BHASKAR GAJANAN KAJREKARversusADMINISTRATOR, DADRA AND NAGAR HAVEL! AND ORS.

A               BHASKAR GAJANAN KAJREKAR
                            v.
      ADMINISTRATOR, DADRA AND NAGAR HAVEL! AND ORS.

                              FEBRUARY 23, 1993

B            [KULDIP SINGH AND YOGESHWAR DAYAL, JJ.]

          O"vil Se!Vices :

          Central Civil Services (Pension) Rules, 1972 - Rule 13-l'ensiort-
C Retiree not given pension as he was not conjinned in any post even after 23
    years of service-On the availability of pemianent post-Entitlement to con-
    jinnation-i'ayment of pension to the Retiree treating him G~ a confimied
    employee-Directions issued.                                                    --\.

          The appellant retired in 1977 after putting in 23 years of service.But
D   he was not given pension on the ground that throughout his service he was
    working on officiating basis and was never appointed substantively to any
    or the posts held by him. The appellant challenged the denial or pension
    to him before the Central Administrative Tribunal. The Tribunal held that
    since the appellant retired from service without holding lien on any sub-
E   stantive post, he was not entitled to pension under Rule 13 of the Central
    Services (Pension) Rules, 1972. The application or the appellant was
    disposed of ex-parte by the Tribunal and his application for restoration
    and hearing was also rejected. Against these orders ofthe Tribunal appel-


F
    lant preferred the present appeals.

          The Respondents contested the appeals on the ground that the
    Departmental Promotion Committee did not recommend the appellant's
                                                                                     -
    confirmation since two departmental enquiries were initiated against him,
    resulting in deduction of Rs. 4,000 from his gratuity, by way of punishment.

          Allowing the appeals, this Court,
G
          HELD: 1. Admittedly the findings in the two enquiries were never
    communicated to the appellant during the period of his service. Those were
    served on him only after retirement. The question of his confirmation which
    was due in the year 1967 could not have been linked with the enquiries which
H   were initiated at a much later stage. The Departmental Promotion Commit-
                                         60
        BHASKAR GNANAN v. ADMINISTRATOR [KULDIP SINGH, J.]                  61

    tee should have considered the appeUaot for confirmation on the basis of A
    the record of the appellant as existed in the year 1967/1968. There is no
    material on record to show that the service record of the appellant prior to
    1970 was adverse in any manner. Even the Departmental Promotion Com-
    mittee found the confidential reports of the appellant for the last three years
    as good. On the availability of a permanent post of Chief of Police on Jone B
    14, 1967 the appellant was entitled to be confirmed against the said post. It
    was wholly arbitrary on the part of the respondents to have deferred the
    question of confirmation of the appellant on the ground that there were no
    Recruitment Rules. The appellant having served.the respondents for about
    thirteen years, on June 14, 1967 when the post of Chief of Police was made
    permanent and there being nothing adverse against him at that point of C
    time, he was entitled to be confirmed in the said post. In that view of the
    matter the appellant was a confirmed employee when he retired from service
    on July 31, 1977. [63D-G)

          2. The respondents are directed to treat the appellant as having been
    retired as a confirmed employee and fix his pension and other post-retiral    D
    benefits on that basis. The respondents are further directed to complete
    the pension case of the appellant within three months and pay him all the
    arrears of the pension within two months thereafter alongwith 12% interest
    on the said arrears. [63H; 64A)
                                                                                  E
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 72+725
    of 1992.

-        From the Judgment and Order dated 13.11.90 & 10.8.90 of the
    Central Administrative Tribunal, New Bombay in M.P. No. 855/90, & 0.A.
    No. 799 of 1989.                                                              F
          N.M. Ghatate, Anand Prasad and S.V. Deshpande for the Appellant.

          T.C. Sharma and Ms. A. Subhashini for the Respondents.

         The Judgment of the Court was delivered by                               G
          KULDIP SINGH, J. Special leave granted in both the matters.

         B.G. Kajrekar joined service as Chief of Police on August l, 1954 in
    Dadra a'ld Nagar Haveli. He worked in that capacity upto April 19, 1966.
    Thereafter he was sent on deputation to the Central Reserve Police, H
    62                    SUPREME COURT REPORTS                   [1993] 2 S.C.R.

A Neemuch (Madhya Pradesh). He caine back to his original post in Dadra
    and Nagar Haveli on November 17, 1967 and worked as Chief of Police
    upto April 6, 1971. He was transferred to Delhi Armed Police on April 7,
    1971 where he worked as Deputy Superintendent of Police till his retire-
    ment on July 31, 1977. He has thus, put in about twenty three years of
    seTV!ce.
B
          Kajrekar was not given pension on the ground that throughout his
   service he worked on officiating basis and was never appointed substan-
   tively to any of the posts held by him. Kajrekar challenged the action of
   the respondent.s, denying pension to him, before the Central Administrative
C Tribunal, Bombay. The Tribunal rejected his application on the ground
 . that he retired from service without holding lien on any substantive post
   and as such was not entitled to pension under Rule 13 of the Central Civil
   Services (Pension) Rules, 1972 (the Rules). The application of Kajrekar
   was disposed of ex-parte by the Tribunal and his prayer for restoration and
D hearing was also rejected. These appeals by way of special leave petitions
   are against the orders of the Central Administrative Tribunal.

           It is not disputed that the post of Chief of Police under Dadra and Nagar
    Haveli Administration was declared permanent with effect from June 14,
    1967. On that date the appellant had already put in about thirteen years of
E   service but his case for confirmation was not considered on the ground that
    there were no Recruitment Rules for the post in existence. The Recruitment
    Rules for the post of Chief of Police under the Administration of Dadra and
    Nagar Haveli came into force on January 19, 1980. The said Rules provided
    "by transfer on deputation" as the method of recruitment to the post of Chief
                                                                                       -
F   of Police. The Recruitment Rules have no relevance to the question of confir-
    mation of the appellant as he had retired from service on January 31, 1977
    much before the coming into force of the Recruitment Rules. It was incum-
    bent on the respondents to have considere.d the question of confirmation of
    the appellant before his retirement, specially when he was being retired after
    serving the respondents for twenty three years. It was wholly arbitrary on the
G   part of the respondents to have kept the appellant as an unconfirmed
    employee for a period of twenty three years on the ground that there were no
     Recruitment Rules for the post he was holding.

            The Union Territory of Dadra and Nagar Haveli in its counter filed
H    in this Court has stated that after the publication of the Recruitment Rules
           BHASKAR GAJANAN v. ADMINIS1RATOR [KULDIP SINGH, J.]                 63

        a Departmental Promotion Committee was convened on July 4, 1981 for A
        considering the question of confirmation of the appellant as Chief of Policy.
        The Departmental Promotion Committee did not recommend the appel-
        lant for confirmation on the ground that during the course of his service,
        two departmental enquiries were instituted against the appellant. The
        enquiries could not be completed before the appellant's retirement and the
        findings were made available thereafter. The proceedings of the Depart-
                                                                                      B
        mental Promotion Committee further show that as a result of the enquiries
        Rs. 4,000 was to be deducted from .the gratuity amount of the appellant as
        a measure of punishment. The Departmental Promotion Committee found
        that the confidential reports of the appellant for the last three years were
        good but the Committee declined to recommend confirmation because of C
        the two enquiries.

              It is not disputed that the findings in the two enquiries were never
        communicated to the appellant during the period of his service. Those were
        served on him only after retirement. The question of his confirmation which D
        was due in the year 1%7 could not have been linked with the enquiries
        which were initiated at a much later stage. The Departmental Promotion
        Committee should have considered the appellant for confirmation on the
        basis of the record of the appellant as existed in the year 1967/1968. There
        is no material before us to show that the service record of the appellant
        prior to 1970 was adverse in any manner rather the averments made by the E
--.,;   appellant in the rejoinder to the effect that there was nothing adverse
    '   against him on the record prior to 1971, have not been controverted. Even
        the Departmental Promotion Committee found the confidential reports of

-       the appellant for the last three years as good. We are of the view that on
        the availability of a permanent post of Chief of Police on June 14, 1967 the F
        appellant was entitled to be confirmed against the said post. It was wholly
        arbitrary for the respondents to have deferred the question of confirmation
        of the appellant on the ground that there were no Recruitment Rules. We,
        therefore, hold that the appellant having served the respondents for about
        thirteen years on June 14, 1967 when the post of Chief of Police was made
        permanent and there being nothing adverse against him at that point of G
        time, he was entitled to be confirmed in the said post. In that view of the
        matter the appellant was a confirmed employee whe.n he retired from
        service on July 31, 1977.

              We, therefore, direct the respondents to treat the appellant as having H
   64                   SUPREME COURT REPORTS                 [1993] 2 S.C.R.

A been retired as a confirmed employee and fix his pension and other
   post-retiral benefits on that basis. We further direct the respondents to
   complete the pension case of the appellant within three months from today
   and pay him all the arrears of the pension within two months thereafter
   alongwith 12% interest on the said arrears. We allow the appeals with costs
   which we quantify as Rs. 10,000.

    G.N.                                                    Appeals allowed.