M.C. DHINGRAversusUNION OF INDIA AND ORS.

A                                 M.C. DHINGRA
                                        v.
                             UNION OF INDIA AND ORS.

                                FEBRUARY 5, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Se1vice Law:

            Pension-Temporary employees rendering temporary service under the
C Central/State Governments prior to joining State/Central Govern-
    ment-Proportionate pensionary liability-Sharing of on reciprocal
    basis-G-ovemment of India-Department of Personnel & Administrative
    Refonns-Letter No. 3 (20) Pen. (A)-79 dated 31.3.1982-Cut-off date
    mentioned in para 4 thereof-HELD: Arbitrary and violative ofArt. 14--Con-
    stitution of India, Art.· 14.
D
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3371 of
    1996.

          From the Judgment and Order dated 19.10.94 of the Central Ad-
    ministrative Tribunal, New Delhi in O.A. No. 2335 of 1989
E
            M.C. Dhingra for the Appellant.

            R.R. Mishra and Ms. Indira Sawhney for the Union of India.

          Ms. Rachna Gupta M.K. Roy, Sudhanshu, R.B. Misra and K. Mishra
F   for the Respondents.

            The following Order of the Court was delivered :

            Leave granted.

G         We have heard counsel for the parties. The appellant while working
    in the State Service from January 31, 1948, was selected as a Railway
    Magistrate and had taken charge on Feburary 1, 1973. The Government of
    India had issued a Circular on March 31, 1982 which envisaged with the
    concurrence of the State Governments, the following :

H             "1. The Government of India had been considering in consultation
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                         M.C DHINGRAv. U.0.1.                             133

         with the State Governments, the question of sharing on a reciprocal     A
         basis, the proportionate pensionary liability in respect of those
         temporary employees who had rendered temporary service under
         the Central Government/State Governments prior to securing
         posts under the various State Governments/Central Government
         on their own volition in response to advertisement or circulars,
                                                                                 B
         including those by the State/Union Public Service Commissions
         and who are eventually confirmed in their new posts. It has since
         been decided in consultation with the State Governments that the
         proportionate pensionary liability in respect of temporary service
         rendered under the Central Governfuent and State Governments
         to the extent under the Rules of the respective Government, will        C
         be shared by the Governments concerned, on a service share basis,
         so that the Government servants are allowed the benefit of count-
         ing their qualifying service both under the Central Government
         and the State Governments for grant of pension by the Government
         from where they eventually retire. The gratuity, if any, received by    D
         the Government employee for temporary service under the Central
         or State Governments will, however, have to be refunded by him
         to the Government concerned.

         2. The Government servants claiming the benefit of combined
         service in terms·of above decision are likely to fall into one of the   E
         following categories :

         (1) Those who having been retrenched from the service of the
             Central/State Governments secured on their own employment
             under State/Central Governments either with or without in-
             terruption between the date of retrenchment and the date of         F
             new appointment;

         (2) Those who while holdi...,g temporary post under Central/State
             Government apply for posts under State/Central Government
             through proper channel with proper permission of the Ad-            G
I
             ministrative Authority concerned;

L        (3) Those who while holding temporary post under Central/State
             Governments apply for posts under State/Central Govern-
             ments direct without the permission of the Administrative
             Authority concerned and resign their previous post to join          H
    134                  SUPREME COURT REPORTS                  [1996) 2 S.C.R.

A                 the new appointments under State/Central Governments.

                The benefit may be allowed to the Government servants in
            categories (1) and (2) above. Where an employee in category (2)
            is required for administrative reasons, for satisfying a technical
            requirement, to tender resignation on the temporary post held by
B           him before joining the new appointment, a certificate to the effect
            that such resignation has been tendered for administrative reasons
            and/or to satisfy a technical requirement to join, with pro-permis-
            sion, the new post, may be issued by the authority accepting the
            resignation·. A record of this certificate may also be made in his
c           service book under proper attestation to enable him to get this
            benefit at the time of retirement. Government servant in category
            (3) will obviously, not entitled to count their previous service for
            pension.

            3. The above arrangement will not apply to the employees of the
D           Governments of Jammu and Kashmir and Nagaland.

            4. These orders come into force with effect from the date of issue
            and cases of all such Government servants retiring on this date
            and thereafter will be regulated accordingly.

E           (G.I. Dept. of Per. & AR. Letter No. 3 (20) Pen. (A)/79 dated
            31st March, 1982 addressed to all State Governments except
            Jammu and Kashmir & Nagaland)

            Note : Sharing of pension liability between Central and State
            Governments has since been dispensed with effect from _1.4.i987."
F
        When the appellant had .asked for proportionate pension computing
  the previous service, it was denied to him. Consequently, he filed O.A. No.
  2335/89 in the Central Administrative Tribunal, New Delhi. By order dated
  19.10.1994, it was dismissed on the ground of delay. Thus, this appeal by
G special leave.
                                                                                   'I
          It is seen that though the appellant had retired on February 1, 1973,
    since the question of tagging the previous service rendered in the State
    Government on temporary basis and the similar cases are pending, the
                                                                                   J
    Government had taken a decision on March 31, 1982 to tag the previous
H   service for computation of the pension. Learned counsel appearing for the
                              M.C. DHINGRA v. U.0.1.                           135

     respondents contended that clause 4 of the abovesaid Circular is one of A
     the conditions which prescribes that it would be applicable to the Govern-
     ment servants who retired from that date, namely, March 31, 1982. Since
     the appellant had retired on February 1, 1973, he is not eligible. We find
     no force in the contention. All the persons who rendered temporary service
     prior to their joining the Government of India Service have been given th~
                                                                                       B
     benefit of fixation of the pension payable by tagging the temporary service.
     The cut off date is arbitrary violating Article 14 of the· Constitution of India.
     Having grouped all the similar circumstanced employees, fixing the cut off
     date and giving benefit to those who retired thereafter is obviously ar-
     bitrary. In similar circumstances, following the ratio in D.S. Nakara & Ors.


--   v. Union of India, [1983] 1 SCC 305, this Court held in the case of R.L.
     M01wah v. Union of India & Ors., [1987] 3 SCR 928 that such a restriction
     is arbitrary violating Article 14. On the facts and circumstances, we find
     that the restriction imposed in clause 4 of the Circular is violative of Article
                                                                                     c

     14. It is, therefore, unconstitutional. However, the appellant will be entitled
     to the pro-rata pension from March 1982.
                                                                                     D
           The appeal is accordingly allowed. No costs. The respondents are
     directed to work out and release the pension of the appellant within a
     period of six months from the date of the receipt of this order.

     G.N.                                                         Appeal allowed.




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