IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4718/98 Kailash Chand Jain vs. RSRTC & Ors. Date of order : 20/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Suresh Kashyap for the petitioner. Shri Hemant Gupta, Addl. Govt. Counsel for the respondent. Shri R.D. Rastogi for the respondent. ****** Heard learned Counsel for the parties. This writ petition was filed by the petitioner way back in September, 1997 who retired from the services of the Rajasthan State Road Transport Corporation (for short- RSRTC) on 31.1.1997. Petitioner was appointed as Conductor on 7.4.1960 in the State Roadways Department, which was originally run by the Home Department of the State. Subsequently, RSRTC was constituted in the State with effect from 1.10.1964 under the Road Transport Corporation Act, 1950. The Government by notification dated 18.11.1964 placed the services of all employees of the erstwhile Roadways Department at the disposal of RSRTC. Petitioner was however declared surplus and was sent to the Medical & Health Department by order dated 11.9.1967. Petitioner challenged that order by filing the writ petition, which was allowed by judgement of this Court dated 23.3.1968 holding that the employees of industrial undertaking cannot be transferred to non- industrial undertaking and quashed the aforesaid order dated 11.9.1967. It was in this manner that the petitioner was finally absorbed by RSRTC by order dated 23.8.1973. Petitioner thus retired from the services of the RSRTC on 31.1.1997. RSRTC however granted him pension only for the period he served i.e. 1.9.1973 till the date of his retirement dated 31.1.1997 and the period of service rendered by him in the State Government from 7.4.1960 to 28.8.1973 was ignored for all purposes including for the purpose of grant of pension. Shri Suresh Kashyap, learned counsel for the petitioner has argued that the petitioner has served in the State Roadways previously which was one of the department of the State of Rajasthan and when the entire department was taken over by the RSRTC, the period of service rendered by the petitioner earlier could not be altogether ignored. Learned counsel relied on the Circular issued by the Governor of State dated 23.9.1988 and 19.8.1989 wherein it has been provided that in case 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 for one time payment, the pro rata pension for the services upto the date of absorption in such statutory body. Shri R.D. Rastogi, learned counsel appearing for the RSRTC however opposed the writ petition and submitted that no such lump sum amount as pro rata pension to share the burden of counting entire period as qualifying for pension has been forwarded by the State Government to the RSRTC, therefore, RSRTC can be held responsible for payment of pension only upto the period for which the petitioner served with them. Even though State of Rajasthan is a party respondent to the writ petition, but in spite of notice of the writ petition, it has chosen not to file any reply. The cases of this nature where employees of the State Government have been absorbed in the services of the Central / Autonomous Body / Statutory Body are regulated by the relevant service rules. The State Government in its Finance Department has issued the above referred to policy Circular. In the Circular of the Finance Department dated 23.9.1988 it is provided that where a State Government employee borne on pensionable establishment is allowed to be absorbed in a Central Autonomous body / Statutory body, the service rendered by him under the State Government shall be allowed to be counted towards pension under the Autonomous body / Statutory body and the same procedure will apply in the case of employees of the Central Autonomous body / Statutory body who are permanently absorbed under the State Government. In such an eventuality, the State Government will discharge its pension liability by paying him a lump sum as a one time payment, the pro-rata pension, gratuity for the services upto the date of absorption in such Autonomous body / Statutory body/State Government as the case may be. The lump sum amount of the pro rata pension will be determined with reference to the commutation table laid down in the Rajasthan Civil Services (Commutation of Pension) Rules, 1996 as amended from time to time. The subsequent Circular of the Finance Department dated 19.8.1989 also provide that the Governor has been pleased to order that the employees of a Central autonomous body / statutory body or State Government as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either to retain such benefits and in that event their past service will not qualify for pension under the Central autonomous body / Statutory body or the State Government as the case may be or who have the past service counted as qualifying service under the new organisation in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of these benefits till the date of deposit with the Central autonomous body/statutory body or the State Government, as the case may be, with simple interest of 6% per annum. The relevant part of the aforesaid Circular is reproduced hereunder: “The Governor has been pleased to order that below item (iv) of Finance Department Order of even number dated 23/9/1988, the following new items (v) and (vi) shall be added as follows, namely:- (v) The employees of a Central autonomous body / statutory body or State Government, as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either:- (a) to retain such benefits and in that event their past service will not qualify for pension under the Central autonomous body / Statutory body or the State Government, as the case may be; or (b) to have the past service counted as qualifying service for pension under the new organisation in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of these benefits till the date of deposit with the Central autonomous body/statutory body or the State Government, as the case may be, the rate of interest in such cases would be simple interest of 6% per annum. The right to count previous service as qualifying service shall be revive until the whole amount has been refunded. In other cases, where pro rata retirement benefits have already been sanctioned but have not yet become payable the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction, the option shall be exercised within a period of one year from the date of issue of these orders. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final. (vi) Where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in Finance Department Memorandum of even number dated 23/9/1988. In no case pension contribution / liability shall be accepted from the employee concerned.” Controversy in the present case however can be therefore resolved by directing the petitioner to refund the entire amount which he had received from the State Government at the time of his absorption with the RSRTC towards pro rata retirement benefits and other terminal benefits which he rendered with the State Government with six weeks. Upon petitioner's depositing the said amount, if any, received by him, the State Government shall authorise the payment of a lump sum as one time pro rata pension / service gratuity for the service he rendered with the State Government from 7.4.1960 upto the date of his absorption with the RSRTC i.e. 28.8.1973. The writ petition is accordingly allowed. The respondents are directed to revise the pension of the petitioner counting the entire period of service from the date of initial appointment i.e. 7.4.1960 till the date of his retirement i.e. 31.1.1997 and accordingly pay to him arrears of pension and other retiral dues as may be found due in accordance with law together with interest @ 6% per annum. Compliance of the judgement be made within a period of three months from the date copy of this judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/