IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 WP(C).No. 23734 of 2009(S) -------------------------- OA.521/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF INFORMATION TECHNOLOGY, MINISTRY OF COMMUNICATIONS & INFORMATION TECHNOLOGY, GOVERNMENT OF INDIA, NEW DELHI. 2. THE DIRECTOR GENERAL, STQC DIRECTORATE, DEPARTMENT OF INFORMATION TECHNOLOGY, ELECTRONICS NIKETAN, 6,CGO COMPLEX, NEW DELHI-110 003. 3. THE DIRECTOR, ELECTRONICS REGIONAL TEST LABORATORY, STQC DIRECTORATE, AKKULAM, SREEKARIYAM P.O., THIRUVANANTHAPURAM-695 017. BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI RESPONDENT(S): --------------- M.ACHUTHAN, S/O.T.SANKUNNY NAIR, SINDU NIVAS, TC 49/138, OPP.TENJITHUKAVU TEMPLE, AYYANTHOLE P.O., THRISSUR. (RETIRED SENIOR DIRECTOR, ERTL (S), THIRUVANANTHAPURAM. ADV. SRI.MOHAN PULIKKAL FOR R SMT.MANJU RAJAN FOR R SRI.K.S.ARUN BABU FOR R SMT.A.AMRUTHA VIDYADHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF O.A.NO. 521 OF 2007 FILED BEFORE THE HON'BLE CAT, ERNAKULAM. EXT.P2 TRUE COPY OF THE ORDER DATED 7.4.2006 IN WPC 1057 OF 2005 EXT.P3 TRUE COPY OF THE JUDGMENT DATED 30.5.2006 IN WA 895 OF 2006 EXT.P4 TRUE COPY OF THE RP NO. 557 OF 2006 IN WPC 2057 OF 2005 EXT.P5 TRUE COPY OF THE ORDER DATED 2.8.2006 IN RP 557 OF 2006 EXT.P6 TRUE COPY OF THE REPLY STATEMENT IN O.A.NO. 521 OF 2007 DATED 27.9.2007 EXT.P7 TRUE COPY OF THE REJOINDER IN O.A.O. 521 OF 2007 DATED 2.1.2008 EXT.P8 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 29.1.2008 IN O.A.NO. 521 OF 2007 IN RESPONSE TO EXT.P7 EXT.P9 TRUE COPY OF THE ORDER DATED 17.10.2008 IN OA NO. 521 OF 2007 OF THE HON'BLE CAT, ERNAKULAM. EXT.P10 TRUE COPY OF THE M.A.169 OF 2009 DATED 18.2.2009 EXT.P11 TRUE COPY OF THE M.A. 170 OF 2009 EXT.P12 TRUE COPY OF THE ORDER DATED 22.4.2009 ALONG WITH IT'S ADDENDEM DATED 1.5.2009 EXT.P13 TRUE COPY OF THE M.A. 432 OF 2009 IN O.A.NO. 521 OF 2007 OF CAT, ERNAKULAM BENCH. EXT.P14 TRUE COPY OF THE ORDER DATED 8.7.2009 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.R. C .N. RAMACHANDRAN NAIR, & BHABANI PRASAD RAY, JJ. -------------------------------------------- W.P.C. No. 23734 of 2009 -------------------------------------------- Dated this the 14th day of December, 2010 JUDGMENT Ramachandran Nair, J. This Writ Petition is filed by the Central Government challenging the order of the Central Administrative Tribunal directing the petitioners to give pensionary benefits to the respondent, similar to the pensionary benefits granted to other employees of the erstwhile Electronic Testing and Development Centre under the Kerala State Electronic Development Corporation absorbed along with the respondent. We have heard Addl. Solicitor General, Sri. T.P.M. Ibrahim Khan appearing for the petitioners and counsel appearing for the respondent. 2. Under a Memorandum of Understanding the Central Government took over the Testing and Development Centre run by the Kerala State Electronic Development Corporation as a going concern. The Memorandum of Understanding is produced as Annexure A2 to 2 the OA, clause 5 of which is extracted hereunder: 5. With a view to have continuity in the operation and activities of the Centre all the employees who are presently working in ETDC, Trivandrum and who opt for transfer under DOE will be favourably considered for selection through two Screening Committees constituted by DOE with participation and concurrence of State Govt. There will be one Screening Committee for the Director and another for the remaining staff. The Screening Committee will take into consideration qualifications, experience, annual confidential reports of the members who opt for transfer under DOE, at the time of screening and selection. The staff members who are not joining DOE will be absorbed by Keltron. Protection of the total emoluments drawn on the date of transfer, including basic pay, house rent allowance, dearness allowance, and other allowances, which are eligible for protection under the Central government Rules, will be ensured in respect of staff who are transferred to DOE. The Screening Committee will also recommend and appropriate grade/designation, scale of pay and the minimum pay in the scale which may be allowed to each member of staff who is transferred to ETDC under DOE (depending on the qualification and nature of duties being performed and the overall experience and in accordance with the personnel policy of DOE). Regarding benefit of service rendered under KSEDC or other public sector undertakings for purposes of leave and pensionary benefits, the same will be regulated under the normal rules applicable to State Government employees transferred to the Central Govt. 3 Pursuant to the above clause in the Memorandum of Understanding, all the 17 employees, except the respondent, were absorbed after screening them by the Screening Committee headed by the respondent as Director of the Centre . However, contrary to the above provision for screening and absorption of the respondent, who was the Director of the Centre, the Central Government notified the post of Director for direct recruitment, against which respondent also applied and in the selection respondent was selected and appointed as Director. In other words, after selection of the respondent also the unit which was previously run by Kerala State Electronic Development Corporation as it's Testing and Development Centre, continued as a unit of the Department of Electronics, Government of India. The respondent who had retired in 1995 applied for pensionary benefits from the Central Government which was declined against which OA was filed before the Tribunal. The Tribunal held that respondent was to be treated like all other employees absorbed and he can be given pension and other benefits treating his entire service from 1979 onwards with the same organisation taken over by the Central Government and presently run 4 as it's unit. It is against this order of the Tribunal that the Central Government has filed this Writ Petition contending that respondent was directly recruited as a Director and without 10 years' service, he cannot be given pension. 3. The only question to be considered is whether service of the respondent for the period prior to his absorption as Director through selection process carried out by the Central Government could be reckoned for the purpose of pension. Admittedly on taking over of the Centre by the Central Government respondent was allowed to continue as Director-in-charge and he chaired the Screening Committee which screened all the employees for their eligibility for absorption on transfer basis. However, since the respondent was unit-head, a separate Screening Committee in terms of clause (5) above had to be constituted for screening him to consider his absorption on transfer basis. This was not done by the Central Government and in our view the action of the Central Government in notifying the post for open selection itself could have been questioned by the respondent as it was in violation of clause 5 of the Memorandum of Understanding stated above. However, it has turned out to be that respondent was found to 5 be eligible to be appointed as Director and he was in fact appointed in 1989 and he continued until retirement in 1995. Since respondent was selected though against application submitted by him, the same should be treated as a screening in terms of clause 5 above, and he should be necessarily treated on par with other employees who were absorbed on transfer basis. It is specifically stated in the last part of clause 5 that leave and pensionary benefits to the absorbed employees will be regulated under the normal rules applicable to State Government or Public Sector Employees transferred to the Central Government. We are therefore of the view that the finding of the Tribunal is absolutely consistent with the Memorandum of Understanding which binds the Central Government, State Government, the State Government Corporation and it's employees including the respondent. 4. Addl. Solicitor General has brought to our notice that respondent has got pension and other benefits from his previous employer. However, counsel for the respondent submitted that besides getting GPF which is own money from the previous employer, he has not received any pension or other benefits. We do not think there is any need for us to go into the actual benefits, if any, received by the 6 respondent. However, we make it clear that respondent cannot claim same benefits from both the Central Government as well as State Government undertaking which he served. In other words, no double benefit can be claimed by the respondent. It is for the Kerala State Electronic Development Corporation to communicate to the Central Government the benefits granted to the respondent and by taking into account the same, and consistent with the Central Government rules referred to in clause 5 above, petitioners will grant pension and other benefits to the respondent without any delay. Since respondent has retired 15 years back, we direct the petitioners to give eligible benefits to the respondent including arrears of pension within three months from the date of receipt of a copy of this judgment. Writ Petition is dismissed with the above observation. (C.N.RAMACHANDRAN NAIR) Judge. (BHABANI PRASAD RAY) Judge. kk 7