Gaj Singh Mehta @APPELLANT@Hash State of Rajasthan & Ors.

The petitioner has preferred this writ petition praying the following reliefs :-

“It is, therefore, respectfully prayed that this petition for writ in the nature of mandamus may kindly be allowed and by any other appropriate writ,

order or direction:-

The Propersnate basic pension from 5.1.1995 to 31.12.1995. (since the petitioner got the advantage of DA/Medical R/E in RSMM during this

period) be granted forthwith.

The Propersnate pension will benefits, including medical, etc as per rules from 1.1.1996 i.e. after his superannuation from RSMML.

the Gratuity for 11 years service with interest @ 24% as per rules applicable as on 5.1.1975. Average pay has to be ascertained from RSHML.

The respondents may also kindly be directed to release all the benefits to which he is legally entitled with interest @24% per annum and in view of

delay caused by the respondents in not releasing the said benefits and so also not deciding the claim for partly long time the petitioner may further be

awarded penal interest.â€​

The petitioner was initially appointed as Junior Geologist in the Mines and Geology Department, Government of Rajasthan on 27.11.1963. The

petitioner was sent on deputation by the State Government to Rajasthan State Industrial & Mineral Development Corporation wherein, he discharged

his duties from 27.10.1969 to 29.10.1972. The petitioner was thereafter again sent on deputation to Bikaner Gypsum Ltd. (which later on came to be

named as Rajasthan State Mines and Minerals Ltd. [RSMML] vide order dated 11.7.1973. The petitioner while discharging his duties in RSMML was

offered appointment to the post of Deputy Controller of Stores & Purchase vide offer letter dated 10.12.1974 with the stipulation that the petitioner

was required to tender his resignation in the parent department. The petitioner submitted an application on 14.12.1974 seeking permission from his

parent department to join in RSMML in public interest. The permission was sought clearly mentioning that he is seeking technical resignation in public

interest. The permission was granted vide communication dated 4.1.1975 and the petitioner was permitted to resign and join at RSMML. Formal

appointment order at RSMML was given on 29.3.1975. The petitioner got superannuated after discharging his duties at RSMML from 5.1.1975 to

31.12.1995 and at the time of superannuation, the petitioner was holding the post of Group General Manager in substantive capacity. The total service

rendered by the petitioner to the Government of Rajasthan including its undertakings was for a period of about 31 years, which included the past

service of 11 years, 1 month & 9 days which he rendered in the Mines and Geology Department. The deputation period was also included. The

petitioner sought 11 years of benefits arising out of proportionate service rendered by him in the State Government but upon his claim being submitted,

the respondents informed the petitioner that a decision had been taken by the State vide letter dated 20.11.2009 whereby, the claim of the petitioner

was declined. On receiving such information, the petitioner filed a writ petition before this court being S.B. Civil Writ Petition No.3772/2012 which

was disposed of by this Court vide order dated 13.5.2015 giving liberty to the petitioner to ventilate his grievances before the respondent department.

The respondent department again declined the relief to the petitioner vide order dated 31.8.2015.Â

3.1 Counsel for the petitioner states that on a bare reading of order dated 20.11.2009 whereby, relief was initially declined by the respondents, they

have relied upon Decision No.5(1) of Rule 158 of the Rajasthan Service Rules, 1951 (for short, ‘RSR’) whereas they ought to have relied upon

Decision No.5(2) of Rule 158 of the RSR, which are parts of the decision made by the State. Decision No.5(1) of Rule 158 of the RSR has been

quoted in the impugned order dated 31.8.2015. He states that Decision No.5(1) of Rule 158 of the RSR was not applicable and in fact, the

respondents were required to apply Decision No.5(2) of Rule 158 of the RSR as it entitles the petitioner to be considered for proportionate pension for

11 years, which he rendered in State service.

3.2 Counsel for the petitioner has also argued that Decision No.5(2) of Rule 158 of the RSR makes it clear that if a person renders 5 years or more in

Government department and his services are subsequently transferred/appointed to autonomous bodies/public sector corporations, then such

transfer/appointment are to be treated in public interest and he may be allowed to claim retiral benefits.

3.3 Counsel for the petitioner has relied upon the judgment passed by the Division Bench of Delhi High Court in W.P. © No.742/2000 (Union of

India & Ors. vs. Pramod Kumar Pandey) decided on 29.9.2010, the operative portion whereof reads as follows :-

“19. Taking all these facts into consideration, we have no hesitation in holding that in the present case, once the resignation of the respondent was

accepted and he was allowed to work in RITES by the petitioners, the question of forfeiting his earlier service in the Indian Railways does not arise as

the government itself has liberalized joining of an employee in the Government in a PSU even if he joins such service of his own volition and even

though such services may not be in the public interest so as to protect his interest for pro rata pension for his past services subject to the condition that

he had to his credit qualified service i.e. service of more than 10 years which in this case the respondent had before joining RITES. “

3.4 Counsel for the petitioner has also drawn attention of this Court to the official notings made by the respondents and particularly made by the

concerned Finance Department (Rules) which dis-entitles the benefits to the petitioner in terms of Rule 208 of the RSR. He submits that Rule 208(a)

is not applicable in the present case.

Counsel for the respondents have vehemently refuted the claim of the petitioner on the ground that the acceptance of resignation was a simple

acceptance and this would sever relationship of the past service with the new service as being interpreted by the respondents. Counsel for the

respondents has also shown that Decision No.5(1) of Rule 158 of the RSR is directly applicable in the case of the petitioner as Decision No.5(2) of

Rule 158 of the RSR only speaks about transfer and does not speak about appointment. Counsel for the respondents has also stated that the claim of

the petitioner was belated and at such belated stage, when proper consideration has already been made, no interference is called for.

5.1 Decision No.5(1) of Rule 158 of the RSR reads as follows:-

“5. Attention is invited to Finance Department order dated 23-7-1968 (Decision No. 4) above lay down the terms for transfer of the services of

Government servants to Autonomous bodies/Public sector corporation. A question has been raised as to what treatment would be accorded to

Government servants who, on their own accord applied for direct recruitment and have already been appointed, went initially on deputation by their

own choice and were subsequently given regular appointment or may be appointed in future by direct recruitment or transfer of services in Public

Sector Undertakings/Autonomous bodies The matter has been considered and it is clarified that the provision of the aforesaid order do not apply to

such Government servants.â€​

5.2 Decision No.5(2) of Rule 158 of the RSR reads as follows:-

However, with a view to cover all such cases of transfer or appointments direct recruitment in the past and also cases which may arise hereafter,

the Governor has been pleased to order that in the case of permanent or temporary Government servants whose appointments under Government

were made in accordance with provisions of relevant Service Rules regarding recruitment, promotion etc. promulgated under proviso to Article 309 of

the Constitution of India, or on the recommendations of the Rajasthan Public Service Commission or Departmental Selection Committee and who have

completed not less than 5 years continuous services under Government at the time of transfer of their services to autonomous bodies/Public sector

corporations, the transfer of their services may be treated in public interest and retirement benefits, subject to provisions contained in paragraph 3 and

4 below may be allowed to such Government servants.â€​

 5.3 Rule 208 of the RSR reads as follows:-

“208. Resignation, dismissal or removal for misconduct etc. (a) Resignation of the public service or dismissal or removal from it for misconduct,

insolvency, inefficiency not due to age or failure to pass a prescribed examination entails forfeiture of past service.

(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts

in full or in part, is not a resignation of public service.

In case where an interruption in service is inevitable due to the two appointments being at different stations, such interruptions, not exceeding the

joining time permissible under the rules on transfer, shall be covered by grant of leave of any kind due to the Government servant on the date relief or

by formal condonation under Rule 212 to the extent to which the period is not covered by the leave due to the Government servant.

6.1 Upon hearing the learned counsel for the parties and after perusing the record, this Court finds that on a bare reading of Decision No.5(2) of Rule

158 of the RSR, it is clear that a person who is seeking transfer/appointment by direct recruitment in the past and who has completed not less than 5

years of continuous service with Government at the time of such transfer/appointment to the autonomous bodies/public sector corporations, the

transfer of their services may be treated in public interest and retirement benefits have to be given. This Court further finds on a bare reading of Rule

208 that it is not applicable to the present case.

6.2 This Court further finds that the Division Bench of Delhi High Court has rightly held that the resignation of the concerned person while he being in

Government service and thereafter working in the Corporation, would not allow the Government to forfeit the earlier services.

 6.3 This Court has also gone through the application Annex.4 which reads as under :-

“I have been offered the post of Deputy Controller of Stores & Purchase in Bikaner Gypsum Limited, (A Govt. of Rajasthan Undertaking). A

copy of the offer is enclosed herewith for ready reference. My resignation may kindly be accepted in public interest and I may be allowed to join the

company permanently with immediate effect.â€​

On a bare reading of the application, it is clear that the petitioner has given resignation only in public interest and the respondents have only accepted it

as it is vide Annex.5 dated 4.1.1975. This clearly reflects that the State wanted to facilitate such shift of the petitioner.

6.4 This Court also finds that the body of RSMML was indeed a Government undertaking and, therefore, shifting of the petitioner was an inner

mechanism of the State of Rajasthan which ought to have been governed by Decision 5(2) of Rule 158 which entitles such transfer/appointment by

direct recruitment to the autonomous bodies/public sector corporations with the pensionary benefits.

In light of the aforesaid observations, this writ petition is allowed. The impugned orders are quashed and the respondents are directed to give

proportionate basic pension to the petitioner from 5.1.1975 to 31.12.1975. The other consequential benefits shall also be paid to the petitioner.