ORDER
N.G. Nandi, J.
1. Invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India, the etitioners pray for direction to the respondents to grant retirement benefits to the petitioners .e. pro-rata pension, gratuity, leave encashment and C.G.H.S. (Medical) card for treatment of
self and wife in Government Hospitals at Delhi and New Delhi or cash payment in lieu thereof ith all other terminal benefits as allowed to the Government servants on retirement as per the 5th Pay Commission with interest @ 12% per annum.
2. It has been the say of the petitioners that the petitioners are eligible for grant of pro-rata pension with all other benefits based on length of qualifying service under the Government till the date of their absorption in public sector undertakings.
That petitioner no.1 joined, the Army Ordnance Corps (Personal No. 21636) on 20.6.1944; that he went on deputation to the Hindustan Steel Ltd.
Steel Authority of India Ltd. (Bhilai Steel Plant); that he continued on deputation from the Army Ordnance Corp till 25.8.1960 when his lien was terminated and he was permanently bsorbed in the Hindustan Steel Ltd./Steel Authority of India Ltd. (Bhilai Steel Ltd.); that the total service rendered by the petitioner with the Army was 16 years 2 months and 4 days. That petitioner No. 2 joined the Army Ordnance Corps (Personal No. 21236) on 14.2.1944 and thereafter ent on deputation to the National Small Industrial Corporation on 5.11.1959 and continued on deputation from the Army Ordnance Corp till 31.5.1964; that his lien was terminated and he was bsorbed in the National Small Industrial Corporation; that the total service of petitioner No. 2 with the Army is 20 years, 3 months and 18 days. That petitioner No. 3 joined the Army Ordnance Corp (personal no.18381) on 16.1.1945; thereafter went on deputation to the industan Steel Ltd./Steel Authority of India Ltd. (Bhilai Steel Plant) on 9.5.1958 and he continued on deputation from the Army Ordnance Corps till 11.7.1960 when his lien was terminated and he was absorbed in the Hindustan Steel Ltd./Steel Authority of India Ltd. (Bhilai Steel lant) on 11.7.1960. The total service of petitioner No. 3 with the Army is 15 years, 5 months and
26 days. That petitioner No. 4 joined the Army Ordnance Corp (Personal No. 21874) on 29.8.1944 and thereafter went on deputation to the National Small Industrial Corporation on 15.4.1959 and he continued on deputation from the Army Ordnance Corps till 1.11.1963 when his lien was terminated and he was absorbed in the National Small Industrial Corporation; that the total service of petitioner no.4 with the Army is 19 years, 2 months and 3 days. That petitioner No. 5 joined the E.M.E. Army base Workshop, Delhi Cantt (Personal No. 7123618) on 11.6.1949 and thereafter went on deputation to the National Small Industrial Corporation on 21.3.1963 and he continued on
deputation from the E.M.E. till 28.3.1965 and his lien was terminated and he was absorbed in the National Small Industrial Corporation. The total service of petitioner no.5 with the Army is 15 years, 9 months and 17 days.
That as per the Central Civil Services (Pension) Rules, 1972, there is no distinction between the permanent and temporary employees in application of Pension Rules; that the petitioners case is directly covered by the law declared by the Supreme Court in the case of T.S. hiruvengadam Vs. The Secretary to the Government of India in Civil Appeal No. 666 of 1993; that
it was not open to the respondent to deny the benefit to the petitioners as it would bring into existence arbitrary classification in respect of the Government employees absorbed in the public undertakings prior to June 16, 1967 and thereafter; that such classification is unwarranted under Articles 14 and 16 of the Constitution of India and as no nexus with the object sought to be achieved by the Government Memorandum.
3. Respondent by counter-affidavit contends that the petitioners are not entitled to the retirement benefits in view of the fact that the petitioners were quasi-permanent employees at the time of their absorption in various public sector undertakings; that in terms of the Govt. of India, Ministry of defense letter dated 14.2.1985, quasi permanent employees of the Central Government who are absorbed in public sector undertakings are not entitled to terminal benefits which are admissible to permanent Govt. employees.
4. Annexure P-1 is the copy of the judgment in Civil Appeal No. 666 of 1993 [arising out of SLP(C) No. 12010 of 1988) in the case of T.S. Thiruvengadam Vs. The Secretary to Govt. of India Ministry of Finance, Department of Expenditure, New Delhi & Others wherein the appellant was in the service of Central Government for a period of about 15 years and he was thereafter permanently absorbed in public sector undertaking from where he retired on April 1, 1984. The question which came up before the Supreme Court for consideration was whether the appellant on absorption in public sector undertaking was eligible for pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying service under the Government till the date of absorption.
5. Learned counsel for the respondent has invited my attention to the Central Civil Services (Pension) Rules, 1972. Rule 37 is as under :-
37. Pension on absorption in or under a corporation, company or body:-
(1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State or in or under a Body controlled or financed by the Central
Government or State Government, shall be deemed to have retired from the date of such absorption and subject to sub-rule (3) he shall be eligible to receive retirement benefits which he may have elected or deemed to have elected and from such date as may be determined in accordance with the orders of the Central Government applicable to him.
Explanation:- Date of absorption shall be-
(i) in case a Government employee joins a Corporation or Company or body on immediate absorption basis, the date on which he actually joins that Corporation or Company or body;
(ii) in case a Government employee initially joins a Corporation or Company or body on foreign service terms by retaining a lien under the Government, the date from which his unqualified resignation is accepted by the Government.
(2) The provisions of sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Government/Union Territory Administration or under the joint control of two or more State Governments/Union Territory Administrations.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro-rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation:- Body means (autonomous body or statutory body).
6. It my be seen from Rule 37 reproduced above that the Government servant who has been permitted to be absorbed in Central or State public sector undertaking in public interest will be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits in accordance with the orders of Government applicable to him.
7. In the case of T.S. Thiruvengadam Vs. The Secretary to Government of India (Supra), the retirement benefits of the appellant were regulated by memorandum dated November 10, 1960, issued by the Ministry of Finance (Department of Expenditure) New Delhi. The Government of India subsequently issued memorandum dated June 16, 1967 providing revised terms and conditions of absorption in Central Government undertaking but restricted the revised benefits only to those who were absorbed on or after June 16, 1967. It has been held that “retirement benefits envisaged under Rule 37 are to be determined in accordance with the Government orders but the plain language of the Rule does not permit any classification by granting retirement benefits when the Rules specifically provides that all the persons who fulfill the pre-conditions prescribed therein shall be deemed to have retired from Govt. service from the date of absorption and shall be eligible to receive retirement benefits then the Govt. while granting benefits cannot deny the same to some of them on the basis of arbitrary classification. All those persons who fulfill the conditions under Rule 37 are a class by themselves and no discrimination can be permitted within the said class. The Government action in restricting the benefits under the revised Memorandum dated June 16, 1967 only to those who are absorbed after that date goes contrary to the Rule and cannot be sustained.”
8. The only contention advanced by the respondent to baffle, the claim of the petitioners is that the petitioners were quasi-permanent employees of the Central Government who were absorbed in public sector undertakings and are not entitled to terminal benefits which are admissible to permanent employees.
9. In this regard, Annexure R-1 (Copy of Government of India, Ministry of defense UO No. 64024/233/EIB/731/D (Civ-II) dated 14th Feb. 1985) has been produced. It suggests that the claim of quasi-permanent employees of the defense Ministry absorbed in public sector undertakings with regard to the terminal benefits for the service rendered in the Ministry of defense has been ruled out.
10. The respondent has relied on the Central Civil Services (Pension) Rules, 1972, which provide:-
1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(d) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(e) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(f) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(g) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(h) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
GOVERNMENT OF INDIA’S DECISIONS:
(1) Grant pensionary benefits to temporary Government servants retiring on superannuation/invalidation on completion of twenty years, (now ten years) temporary service:-
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(5) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(6) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx(2) Grant of pensionary benefits to temporary/quasi-permanent Government servants:
2. Terminal benefits:- xxxxxxxxxxxxxxx
3. Death Benefits:- xxxxxxxxxxxxxxxxxxxx
4. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
5. The provisions of this Office memorandum shall apply to those temporary and quasipermanent Government servants who are/were in service on 1.1.1986.
6. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
7. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. Definitions:-
(1)(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(aa) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
11. Annexure P-2 is the Office memorandum dated 3rd January, 1995 which states that after careful examination of the judgment dated 17.2.1993 in Civil Appeal No. 666/93 (Shri T.S. Thiruvengadam Vs. Union of India), the President has now been pleased to decide that the benefit of O.M. dated 16.6.1967 may be extended to all Central Government employees who are
absorbed in central public sector undertakings prior to 16.6.1967 subject to certain conditions mentioned in Annexure P-2.
12. It is pertinent to note that Government of India’s decision- Rule (2)(5) reproduced above suggests that the provisions of the said office memorandum will apply to those emporary/quasi-permanent Government servants who are/were in service on 1.1.1986 meaning thereby the distinction between regular employee and temporary/quasi permanent employee has been
done away w.e.f. 1.1.1986 pursuant to the recommendations of the IVth Pay Commission, which is effective from 1.1.1996 in view of Rule 2(1)(2) and Rule 2(5). All the petitioners retired from the respondents, service from 11.7.1960 to 28.3.1965.
13. It cannot be disputed that the recommendations of the IVth Central Pay Commission cannot be retrospective in nature so as to extend the benefits thereunder to the employees who were temporary/quasi-permanent and have retired prior to 1.1.1986. As pointed out above, all the petitioners admittedly retired prior to 1.1.1986.
14. Above being the position the principle laid down in this case of T.S. Thiruvengadam Vs. Secretary to Govt. of India, Ministry of Finance, Dept. of Expenditure, New Delhi & Others (Supra) will not be of any assistance to the petitioners and, therefore, it cannot be said that there is any classification or discrimination violative of Rule 37 as far as the petitioners
are concerned.
15. In the result, the writ petition fails. No order as to costs.