IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL NO. 1024 OF 2007 Between: M/s. Mineral Exploration Corporation Limited, Rep. By its Chairman & Managing Director, Seminari Hills, Nagpur and another ..... APPELLANTS AND A.Govinda Rao and others .....RESPONDENTS THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL NO. 1024 OF 2007 JUDGMENT: (Per the Hon’ble Smt. Justice T.Meena Kumari ) Aggrieved by the order dated 07.03.2007 made in W.P. No.28503 of 1997 allowing the writ petition and directing the appellants herein to take into account the services rendered by the first respondent from 22.09.1972 to 22.04.1977 in Geological Survey of India for the purpose of calculation of retirement benefits and to consider his absorption in the capacity of Assistant Chief Mining Engineer as per the order dated 11.10.1989 and pay all the consequential benefits, within a period of four months therefrom, the present Writ Appeal is filed. The first respondent, an employee of Geological Survey of India (for brevity Survey of India) working as Shift Boss, was deputed to Mineral Exploration Corporation Limited (for brevity Corporation) as Shift Boss with effect from 17.12.1973 and was repatriated to the Survey of India on 1.5.1976. Again in pursuance of the proceedings dated 30.03.1977, he was deputed to the Corporation and joined on 23.04.1977. Thereafter, the first respondent was promoted as Junior Mining Engineer, which is a selection post, on 16.02.1978, which was accepted by him by letter dated 18.03.1978 and also confirmed by proceedings dated 2.05.1979. By proceedings dated 28.4.1982, the Survey of India has informed the employees working on deputation that they are rendered surplus and, as such, they were given option to either agree for the transfer of their services to the Corporation or continue to function in the Survey of India subject to the condition that their services are liable to be retrenched inasmuch as there are no posts available for them in residual Survey of India. Since the first respondent had not exercised clear option, reminders were issued on 3.6.1982 and 22.2.1983. In the meanwhile, on 20.10.1983, the first respondent was promoted to the post of Senior Mining Engineer. The first respondent by letter dated 9.4.1983 and 6.7.984 has opted to be absorbed by the Corporation from any date the Government decides. The first respondent was again promoted as Assistant Chief Mining Engineer with effect from 4.11.1986. While so, by proceedings dated 11.10.1989, the first respondent was permanently absorbed a Shift Boss in the Corporation with effect from 23.04.1977 which was communicated to the first respondent by proceedings dated 8.11.1989 and accepted by him through his letter dated 3.3.1990 and requested to calculate the arrears of contributory provident fund with interest from 23.4.977. Thereafter, pursuant to the notification dated 21.10.1995, notifying voluntary retirement scheme, the first respondent opted for the same, which was accepted by the Corporation and relieved the first respondent with effect from 31.7.1997 and he has received all the retirement benefits. It is the case of the first respondent that since he was constantly asked to exercise option to be absorbed in the Corporation by the government, he has selected 1.10.1982 as the date, inasmuch he would be completing ten years of service in the Survey of India as a permanent employee and would certainly be getting prorata pension and terminal benefits. It is his further case that he was informed by the Corporation that his representation was sent to the Ministry of Mine with regard to the date of absorption from 1.10.1982, but there was no response. The first respondent, thereafter, sent several representations, which have not seen light of the day. Thereafter the appellant had issued letters dated 27.2.1989 and 15.6.1989 asking him to exercise his option from 23.04.1977 in Form No.I, which he did not exercise. Ultimately, the Government of India, by proceedings dated 11.10.1989 has absorbed the first respondent from 23.04.1977 in the cadre of Assistant Chief Mining Engineer and, consequently, the Corporation by proceedings dated 8.11.1989 absorbed his services in the cadre of Shift Boss. Aggrieved by the action of the appellants, the first respondent herein filed the above Writ Petition seeking to declare the action of the respondents 4 and 5 in negativing his representation as arbitrary and illegal and consequently to declare the proceedings No.21(112)/Admn/VRS/Mining/Vol-IV/881 dated 01.08.1997 issued by the first appellant as arbitrary and illegal and to treat his services to have been absorbed in the Corporation with effect from 12.10.1989 in the cadre of Assistant Chief Mining Engineer and grant him all consequential benefits therefrom and to pay pro-rata pension and retirement benefits for the services rendered by him in Survey of India from 22.09.1972 to 11.10.1989 and to grant him all consequential benefits accrued thereon. The first respondent also sought an alternative prayer to direct the appellants to count his services as the services rendered in the Corporation from 22.09.1972 till 31.07.1997 for the purpose of calculating benefits such as EPF, increments, promotion, consequential pay fixations, pay revisions, pension, exgratia etc., including terminal benefits consequent to his voluntary retirement and pay all the consequential difference amounts within a specified time. He further prayed to direct the appellants to treat as if he was absorbed in the cadre of Assistant Chief Mining Engineer as ordered by the Government of India while approving his absorption and grant him all consequential benefits accrued therefrom including pay and allowances, promotions, differences of pay and allowances, exgratia, pension, EPF and other monetary benefits basing on that absorption in the cadre of Assistant Chief Mining Engineer. The case of the appellants herein is that the date of absorption of the first respondent into the Corporation as 23.04.1977 is fixed by the Government of India along with the post, by proceedings dated 10.11.1989, which was communicated to the first respondent on 8.11.1989. Since the first respondent was promoted as Assistant Chief Mining Engineer by the appellants even prior to his absorption date i.e. 23.04.1977 on the post of Shift Boss, decided by the Government of India, the contention of the first respondent that the appellants did not absorb him in the cadre of Assistant Chief Mining Engineer as indicated in the Proceedings of the Government dated 11.10.1989 has no substance. It is further contended that in view of the Government of India fixing the date and the post, the appellants had no role to play. It is further their case that the first respondent having accepted the proceedings dated 11.10.1989 issued by the Central Government fixing the date of absorption and post, by his letter dated 3.3.1990 and having requested to calculate the arrears of contributory provident fund with interest from such date i.e. 23.04.1977, is estopped from contending that the date of his absorption ought to have been fixed as 1.10.1982. The learned Single Judge, by the order impugned, has allowed the writ petition holding that the first respondent is not only entitled for absorption as Assistant Chief Mining Engineer with effect from 23.04.1977 as per order dated 11.10.1989 but also entitled to compute the services rendered by him from 22.09.1972 to 22.04.1977 for the purpose of retiral benefits by the Corporation and accordingly directed the appellants to take into account the services rendered by the petitioner from 22.09.1972 to 22.04.1977 for the purpose of calculating retiral benefits, and to also consider that the petitioner is entitled for absorption in the capacity of Assistant Chief Mining Engineer as per the order dated 11.10.1989 and to pay all the consequential benefits to him within a period of four months therefrom. Aggrieved thereby, the Corporation preferred this appeal inter alia contending that the purport of the proceedings dated 11.10.1989 issued by the Government of India is that the first respondent who is working as Asst. Chief Mining Engineer is absorbed in the Corporation as Shift Boss and the direction of the learned Single Judge to absorb him as Assistant Chief Mining Engineer is contrary to the promotion policy and the proceedings dated 11.10.1989 issued by the Government of India. It is also contended that the direction of the learned Single Judge to take into account the services of the first respondent from 22.9.1972 to 22.4.1977 for the purpose of calculating retirement benefits is not supported by any Rule, Regulation or cogent reason. The chequered events in the service of the first respondent and the dates as mentioned in the foregoing paragraphs are not in dispute. It is also not in dispute that the first respondent – employee has opted for voluntary retirement, which was accepted and he was retired on 31.07.1997 from services of the Corporation on voluntary retirement. At the outset, adverting to the contention of the learned counsel for the appellants that the first respondent is entitled to opt for the date of his absorption from 1.10.1982 inasmuch as he will be completing ten years from the date of joining (22.9.1972 in the Survey of India as Shift Boss), is untenable for the simple reason that the Government of India has passed the order dated 11.10.1989 absorbing his services in the Corporation from 23.04.1977 in the cadre of Shift Boss. This order was communicated to the first respondent on 8.11.1989 which was accepted by him by letter dated 3.3.1990 and requested to calculate the arrears of contributory provident fund with interest from 23.04.1977, the date of absorption determined by the Government of India. It is urged by the learned counsel for the first respondent that he has not exercised the option to be absorbed in the Corporation from 23.04.1977. The material filed in support of the writ petition would show that the first respondent herein has not exercised option in Form – I inspite of issuing reminders on 3.6.1982 and 22.2.1983, but, however, later by letter dated 9.4.1983 and 6.7.1984 he exercised his option to be absorbed by the Corporation from any date the Government decides. By letter dated 6.7.1984 he has sought certain clarifications and requested to keep the monetary loss to a minimum that he would be sustaining. By letter undated, the first respondent has withdrawn his earlier letters opting for absorption. By letter dated 23.02.1988, the Chief Manager (Personnel &Admn.) has informed the Ministry, Department of Mines that in view of the fresh unconditional option exercised by the first respondent, for permanent absorption in the Corporation, with effect from the date which the Government may decide, the option exercised by the first respondent for permanent absorption with effect from 1.10.1982, may be expedited. Thereafter, the Government of India, Department of Mines, issued Proceedings No.A-35018/5/89-M.II-R dated 11.10.1989 fixing the effective date of permanent absorption as 23.04.1977 forenoon as Assistant Chief Mining Engineer in the Corporation. Pursuant to this proceedings, the Corporation has issued Proceedings No. 21(183)/Admm/88/Vol.III/ 3500 dated 8.11.1989 informing the first respondent that he is absorbed in the Corporation on permanent basis with effect from 23.04.1977 as Shift Boss and shall continue his appointment as Assistant Chief Mining Engineer. The first respondent while accepting the same, vide his acknowledgement dated 3.3.1990, has requested the Corporation to arrange to calculate the arrears of contributory provident fund with interest from 23.04.1977 and arrange to deposit the same. The counter filed by appellants herein makes it abundantly clear that the first respondent was promoted to the post of Asst. Chief Mining Engineer even prior to the date of proceedings decided by the Government, absorbing him on permanent basis. In the said premise, the contention of the first respondent that though the Government has ordered for his absorption as Assistant Chief Mining Engineer, he was absorbed as Shift Boss, cannot be sustained. It is not in dispute that the first respondent opted for voluntary retirement and got relieved on 31.07.1997 and has received the entire retirement benefits. As seen above, the first respondent was permanently absorbed in the Corporation by the proceedings of the Ministry of Mines dated 11.10.1989, which was communicated to him by letter dated 8.11.1989 and accepted by him by his letter dated 3.3.1990 and received the entire retirement benefits pursuant to voluntary retirement. Having accepted the date of permanent absorption and having received the entire retirement benefits, the first respondent, for the reasons unexplained has chosen to file the present writ petition after eight long years. That apart, after acceptance of the date of permanent absorption as 23.4.1977 in the Corporation, as can be seen from the counter, the first respondent was promoted as Senior Mining Engineer from 20.10.1983 and as Asst. Chief Mining Engineer with effect from 4.11.1986. Having accepted the date of permanent absorption as long back as on 3.3.1990, the first respondent did not chose to assail the same, which becomes all the more necessary in view of his assertion that he did not exercise option in Form-I. Having accepted the voluntary retirement and after retirement, such a contention cannot be countenanced at this belated stage. It is the alternative case of first respondent that his services from 22.9.1972 till 31.7.1997 shall be considered in the Corporation and he is entitled to be paid retirement benefits in accordance therewith. The events of service of the first respondent enumerated above, makes it clear that there is no continuation of service in the Corporation earlier to 23.04.1977, from which date the first respondent was permanently absorbed in the Corporation. Therefore, in view of these facts, we are of the considered view that the learned Single Judge ought to have directed the Survey of India to consider the representation of the first respondent for payment of the retirement benefits, as sought for by him. In view of the above facts, the prayer of the first respondent to consider his services in the Corporation with effect from 22.9.1972 till 31.7.1997 for the purpose of calculating retirement benefits pursuant to his voluntary retirement on the post of Assistant Chief Mining Engineer, cannot be accepted inasmuch as he was not born on such a cadre on the rolls of the Corporation, as observed above. Admittedly, the first respondent was promoted as Assistant Chief Mining Engineer with effect from 4.11.1986 i.e. much earlier to the date of his permanent absorption in the Corporation as Shift Boss with effect from 23.4.1977 by Order of the Ministry of Mines dated 11.10.1989, which he has accepted by letter dated 3.3.1990 and sought for the settlement of contributory provident fund with interest from 23.4.1977. It is also not in dispute that the first respondent was not born on the cadre of Assistant Chief Mining Engineer as on 23.04.1977. Therefore, the finding of the learned Singe Judge that the first respondent is entitled for absorption as Assistant Chief Mining Engineer with effect from 23.04.1977 as per the order dated 11.10.1989 is not based on any acceptable material or can be said to be rational in the facts and circumstances of the case. For the reasons aforesaid, the Writ Appeal is allowed modifying the impugned order and holding that the first respondent is entitled to claim the retirement benefits, in accordance with law, for the period from 22.09.1972 to 22.04.1977 from the Survey of India viz., Respondents 3 and 4 herein. No order as to costs. _____________________ Justice T. Meena Kumari __________________ Justice Sanjay Kumar October 20, 2009 MAS