JUDGMENT
S.N. Jha, C.J.
1. By this writ petition the petitioner who is a retired District & Sessions Judge of the Rajasthan Higher Judicial Service seeks quashing of the orders dated 3.8.2002 and 16.1.2003 refusing his request to count his past service under the Reserve Bank of India (for short ‘the RBI’) for the purpose of pensionary benefits.
2. Facts of the case are brief. The petitioner applied for and was selected for appointment to the Rajasthan Judicial Service being successful at the Competitive Examination conducted by the Rajasthan Public Service Commission. Pursuant to his appointment he joined the service on 29.8.1974. Earlier he was in service under the RBI on a clerical post from 16.7.1968 to 28.8.1974. While serving as District & Sessions Judge, the petitioner came to know that the past service of one Shri Radhey Shyam Gupta, a member of Rajasthan Higher Judicial Service rendered under the Employees State Insurance Corporation (for short ‘the ESI Corporation’) was counted for the purpose of pensionary benefits by the Government of Rajasthan vide letter dated 16.5.1994. On 18.9.1997 he made representation to count his past service rendered under the RBI. On 30.6.2002 the petitioner retired from service on superannuation. On 3.8.2002 his request to count the past period was turned down by the State Government. The decision was communicated by the High Court on 19.2.2003. Copies of the letters dated 3.8 2002 and 19.2.2003 have been enclosed as Annexures 8 and 11 to the writ petition.
3. The question for consideration is whether the petitioner’s past service rendered under the RBI from 16.7.1968 to 28.8.1974 can be counted for the purpose of pensionary benefits.
4. Sub-rule (2) of Rule 12 of the Rajasthan Civil Services Pension Rules (for short ‘the Pension Rules’) provides that ‘Subject to the provisions of these rules, the qualifying service of a Government servant shall commence from the date he takes over charge of the post to which he is first appointed, either substantively or in an officiating or temporary capacity”. Shri Ashok Mishra appearing for the petitioner submitted that in terms of Sub-rule (3) of Rule 13 read with Section III of Appendix IX of the Pension Rules, the petitioner is entitled to count the service rendered under the RBI. He also referred to Sub-rule (2) of Rule 25 of the Pension Rules.
Sub-rule (3) of Rule 13 reads as under:
(3) In the case of a Government servant belonging to Central Government or any other State Government with whom the Rajasthan Government has entered into reciprocal arrangements, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the Central Government or that State Government in substantive, officiating or temporary capacity, shall qualify :
Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.
5. On a plain reading, it is evident that the employee of Central Government or any other State Government – with which the Rajasthan Government has entered into reciprocal arrangements – permanently transferred to a service or post to which these rules apply, can claim the benefit of the (past) continuous service rendered under the Central Government or the State Government. The proviso makes it clear that this sub-rule shall apply to only such Government servant who is appointed otherwise than by deputation. The petitioner was neither transferred to the Rajasthan Judicial Service nor joined the Rajasthan Judicial Service on deputation and, therefore, Rule 13 can have no application.
6. Before referring to Section III of Appendix IX we may notice Rule 25 which was also referred to in course of hearing as mentioned above. Rule 25 reads as under:
Forfeiture of service on resignation
(1) Resignation from a service or a post, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
7. On a reading of the above rule, it would appear that the resignation from service or a post results in forfeiture of the past service. This is the general rule. However, the resignation may not result in such forfeiture if it has been submitted to take up, with prior permission, another appointment whether temporary or permanent, under the Government where service qualifies. Case of the petitioner is that he had sought prior permission of the competent authority of the RBI before appearing at the competitive examination for appointment to the Rajasthan Judicial Service and, therefore, in terms of Sub-rule (2) of Rule 25, he is entitled to the benefit of past service notwithstanding that he had resigned from the RBI, We are of the view that Rule 25 applies to past service under the Government which means the Government of Rajasthan, and it does not include any other Government including Central Government or Central Autonomous/Statutory Organisations.
8. It may not be out of place to mention here that permission referred to by the counsel is sought, and granted by the employer, almost as a matter of course. The conditions of service invariably provide that before seeking employment elsewhere, permission of the competent authority be obtained. In fact, sometimes application is routed through the present employer.
9. Now coming to Section III of Appendix IX, which is the sheet-anchor of the petitioner’s claim, it may be mentioned that the instructions as contained therein were issued in the wake of demand of the employees of the State Government who joined the Central Autonomous Bodies/Statutory Bodies and vice-versa. Initially, employees of the Central Autonomous Bodies/Statutory Bodies were generally not entitled to the pensionary benefits and they were mainly entitled to Contributory Provident Fund benefits. Over the years, a large number of Central Autonomous Bodies/Statutory Bodies adopted the same pensionary scheme for their employees as was available to the Central Government and State Government employees. It appears that the Government of Rajasthan had entered into agreement for reciprocal arrangement with the Central government to count the past service for the purpose of pension of employees of the State Government seeking absorption in Autonomous Bodies/Statutory Bodies under the Central Government and vice-versa. The Central Government conveyed its decision that such cases may be decided in accordance with the principles laid down in the Department of Personnel & Administrative Reforms O.M. No. 28(10)/84 – Pension Unit dated 29.8.1984. Similar order regarding counting of service of the State Government employees in the event of their absorption in the Central Autonomous Bodies/Statutory Bodies and vice-versa was to be issued by the State Government.
10. In pursuance of the said order of the Central Government dated 29.8.1984, the State Government considered the matter and took certain decisions which are contained in Section III of Appendix IX of the Pension Rules. Section III initially comprised of four paragraphs as under:
(i) Where a State Government employee borne on pensionable establishment is allowed to be absorbed in a Central Autonomous body/Statutory body, the service rendered by him under the State Government shall be allowed to be counted towards pension under the Autonomous body/Statutory body. The same procedure will apply in the case of employees of the Central Autonomous body/Statutory body who are permanently absorbed under the State Government.
(ii) The State Government/Central Autonomous Body/Statutory body will discharge its pension liability by paying lump sum as a one-time payment, the pro rata pension/service gratuity/Death- cum-retirement gratuity for the service upto the date of absorption in the Autonomous body/Statutory body/State Government, as the case may be. The lump sum amount of the pro rata pension will be determined with reference to the commutation table laid down in the Rajasthan Civil Services (Commutation of Pension) Rules, 1996, as amended from time to time.
(iii) In the case of the State Government servants absorbed in a Central Autonomous body/Statutory body the authority in favour of the concerned Head of the Department for payment of lump sum amount to the concerned body shall be issued by the Director, Pension Department, Rajasthan, Jaipur.
(iv) The Service rendered by an employee in a Central Autonomous body/Statutory body, where pension scheme is in operation, prior to joining the State Government shall be counted towards pension on receipt of lump sum amount as envisaged above.
The above order, being under Order No. 1(28) FD (Gr-2)/85 dated 23.9.1988, however clarified that –
This order shall apply to the employees of the State Government moving to the Central Autonomous body/Statutory body and vice-versa who were in the service of the State Government/Central Autonomous body/Statutory body on 7.2.1986. Irrespective of the date of their absorption. This order shall also be applicable to the employees moving after 7.2.1986.
11. On 19.8.1989, Paragraph Nos. (v) and (vi) were inserted vide Order No. F-K28) FD (Gr-2)/85 dated 19.8.1989 in Section III of Appendix IX which may also be quoted as under:
(v) The employees of a Central autonomous body/statutory body or State Government, as the case may be, who have already been sanctioned or have received pro rata retirement benefits or other terminal benefits for their past service will have the option either: –
(a) to retain such benefits and in that event their past service will not qualify for pension under the Central autonomous body/Statutory body or the State Government, as the case may be; or
(b) to have the past service counted as qualifying service for pension under the new organization in which case the pro rata retirement or other terminal benefits, if already received by them, will have to be deposited alongwith interest thereon from the date of receipt of these benefits till the date of deposit with the Central autonomous body/statutory body or the State Government, as the case may be, the rate of interest in such cases would be simple interest of 6% per annum. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In other cases, where pro rata retirement benefits have already been sanctioned but have not yet become payable the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction, the option shall be exercised within a period of one year from the date of issue of these orders. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefits already received by them. The option once exercised shall be final.
(v) where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in Finance Department Memorandum of even number dated 23.9.1988. In no case pension contribution/liability shall be accepted from the employee concerned.
12. On a plain reading of the above instructions, it is manifest that they were issued to cover cases of absorption either in the Central Government or Central Autonomous Bodies or Statutory Bodies under the Central Government for the State Government or vice-versa. The benefit of decisions was to apply only to cases of absorption. Persons had moved from State Government to Central Government or Autonomous Bodies/Statutory Bodies under the Central Government and vice-versa where they were absorbed in course of time. It was only for them that the order was issued so that the past service rendered by them under the Autonomous Bodies/Statutory Bodies under the Central Government or the State Government, as the case may be, could be counted in the interest of justice.
13. The petitioner was not ‘transferred’ from the RBI to the Rajasthan Judicial Service so as to attract Rule 13(3) of the Pension Rules. Nor did he otherwise ‘move’ to the Rajasthan Judicial Service, nor he was ‘absorbed’ In that service. The admitted case is that the petitioner was selected to the Rajasthan Judicial Service on the basis of competitive examination and being a direct recruit, recruited on the basis of competitive examination, he cannot claim benefit of past service rendered under the RBI, in the absence of any rule.
14. It was submitted that the RBI is a Statutory Body fully controlled by the Central Government and that there was no break in service; on 28.8.1974 he was relieved from the post under the RBI and he joined Rajasthan Judicial Service on the very next day. The submissions have been noticed only to the summarily rejected. We do not wish to go into the question as to the status of the RBI vis-a-vis the Central Government, even if we accept that it is an organization under the control of the Central Government. We do not know if there was any reciprocal arrangement with the RBI about which there is no evidence. In any view, for the reasons stated above, the petitioner can not claim benefit of past service. As per Rule 12(2) of the Pension Rules, the qualifying service commences from the date of his joining “subject to the provisions of these rules”. In absence of any express rule enabling him to count the past service, claim of the petitioner has no legal basis.
15. It is relevant to mention that in its reply the RBI has stated that the Pension Scheme was introduced in the Reserve Bank in November 1990 with effect from 1.1.1986. The petitioner had resigned from the Bank’s Service on 28.8.1974 when the Contributory Provident Fund (CPF) Scheme was in vogue. The petitioner was subscriber to that scheme and he was paid Rs. 4,556.75/- as the terminal benefit.
16. Counsel for the petitioner placed heavy reliance on the cases of said R.S. Gupta and one Udai Singh Udawat. While in the case of R.S. Gupta, the State Government issued favourable order to count his past service rendered under the ESI Corporation, Udai Singh Udawat was allowed such relief on judicial side by this Court vide decision reported in 2005 (3) WLC (Raj.) 636.
17. In the reply of the State Government it has been stated that R.S. Gupta was employed as Lower Division/Upper Division Clerk under the ESI Corporation from 1.4.1960 to 18.11.1974. In the light of correspondence between Corporation, the High Court and State Government, the Deputy Regional Director, ESI Corporation sanctioned pro rata pensionary benefits amounting to Rs. 9,785/- to the Government of Rajasthan alongwith cheque for the said amount in favour of Director, Pension Department, Rajasthan, Jaipur and accordingly the Law & Legal Affairs Department, Government of Rajasthan, vide letter dated 5.5.1994 informed the Rajasthan High Court that past services rendered by him was countable for pensionary benefits.
18. The fairness to the petitioner we must say that we are not satisfied with the explanation of the respondents but we are of the view that the claim of the petitioner cannot be allowed on wrongs precedents. Article 14 of the Constitution of India is not meant to perpetuate any wrong or illegality and, therefore, the fact that R.S. Gupta was allowed the benefit of past service, per se cannot be a circumstance to grant similar benefit to the petitioner too.
19. The case of Udai Singh Udawat was decided placing reliance on Paragraph Nos. (v) and (vi) of Section III of Appendix IX inserted therein vide order dated 19.8.1989, referred to above. The petitioner (of that case) was allowed the benefit of the past service under the Jai Narayan Vyas University on his agreeing to refund the amount of provident fund which he had received from the University on the terminal benefit with 6% interest- relying on paragraphs (v) and (vi) of the G.O. dated 19.8.1989. We have quoted the said paragraphs and observed that instructions contained in Appendix IX can be applied only in the case of absorption of employees who earlier served under Autonomous Bodies/Statutory Bodies under the Central Government and came to the State Government where they were absorbed and vice-versa. Unfortunately, this aspect of the case was not brought to the notice of the Court and simply on the ground that the petitioner was prepared to refund pro rata benefit of retrial dues to the Jai Narayan Vyas University, Jodhpur, in view of Paragraphs (v) and (vi) of the G.O., direction was issued to count the past service. The instructions contained in Appendix IX Section III have to be read as a whole and not piecemeal. A judgment rendered per incurium is not binding and therefore we are unable to pass similar order following the decision.
20. In fairness to the petitioner, we may mention that drawing support from the order in case of Udai Singh Udawat, counsel submitted that the petitioner too is prepared to refund the amount. We regret it is not possible to take this course, for, as stated above, in our opinion, such an offer can be accepted only in a case where person has been absorbed in the service of the State Government. The present case being a case of direct recruitment on the basis of competitive examination, the petitioner cannot claim benefit under Appendix IX Section III.
21. Counsel also placed reliance on the case of M.C. Dhingra v. Union of India and Ors. . We are afraid, reliance on the case is totally misplaced. In that case the provision in a circular confining the benefit only to persons retiring on or after the date of issuance of the circular had been called in question. The question for consideration was whether the cut-off date was arbitrarily fixed. Relying on the decisions in D.S. Nakara v. Union of India and R.L. Marwaha v. Union of India , the Court held that there was no rational nexus and accordingly, though the appellant had retired much earlier than the “cut-off” date, he was held entitled to the benefit for pro rate pension for the previous service in terms of the circular. The point in issue was thus entirely different and the decision lends no support to the case of the petitioner.
22. To sum up, the petitioner being a direct recruit, appointed on the basis of competitive examination; in the absence of any rule or instruction of the State Government allowing the benefit of past service under a different employment altogether, the claim of the petitioner has no legal basis and the desired relief therefore cannot be granted,
23. The petition being devoid of merit is dismissed.