SBCWP NO.4641/06. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4641/2006. Dr.Purshottam Nagar Versus State of Rajasthan & Anr. Date of Order:- February 18, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahendra Singh for the petitioner. Shri anant Bhandari for the respondents. ***** Reportable BY THE COURT:- This writ petition has been filed by the petitioner with the prayer to issue a direction to grant him benefit of Pension including GPF and Leave Encashment on the basis of services rendered by him to the government from the date of his initial appointment as Lecturer. 2) Factual matrix of the case is that petitioner was appointed as Lecturer in the government college after due selection through Rajasthan Public Service Commission on 13/7/1966. He continued to serve the government till end of the year 1981 when he was posted as Director Rajasthan Hindi Granth Academy vide order dated 20/12/1981 at SBCWP NO.4641/06. 2 the time when he was working on the post of Principal, Shri Pareek College Jaipur. In that order, appointment of the petitioner was described as one on probation for a period of two years and it was noted that his appointment was made on the basis of recommendation of the selection committee and with the approval of the State Government but then his services were terminated vide order dated 8/1/1985. Joint Director College Education Rajasthan Jaipur then passed an order on 28/11/2005 informing the petitioner that since his period of deputation came to an end on 8/1/1985 with discontinuation of his service from the post of Director, he should join back with his parent department. He has neither sent any information nor joined the services in the Directorate and, therefore, he was willfully absenting from duties. It was stated that in case petitioner fail to report within 10 days, appropriate disciplinary action shall be taken against him. Petitioner filed writ petition being SBCWP No.100/1985 challenging the order of removal as Director, supra. However, in the meantime, government passed an order on 20/1/1990 allowing petitioner to continue to discharge the duties of the post of Director withdrawing its earlier order dated 8/1/1985. It was thereafter that vide order dated 25/1/1990 passed by President of the Rajasthan Hindi Granth Academy, petitioner was confirmed on SBCWP NO.4641/06. 3 the post of Director Rajasthan Hindi Granth Academy w.e.f. 1/1/1984, on completion of period of two years from the date of initial appointment. 3) Apprehending that he might again be removed, petitioner filed another writ petition being SBCWP No. 1185/1990 sometime in the year 1990 which writ petition was dismissed on 7/3/1991 being premature. Petitioner filed special appeal against the said judgment however, the Division Bench while upholding judgment of the learned Single Judge, additionally held that Rajasthan Hindi Granth Academy not being a State within the meaning of Article 12 of the Constitution, writ petition otherwise would not be maintainable. Petitioner thereupon approached the Supreme Court by fling Special Leave to Petition. Supreme Court dismissed the SLP but kept the issue as to whether Rajasthan Hindi Granth Academy is State within the meaning of Article 12 or not, open. Government thereafter passed another order on 31/3/1992 cancelling its earlier order dated 25/1/1990 w.e.f. 8/1/1985. Petitioner filed writ petition against this order being SBCWP No.3489/1992 which was dismissed by the co-ordinate Bench of this Court vide judgment dated 28/3/2006. Petitioner filed special appeal against this judgment, which is presently pending. In the meantime, petitioner attained the age of superannuation on 28/8/1999. It is against the SBCWP NO.4641/06. 4 backdrop of these facts that the present writ petition has been filed with the aforesaid prayer. 4) Shri Mahendra Singh, learned counsel for petitioner has argued that petitioner was appointed with the government in its department of higher education after due selection from Rajasthan Public Service Commission. His appointment was made on the post of Lecturer in Political Science. He became government employee as far as back on 13/7/1966. Contribution of Provident Fund was deducted from his salary towards his GPF Account No.RQ-3/49591. Deduction was also made towards State Insurance being SI Account No.244748 from his salary as Director Rajasthan Hindi Granth Academy. Learned counsel contended that dispute between the petitioner and Rajasthan Hindi Granth Academy on the question of correctness of his removal as Director thereafter is the subject matter of challenge in his appeal pending before the Division Bench but then for that reason, he cannot be deprived of his retiral dues including Pension, Gratuity, GPF and Leave Encashment in so far as services rendered by him to the State Government concerned. Learned counsel submitted that petitioner was confirmed as Director vide order dated 25/1/1990 and therefore by virtue of Rules 15 and 16 of RSR, his lien would continue with the Government on the post held by him till he was not confirmed. Learned counsel submitted SBCWP NO.4641/06. 5 that the government servant appointed on substantive basis against any permanent post, holds his lien on that post which cannot be terminated even with his consent if result that he shall be left without any lien on another post after his substantive appointment on another post. It is submitted that qualifying period of service for grant of pension with the government is 10 years and since petitioner had completed more than 10 years from the date of initial appointment i.e. w.e.f. 13/7/1966 till 20/12/1981 and thereafter till he was confirmed as Director w.e.f. 25/1/1990, he would be by virtue of provisions contained in Rule 179 read with Rule 256C of the Rajasthan Service Rules (Vol.1 Part-B) is entitled to receive the retiral benefits. 5) Shri Anant Bhandari, learned counsel for respondents opposed the writ petition and submitted that once the petitioner was appointed as Director, Rajasthan Hindi Granth Academy vide order dated 20/12/1981 he ceased to be in service of the government. His appointment on that post was made by the Chairman of the Board. His services as Director were terminated vide order dated 8/1/1985 but subsequently this order was cancelled vide order dated 2/1/1990. In any case, he was confirmed as Director vide order dated 25/1/1990 w.e.f. 1/1/1984 and therefore even if it is assumed that eventually subsequent order of terminating his services dated SBCWP NO.4641/06. 6 31/3/1992 is annulled by this Court in special appeal, that would result in revival of that order by which, he was confirmed as Director on completion of the probation w.e.f. 1/1/1984 therefore there can be no question of petitioner claiming pension for the service beyond that date. Learned counsel submitted that even otherwise service with the Rajasthan Hindi Granth Academy not being in a pensionable establishment, could not qualify requirement of Rule 13 of the Rajasthan Civil Service Pension Rules, 1996 and therefore also for any subsequent period beyond 20/12/1981, petitioner would not be entitled to pension from the government. 6) Having heard learned counsel for the parties, I perused the material on record and given my thoughtful consideration to the rival submissions in the light thereof. 7) Although, it may be true that the special appeal filed by the petitioner is separately pending before the Division Bench of this Court but therein the issue involved is with regard to validity of the order dated 31/3/1992 by which, earlier order dated 25/1/1990 was cancelled w.e.f. 8/1/1985. By order dated 25/1/1990, petitioner was confirmed as Director of the Rajasthan Hindi Granth Academy w.e.f. 1/1/1984, on completion of period of two years from the date of his initial appointment with SBCWP NO.4641/06. 7 Academy. Question whether or not petitioner should be held entitled to receive retiral benefits in so far as services he rendered to the State Government in its department of higher education is what with which we are concerned and that can be adjudicated upon independently. The order issued by the Joint Director, Directorate of College Education for Rajasthan Jaipur on 28/11/1985 clearly states that services of the petitioner on deputation with Rajasthan Hindi Granth Academy came to an end on 8/1/1985 and thereafter petitioner was required to resume his duties with the said Directorate. He was warned that he failed to report to duty within 10 days, appropriate disciplinary action shall be taken against him. It is clearly evident that this order was based on earlier order dated 8/1/1985 by which, petitioner was removed from the post of Director. However, the order dated 8/1/1985 was itself recalled by subsequent order dated 2/1/1990 and because petitioner had filed a writ petition challenging the former order and since the interim order of stay was obtaining in his favour, no action was taken against him and he in this manner continued to discharge the duties of Director. What is subject matter of examination in the special appeal filed by the petitioner is that correctness of the order dated 31/3/1992 by which, order dated 25/1/1990 was cancelled w.e.f. 8/1/1985. So what SBCWP NO.4641/06. 8 would be seen in the special appeal is whether or not the order dated 31/3/1992 is legally valid or not. If that order is upheld, ultimate effect would be that order dated 25/1/1990 would stand cancelled w.e.f. 8/1/1985. However, conversely if the order is set-aside, the order dated 25/1/1990 would revive. In any case, petitioner continued to serve the Rajasthan Hindi Granth Academy atleast upto 8/1/1985 unhindred and without any objection by any competent authority. Respondents themselves have treated his appointment with the Academy atleast upto that date as one on deputation. Provisions of RSR in this regard are quite clear. Rule 18(a) of the RSR clearly provides that A Government servant's lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post. Rule 18(b) of RSR provides that A Government servant's lien on a post stands terminated on his acquiring the lien on a permanent post (whether under the Government or Central/other State Government) outside the cadre on which he he is borne. 8) It can be therefore assumed in either event that petitioner could not be left without any lien atleast upto 1/1/1984 when he completed period of 2 years on the post of Director with the Academy and on which date he was confirmed vide order dated SBCWP NO.4641/06. 9 25/1/1990. In other words, his continuation with the Academy on the post of Director atleast upto 1/1/1984 has to be treated as one on deputation as has been the stand of the respondents themselves. If the petitioner had served the respondent-State for a period from 13/7/1966 till 1/1/1984, he would have completed more than 17 years of service with them and on that basis, all his retiral dues including Pension, Gratuity, GPF, State Insurance and Leave Encashment etc. are liable to be computed. 9) In the result, writ petition is allowed. Respondents are directed to compute retiral dues of the petitioner in terms of the discussion made above and to pay to him all his retiral dues within a period of three months from the date copy of this order is produced before them. (MOHAMMAD RAFIQ), J. anil