PRADUMAN KUMAR JAINversusUNION OF INDIA THROUGH SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF SCIENCE AND TECHNOLOGY, NEW DEIHL AND ANR.

                     PRADUMAN KUMAR JAIN                                     A
                                    v.
        UNION OF INDIA THROUGH SECRETARY TO
              •
    THE GOVT. OF INDIA, DEPARTMENT OF SCIENCE AND
          TECHNOLOGY, NEW DEI.,Hl AND ANR.

                             JULY Il, 1994
                                                                             B

         [KULDIP SINGH AND YOGESHWAR DAYAL, JJ.]

       Service Law-Substantive appoilllment-Held, a person appointed in
the Central Government Service against a pernianent vacancy, completing his C
probation period successfully, crossing efficiency bar and promoted to higher
rank must be treated to be appointed in a substantive capacity and hence
entitled to pro rata pension for such period of service in Central Govem-
ment-CCS (Pension Rules 1972, Rules 13 and 49(2)(b ).

       The appellant joined Central Government service' on March 2, 1974.    D
No specific order confirming him in the service of the Central Government
was issued. He resigned and joined the National Thermal Power Corpora-
tion (NTPC) a Central Government Undertaking, on October 31, 1986
after being selected for appointment as a Senior Engineer. He approached
the Central Administrative Tribunal claiming pro rata pension for the        E
period of his service under the Central Government. The Tribunal rejected
his claim on the ground that he was not a substantive employee of the
Central Government. He appealed to the Supreme Court by Special Leave.

     Allowing the Appeal, this Court
                                                                             F
      HELD : 1. The question whether the Appellant is entitled to pro rata
pension in respect of the service for the period of twelve years and eight
months rendered by him under the Central Government depends on the
point wlu!ther he held the appointment in the service of the Indian
Meteorological Department in a substantive capacity. It is not disputed      G
that he was appointed as Assistant Meteorologist on October 13, 1977 by
way of direct recruitment through the Union Public Service Commission.
Direct recruitment, invariably is made against permanent vacancies. It is
not the case of the Respondents that the appellant was appointed against
a temporary post. The Appellant was therefore appointed as ASsistant
Meteorologist against a permanent vacancy. He was on probation_ for a        H
                                   305
    306                    SUPREME COURT REPORTS (1994) SUPP. l S.C.R.

A period of two years. His crossing the efficiency bar in October 1983 and
    further promotion to the higher post in September 1986 show that he
    successfully completed his probation period. In any case it is obvious that
    the work and conduct of the Appellant have throughout been satisfactory.
                                                         [307-H, 308-D; A·C]

B         2. A person appointed against a permanent vacancy, completing his
    probation period successfully, crossing the efficiency bar and even
    promoted to the higher rank, cannot be considered to be working in an
    officiating capacity. [308-E]

            Baleshwar Dass v. State of U.P., [1981] 1 SCR 449, relied on.
c
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4670 of
    1994.

            From the Judgment and Order dated 24.10.91 of the Central Ad-
D ministrative Tribunal, New Delhi in O.A. No. 770 of 1988.

         Vijay Hansaria, Adv. (NP) for M/s. Jain Hansaria & Co. for the
    Appeilant.

         V.C. Mahajan, S.N. Terdol and Ms. Kitty Kumaramangalam for the
E   Respondents.

            The Judgment of the Court was delivered by

            KULDIP SINGH, J. Special leave granted.

F       The appellant joined Central Government service on March 2, 1974.
  He was selected for appointment as Senior Engineer in the National
  Thermal Power Corporation (NTPC) , a Central Government Undertak-
  ing. He joined the NTPC on October 31, 1986. No specific order confirm-
  ing the appellant in the service of the Central Government was issued. The
  question before the Central Administrative Tribunal (the Tribunal) , New
G Delhi was whether the appellant was entitled to pro rata persion for the
  period of his service under the Central Government. The Tribunal
  answered the question in the negative and rejected the claim of the
  appellant on the short ground that the appellant was not a substantive
  employee of the Central Government. This appeal by way of special leave
H is against the judgment of the Tribunal dated October 24, 1991.
                 P.K. JAIN v. U.O.l [KULDIP SINGH, .I.]            307

       The appellant joined the Central Government service on March 2, A
1974 as. Technical Assistant in the Office of the Director General of
Supplies & Disposals and worked there till October 12, 1977. On October
13, 1977 he joined the Indian Meteorological Department (!MD) as Assis-
tant Meteorologist after being selected through the Union Public Service
Commission. He was placed on probation for a period of two years. He B
was permitted to cross the first efficiency bar on October 1, 1983. While
working with the !MD he was selected for appointment as Senior Engineer
in the NTPC. He was required to resign from the Central povernment
service for the purpose of joining the NTPC. The appellant delayed his
joining the NTPC because his case for confirmation as Assistant C
Meteorologist was under consideration of the Central Government. The
NTPC finally directed the appellant to join on or before Qctober 31, 1986.
Jn the meantime, the appellant was promoted as Meteorologist Grade-I in
the !MD with effect from September 22, 1986 and posted at Pune. How-
ever, in order to pursue his case for confirmation, he decided to forgo the
promotion. Despite repeated representations the !MD did not confirm the D
appellant and, as such, he submitted his resignation on October 21, 1986
to the !MD. He was relieved on October 30, 1986 by the !MD and he
joined the NTPC on October 31, 1986. On February 11, 1987 the appellant
again represented to the Central Government requesting for the grant of
pro rata pension as he had served the Government for twelve years and E ,
eight months. The Director General, !MD by his letter dated November
11, 1987 informed the appellant that since the seniority list of the cadre of
Assistant Meteorologist has been quashed by the Central Administrative
Tribunal, Madras Bench, his case "for confirmation will be considered
according to rules on the basis of revised seniority list when finalised." F
Since no decision was taken by the !MD for considerable time, the appel-
lant approached the Tribunal seeking direction that he should be deemed
to be a substantive employee of the Central Government within the mean-
ing of rule 13 of the CCS (Pension) Rules 1972 (the Rules) and, as such,
entitled to pension and other retiral benefits under the rules. As mentioned G
above, the Tribunal rejected the prayer.


     The question whether the appellant is entitled to prorata pension in
respect of the service for the period of twelve years and eight months
rendered by him under the Central Government depends on the point H
    308                   SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.

A whether he held the appointment in the service of the !MD in a substantive
    capacity. It is not disputed that the appellant was appointed as Assistant
    Meteorologist on October 13, 1977 by way of direct recruitment through
    the Union' Public Service Commission. Direct recruitment, invariably, is
    made against permanent vacancies. It is not the case of the respondents
B   that the appellanrwas appointed against a temporary post. The appellant
    was, therefore, appointed as Assistant Meteorologist against a permanent
    vacancy. He was on probation for a period of two years. His crossing the
    efficiency bar in October 1983 and further promotion to the higher post in
    September 1986 show that he successfully completed his probation period.
C   In any case it is obvious that the work and conduct of the appellant has
    throughout been satisfactory.

           The finding of the Tribunal, that the appellant was working in an
    officiating capacity, is solely based on the wording of the order dated
    March 29, 1984 allmving the appellant to cross the efficiency bar wherein
D   it was mentioned that the increment was being given to him in the officiat-
    ing post of Assistant Meteorologist. We fail to understand how a direct
    recruit in the post of Assistant Meteorologist, who joined service in 1977
    and completed his probation in 1979, could be working against an officiat-
    ing post. As mentioned above, direct recruitment is always made against
E   permanent vacancies. A person appointed against a permanent vacancy,
    completing his probation period successfully, crossing the efficiency· bar
    and even promoted to the higher rank, cannot be considered to be working
    in an officiating capacity.

         It would be useful to refer to para 4 of the Office Memorandum
F   dated January 31, 1986 which is in the following terms: -

             "Pensionary benefits:

             (i) Resignation from Government service with a view to secure
             employment in a Central public enterprises with proper permission
G            will not entail forfeiture of the service for the purpose of retire-
             ment/terminal benefits. In such cases, the Government Servant
             concerned shall be deemed to have retired from service from the
             date of such resignation and shall be eligible to receive all retire-
             ment/terminal benefits as admissible under the relevant rules ap-
H            plicable to him in his parent organisation."
                  P.K. JAIN v. U.O.l [KULDIP SINGH, J.]                  309

       It is not disputed that the appellant resigned from government ser-      A
vice with a view to secure employment in the Central public enterprise with
proper permission of the Central Government. The appellant is, therefore,
entitled to the benefit of the above quoted Office Memorandum. We may
also refer to para 4.1 of the Office Memorandum dated March 28, 1988
which· is reproduced hereunder: -                                               B

        "4.1 CONFIRMATION

         (a) General

        (i) Confirmation will be made only once in the service of an official   C
        which will be in the entry grade.

        (ii) Confirmation is delinked from the availability of permanent
        vacancy in the grade. In other words, an officer who has successfully
        completed the probation may be considered for confirmation."
                                                                                D
     The Memorandum dated March 28, 1988 came into force with effect
from April !, 1988.

      The Tribunal came to the conclusion that since the appellant had
resigned from the Central Government service before coming into force of
the Office Memorandum dated March 28, 1988 the same was not ap-                 E
plicable in his case.

       It is not disputed that the appellant had more than ten years of
service under the Central Government. His service would count as qualify-
ing service for pension if the provisions of rules 13 and 49 of the Rules are
                                                                                F
satisfied. The relevant provision of Rules 13 and 49 are as follows:-

        ''Rule 13: Commencement of qualifying service:

        Subject to the provisions of these rules, qualifying service of a
        government servant shall commence from the date he take charge          G
        of the post to which he is first appointed either substantively or in
        an officiating or temporary capacity.

           Provided that officiating or temporary service is followed
        without interruption by substantive appointment in the same or
        another service or post.                                       H
    310                  SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A               Rule 49 (2)(b ): The amount of pension arrived at on the basis
            of the above slabs will be related to the maximum qualifying service
            of 33 years. For Government servants who, at the time of retire-
            ment, have rendered qualifying service of ten years or more but
            less than 33 years, the amount of their pension will be such
            proportion of the maximum admissible pension as the qualifying
B
            service rendered by them bears to the maximum qualifying service
            of 33 years. A few illustrations are given in the Annexure to this
            Office Memorandum."

          This Court in Baleshwar Das & Ors. etc. v. State of U.P. & Ors. etc.,
C   [1981] 1 SCR 449, interpreted the term "holding of a post in a substantive
    capacity" in the following terms: -




D
            "A person is said to hold' a post in a substantive capacity when he
            holds it for an indefinite period, especially of long duration in
                                                                                   -
            contradistinction to a person who holds it for a definite or a
            temporate period or holds it on probation subject to confirmation.
            It the appointment is to a post and the capacity in which the
            appointment is made is of indefinite duration, if the Public Service
            Commission has been consulted and has approved, if the tests
E           prescribed have been taken and passed, if probation has been
            prescribed and has been approved, one in way well say that the post
            was held by the incumbent in a substantive capacity."

        Although the combined reading of the two Office Memorandums
  reproduced above support the appellant's contention that he stood con-
F
  firmed in the post of Assistant Meteorologist before he resigned the
  Central Government service but it is not necessary for us to go into the
  effect of the two Memorandums. Examining the facts and circumstances of
  this case in the light of the law laid down by this Court in Baleshwar Das's
  case, the .only conclusion which can be drawn is that the appellant was
G working as Assistant Meteorologist in a substantive capacity.

          We, therefore, hold that the appellant had been appointed in a
    substantive capacity against a permanent post of Assistant Meteorologist
    and is therefore entitled to prorata pension and other terminal benefits in
H   respect of the service rendered by him under the Central Government.
                  P.K.JAIN v. U.0.1 [KULDIP SINGH,J.]                    311

      We direct the respondents to compute and pay the pension and other        A
terminal benefits due to the appellant under the rules and all other relevant
orders/regulations, within three months of the receipt of this judgment. The
appellant shall be entitled to 12% interest on the arrears of payment to
which he becomes entitled as a result of this judgment.

      We allow the appeal in the above terms and set aside the judgment         B
of the Tribunal. The appellant shall be entitled to his costs which we
quantify as Rupees 10,000.

R.R.                                                        Appeal allowed.