner has argued that Government vide its order dated 11/6/1974 conveyed sanction of the Government to transfer services of the petitioner to the Rajasthan Housing Board, Jaipur for permanent absorption therein on the post of Divisional Accountant w.e.f. 26/11/1973. It was clearly stated that petitioner shall be entitled to all service benefits as per Circular of the Finance SBCWP NO.829/98. 3 Department No.F.1(48) F.D. (Rules)/68 dated 10/4/1969 read with order of the Finance Department dated 14/11/1970 w.e.f. 26/11/1973. Learned counsel submitted that the Rajasthan Housing Board issued an order on 16/2/1974 by which, petitioner's services were confirmed with them w.e.f. 25/11/1973 subject to the condition that persons already senior to him will not loose seniority and that his confirmation will not disturb the seniority of other Accountants. Copy of that order passed by the Government was forwarded to the Rajasthan Housing Board and the Director, Community Development and Panchayat Raj Department (erstwhile employer of petitioner) stating therein that since petitioner has been confirmed and permanently absorbed with the Rajasthan Housing Board, he may be allowed service benefits in terms of the Circular of the Finance Department dated 10/4/1969. Rajasthan Housing Board acting on such circular has granted to the petitioner the service benefits and also counted service rendered by the petitioner to the State Government for the purpose of grant of Selection Scale and that leave account of the petitioner was transferred by the State Government to the Rajasthan Housing Board but in so far as petitioner's retiral benefits are concerned, the period of service rendered by the petitioner with the State Government was not counted. Learned counsel invited the attention of the court towards SBCWP NO.829/98. 4 the Finance Department Memo No.F.1(48) F.D. (Rules)/68 dated 10/4/1969 by which, reference is found in the Government order as also issued by the Rajasthan Housing Board referred to supra. It is contended that the Finance Department in the said memo clearly provided that the Pension/Gratuity as admissible under the Rajasthan Service Rules, service rendered by such an employee in the Government at the end of 5 years or at the age of superannuation, within 65 years, whichever is more, he shall be entitled to pension. 4) Shri Prahlad Singh, learned counsel further submitted that specific instructions issued subsequently by the Government of Rajasthan have provided for a complete set of procedure to regulate the service conditions of such employees in so far as payment of their pension and retiral benefits are concerned. Learned counsel in this connection referred to the Section-I of Appendix-IX of the Rajasthan Pension Rules, 1996 which inter- alia provides that question of granting terminal benefits to the Rajasthan Government servants shall be dealt with on the terms and conditions contained in that circular. It was provided that a Government servant, who has been selected for post in a State public enterprise/autonomous body will be required to give him/her technical resignation before his relieve from Government. The Government servant may thereafter be relieved by the respective Department SBCWP NO.829/98. 5 to take up appointment in the PSU/autonomous body. Regarding pensionary benefits, it provided that if a Government servant secure employment in a State public enterprise/autonomous body with proper permission, it will not entail forfeiture of the service for the purpose of retirement/terminal benefits. However, such government servants would be at liberty to opt within a period of six months of the date of his resignation to either count the service rendered under the Rajasthan Government for pension in public sector undertaking/autonomous body; or to receive pro rata retirement benefits for the service rendered under the Rajasthan Government. It was further provided that the option shall be exercised in writing. The option once exercised shall be final. In case no option is exercised within the stipulated period, the Government servant will be deemed to have opted in favour of sub clause (a) above. In case the Government servant opts in favour of sub-clause (b) of clause (A), he will have further option which will also have to be exercised alongwith the option referred to in clause (A) above:- (a) either to receive pro rata monthly pension, (b) or to receive a lump sum amount in lieu of monthly pension. In case no specific option is indicated by him in this behalf, he will be deemed to have opted in favour of sub clause (a) of this clause. SBCWP NO.829/98. 6 5) It is contended that second proviso of Appendix-IX of the Rules of 1996 further provided that in case the Government servant opts in favour of sub-clause (a) of clause (A) above, he will be eligible to draw pension in accordance with the rules of the Public Sector Undertaking/Autonomous Body (organization) for the combined service under the Rajasthan Government and that under the Public Sector Undertaking/Autonomous Body (organization) ion his final retirement from that body. If he resigns from service of the Public Sector Undertaking/A.B. (organization), his resignation will be treated as resignation from Rajasthan Government service entailing forfeiture of past service including that under the Government and consequent loss of pensionary benefits for the combined service. This is based on the memo dated 23/9/1988 read with 19/8/1988 issued by the Pension Department of the State Government with the approval of the Governor of the State. It provides that the State Government will discharge its pension liability by paying in lumpsum as a one- time payment, the prorata pension/Service gratuity/Death cum Retirement Gratuity for the service upto the date of absorption in each statutory body. The lumpsum amount of prorata pension will be determined as per the condition laid down in the Rajasthan Civil Services SBCWP NO.829/98. 7 (Commutation of Pension) Rules, 1981 as revised from time to time. Petitioner has not received any benefit from the State Government and that State Government was required under the law to have transferred its prorata share of pension to the Rajasthan Housing Board. In that case, petitioner was entitled to be paid pensionary/retiral benefits. Learned counsel submitted that in fact petitioner on his own applied and was appointed and thereafter permission of the State Government to be relieved for doing the services of the Rajasthan Housing Board would not make any difference in the finance memo dated 10/4/1969. Such a situation has already been taken note of by the Government which has consciously passed the order that as to what treatment should be accorded to the government employee applied for direct recruitment, who has already been appointed and were subsequently transferred to the public sector undertaking and thereafter the Government issued the aforesaid Circular giving provision with regard to terminal benefits. Section 3 (iii) of Appendix-IX of the Rules of 1996 clearly provides that in case of the State Government servants absorbed in a Central Autonomous body/Statutory body the authority in favour of the concerned Head of the Department for payment of lump sum amount to the concerned body shall be issued by the Director, Pension Department, Rajasthan, Jaipur and if it is done, SBCWP NO.829/98. 8 petitioner would be entitled to receive pensionary and retiral benefits from the date of his initial appointment till he retired from the services of the Rajasthan Housing Board. 6) Shri Shyam Arya, learned counsel for the respondent-Rajasthan Housing Board opposed the writ petition and submitted that appointment of the petitioner with the Rajasthan Housing Board was fresh appointment as would be evident from the order dated 21/9/1972 (Ann.R/1). It was neither appointment by way of transfer nor absorption with the State Government. Learned counsel submitted that endorsement part of the order dated 16/2/1974 (Ann.3) cannot be taken as part of the order. In the endorsement made by the Director, it has been erroneously written that petitioner has been confirmed and permanently absorbed in the Housing Board therefore he may be allowed service benefit as per Circular of the Finance Department dated 10/4/1969. That would not be a reason to direct the Housing Board to pay pensionary/retiral benefits for the entire service rendered by him. It was further argued that the transfer and absorption either in the State Government or the Rajasthan Housing Board, is made on equivalent post therefore, petitioner cannot be taken to have been legally transferred/absorbed on the post of Divisional Accountant because in the Government of Rajasthan, he was on lower post. Learned counsel SBCWP NO.829/98. 9 therefore submits that writ petition be dismissed. 7) Upon hearing learned counsel for the parties and perusing the material available on record, I find that although it may be a fact that petitioner was appointed with the Rajasthan Housing Board on the basis of his application submitted in response to the advertisement issued by the Housing Board but then equally true is the fact that petitioner was relieved by the State Government with clear understanding that he may be joining services with the Housing Board and this was done in terms of Rules 23 & 64 of the RSR read with Circular dated 18/8/1972 and for that purpose, petitioner was granted leave for the period of one year. The said order was issued with the concurrence of the Department of Personnel dated 24/11/1972. Order dated 11/6/1974 issued by the Special Secretary to the Government in its Department of Panchayat Raj is also on record conveying thereby sanction of the government to transfer services of the petitioner to the Rajasthan Housing Board for permanent absorption therein as Divisional Accountant w.e.f. 26/11/1973. In that order, he was held entitled to all services benefits as per Memo of Finance Department dated 10/4/1969 read with another Finance Department’s order dated 14/11/1970. It is in that light that endorsement made in the order of the Housing Board dated 16/2/1974 has been understood where Housing SBCWP NO.829/98. 10 Board clearly stated that petitioner was confirmed and permanently absorbed and petitioner would be allowed pensionary benefits as per Finance Department Memo dated 10/4/1969. Memo of the Finance Department dated 10/4/1969 was issued purposely to cover the cases of such government servants, who on their own applied for direct recruitment and thereafter went on deputation on his own choice and was subsequently given regular appointment in various autonomous bodies/public sectors. Order was also extended to cover cases of those, who may be appointed by way of transfer to an autonomous body/public sector. With a view to providing procedure of payment of pensionary benefits to such employees, such memos were issued. Subsequently however a more comprehensive and detailed Circular was issued on 23/9/1998 followed by another Circular dated 19/8/1999. Earlier memos issued in this respect on 8/9/1970 and 25/1/1984 were substituted by above referred to two memos. Therein, it was also indicated that employees, who were taken in the State Government services or vice-versa from Central Autonomous Bodies/Statutory bodies, the State Government will discharge its pension liability by paying in lumpsum as a one- time payment, the Prorata Pension/Service Gratuity/Death cum Retirement Gratuity for the service upto the date of absorption in each statutory body. The lumpsum amount of prorata SBCWP NO.829/98. 11 pension will be determined as per the condition laid down in the Rajasthan Civil Services (Commutation of Pension) Rules, 1981 as revised from time to time. Section 3 (iii) of Appendix-IX of the Rules of 1996 clearly provides that in case of the State Government servants absorbed in a Central Autonomous body/Statutory body the authority in favour of the concerned Head of the Department for payment of lumpsum amount to the concerned body shall be issued by the Director, Pension Department, Rajasthan, Jaipur. 8) In view of the discussion made above, writ petition is allowed. State Government is directed to grant lumpsum one-time payment to the petitioner, which may be determined with reference to the provisions contained in Section-I & and Section-III of the Rajasthan Pension Rules, 1996 within a period of two months from the date copy of this order is furnished to the Rajasthan Housing Board. Within two months thereafter, Rajasthan Housing Board shall revise pensionary/retiral benefits of the petitioner by computing entire service rendered by the petitioner from the date of his initial appointment i.e. 15/6/1956 till he retired from the services of the Rajasthan Housing Board on 31/8/1994. (MOHAMMAD RAFIQ), J. anil