SBCWP No.959/05. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.959/2005. Narendra Prakash Tuli Vs. The Additional Chief Engineer Rajasthan RPS & JS Dams, Kota & Ors. Date of Order :- November 24, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri D.P. Sharma for the petitioner. Shri Hemant Mathur, Deputy Government Counsel. ****** BY THE COURT:- Petitioner Narendra Prakash Tuli has approached this Court aggrieved by non-inclusion of period of his service rendered to the Government from 26/11/1966 to 31/7/1970 as part of qualifying period of service while computing his Pension, Gratuity and other retiral dues. 2) Facts of the case are that petitioner was factually appointed with the State Government in the office of Chief Engineer Rana Pratap Sagar and Jawahar Sagar Dams Chambal Project Kota vide order dated 25/11/1966 as Engineering Subordinate (Electrical & Mechanical) for a period of six months on temporary basis in first instance on the terms and conditions as indicated therein. According to Condition No.5 of the appointment order, the appointment would be governed by the relevant government rules and as amended from time to time. SBCWP No.959/05. 2 3) Shri D.P. Sharma, learned counsel for the petitioner has argued that when the project was completed, services of the petitioner were transferred to the erstwhile Rajasthan State Electricity Board in terms of Chief Engineer Rana Pratap Sagar and Jawahar Sagar Dams Chambal Project Kota vide order dated 1/8/1970 directing him to report duty in the office of Executive Engineer (O & M) R.P.S. Power Station, RSEB Rawatbhata for further posting. Petitioner then was promoted as Assistant Engineer and finally retired from services of the RSEB on 30/6/2002. While computing his pensionary benefits and retiral benefits, the respondents Rajasthan State Electricity Board now splitted in Rajasthan Vidhyut Vitran Nigam Ltd., Rajasthan Vidhyut Prasaran Nigam Ltd., Rajasthan Vidhyut Utpadan Nigam Ltd. etc. etc. did not count the earlier service rendered by the petitioner with the State Government for the purpose of pensionary benefits. Learned counsel for the petitioner in support of his argument has relied on Rule 12 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short, the “Rules of 1996”) to argue that even temporary services which is followed by regular appointment is liable to be counted towards the qualifying period of service for the purpose of pension. He has also relied on Appendix-IX of the Rules of 1996 to argue that in Sections I & III thereof, provisions have been contained that how the cases of government servants, who were transferred to SBCWP No.959/05. 3 the Public Sector Undertaking and Autonomous Body and retired shall be regulated. It is therefore prayed that respondents be directed to count the aforesaid period as part of qualifying period of service for the purpose of pension, leave encashment and other retiral benefits. 4) None has appeared for respondents No.2 and 3 despite service of notice. 5) Shri Hemant Mathur, learned counsel appearing for respondent No.1 has opposed the writ petition and submitted that services of the petitioner stood transferred from the office of Chief Engineer Rana Pratap Sagar and Jawahar Sagar Dams Chambal Project Kota (respondent No.1) to the office of Executive Engineer (O & M) R.P.S. Power Station, RSEB Rawatbhata (respondents NO.2 & 3) therefore respondents No.2 and 3 are liable to pay the retiral dues to the petitioner. Even otherwise, petitioner has hardly served with the Government for 4 years whereas, requisite minimum length of service of a Government servant should be 10 years towards counting the service as qualifying period of service for the purpose of grant of pension in the Government. 6) No reply to the writ petition has been filed on behalf of respondents No.2 and 3 however, on perusal of Section I of Appendix-IX of the Rules of 1996, I find that Government of Rajasthan has laid down the provisions as to how cases of those Government servants for grant of pensionary benefits, SBCWP No.959/05. 4 who gone to the State Enterprises on temporary basis shall be considered. In clause (1)(i) thereof, it is provided that even if a government servant submits a technical resignation for joining a State public enterprise / autonomous body with proper permission will not entail forfeiture of the service for the purpose of retirement / terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/ terminal benefits as admissible under the relevant rules applicable to him in his parent organization. A Government servant eligible for pension and selected / absorbed in a State enterprise / autonomous body having a pension scheme should exercise an option within six months of the date of his resignation, for either of the following two alternatives - (a) either to count the service rendered under the Rajasthan Government for pension in public sector undertaking/autonomous body, (b) or to receive pro rata retirement benefits for the service rendered under the Rajasthan Government. 7) It is not the case of the petitioner that he ever received pro rata retiral benefits of the services rendered to the State Government. It is also not the case set up by the respondents that petitioner was given opportunity but he did not opt for counting the earlier period towards service under the RSEB for pension. But in such eventuality also, clause (C) of SBCWP No.959/05. 5 clause (4) of Section I provides that 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) which is that services of the government servant shall be counted under the Rajasthan Government for pension in public sector undertaking / autonomous body. In the event of his option in favour of sub- clause (a) of clause (C), he will draw pro rata pension and retirement gratuity for the service rendered under the Government. He will also be eligible to commute upto one-third of his pension from the State Government in accordance with the Rules of 1996 in case contributory fund is required to be contributed by the government. 8) Thus, in my considered view, the period of service rendered by the petitioner with the State Government w.e.f. 26/11/1966 to 31/7/1970 would be liable to be counted towards qualifying period of service for the purpose of grant of pro rata pension and other retiral benefits. 9) In the result, writ petition is allowed. Respondents are directed to count the period of service rendered by the petitioner from 26/11/1966 to 31/7/1970 towards qualifying period of service with the State Government for the purpose of pensionary benefits and other retiral benefits. Respondent No.1 would liable to pay pro rata pension contribution to respondents No.2 and 3 towards Pension, Gratuity etc. as per demand raised by respondents No.2 and 3. SBCWP No.959/05. 6 This however, should not be a reason to delay or deny such benefit to the petitioner which the respondents No.2 and 3 would be independently liable to pay to the petitioner. Other consequential benefits together with interest @6% would also be payable to the petitioner. 10) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil