2016 (5) TMI 1601 - HC - Indian Laws

Rejection of claim of the petitioner for counting services rendered by him with the Auto Tractors Limited for the purposes of calculating the qualifying service prescribed for pensionary purposes under the relevant rules. HELD THAT - The government order dated 10.7.1998 relates to Central Government employees or employees of autonomous bodies of the Central Government seeking absorption in autonomous bodies under the State Government and the State Government employees seeking absorption in the Central Government or in the autonomous bodies of the Central Government for the purposes of counting their services rendered under their erstwhile employer for the pensionary benefits. Admittedly the petitioner does not fall in the aforesaid category as there is nothing on record to indicate that the A.T.L. was an autonomous body of the Central Government. The petitioner admittedly was not a State Government employee prior to his absorption. Furthermore the benefit mentioned in the said government order was available only if both the establishments were pensionable. Therefore even assuming the applicability of the said government orders there is nothing on record to show that the services of the petitioner in the A.T.L. were pensionable. Moreover the government order was subsequently clarified vide government order dated 28.12.2001 which has been impugned herein. It has been mentioned in the government order dated 28.12.2001 that the earlier government order dated 10.7.1998 was applicable only where pension scheme was applicable in the autonomous bodies referred therein however as at some places in the said government order the word Corporation/Undertaking has been used in place of autonomous bodies and considering the categorical policy of the Government of India that services rendered in a Corporation/Undertaking are not countable for the purposes of pensionary benefits therefore the government order dated 28.12.2001 on the same lines clarified its earlier order dated 10.7.1998 that the same shall be applicable only to autonomous bodies and not Corporations/Undertakings - Though the aforesaid government order considering the subject matter referred hereinabove do not apply to the case of the petitioner but assuming their applicability there is nothing on record to show that the expenditures of the A.T.L. were entirely or more than 50% of its financial requirements were financed by the State Government. There is another reason for non-applicability of the said government orders to the case of the petitioner that is absorption herein was made under the Rules of 1991 framed under the proviso to Article 309 wherein there was no such provision for giving the benefit of services rendered in the A.T.L. to the petitioner as has been held by the division Bench in Ram Shanker Gupta s case 2015 (11) TMI 1888 - ALLAHABAD HIGH COURT . The claim of the petitioner is without any factual or legal basis. The writ petition is accordingly dismissed.

Summary

Issues Involved:
1. Challenge to the order dated 21.1.2016 by the Principal Secretary rejecting the petitioner’s claim.
2. Counting of services rendered with Auto Tractors Limited (A.T.L.) for pensionary purposes.
3. Applicability of U.P. Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules 1991.
4. Protection of last pay drawn.
5. Applicability of U.P. Retirement Benefit Rules 1961 and Civil Services Regulations.
6. Reliance on the judgment in Hridesh Dayal Srivastava v. State of U.P. & Ors.
7. Government orders dated 10.7.1998 and 28.12.2001.

Detailed Analysis:

1. Challenge to the Order Dated 21.1.2016:
The petitioner challenged the order dated 21.1.2016 by the Principal Secretary, which rejected the petitioner’s claim for counting the services rendered with Auto Tractors Limited (A.T.L.) for pensionary purposes. The court examined the legal and factual basis of the Principal Secretary's decision and found it consistent with the applicable rules and regulations.

2. Counting of Services with A.T.L. for Pensionary Purposes:
The petitioner was employed with A.T.L. from 24.10.1980 to 20.11.1990. After A.T.L. closed, the petitioner was absorbed into the Entertainment Tax Department of the Government of U.P. on 19.2.1996. The petitioner sought to have his service period with A.T.L. counted towards his pension. However, the court found that the services rendered in A.T.L. were not pensionable and did not qualify for counting under the U.P. Retirement Benefit Rules 1961 and Civil Services Regulations.

3. Applicability of U.P. Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules 1991:
The petitioner was absorbed under the Rules of 1991, which did not provide for the inclusion of services rendered in A.T.L. for pensionary benefits. The court emphasized that these rules govern the absorption process but do not extend to counting non-pensionable service periods for pension calculations.

4. Protection of Last Pay Drawn:
The petitioner had earlier sought protection of his last pay drawn at A.T.L., which was granted by an order dated 11.10.2007. However, this protection did not extend to counting the A.T.L. service period for pensionary benefits.

5. Applicability of U.P. Retirement Benefit Rules 1961 and Civil Services Regulations:
The court analyzed Rule 3(8) of the Rules of 1961, which defines "qualifying service" for pension purposes. It concluded that only service under the Government of Uttar Pradesh qualifies, excluding non-pensionable service such as that rendered in A.T.L. Regulation 361 of the Civil Services Regulations further supported this interpretation, requiring government service for pension eligibility.

6. Reliance on the Judgment in Hridesh Dayal Srivastava v. State of U.P. & Ors.:
The petitioner relied on a previous judgment where past services were considered for pay fixation but not for pension calculation. The court clarified that the Division Bench in Hridesh Dayal Srivastava did not address the issue of counting past service for pension benefits. The Supreme Court's dismissal of the S.L.P. in that case left the question of law open, and thus, it did not serve as a binding precedent for the petitioner's claim.

7. Government Orders Dated 10.7.1998 and 28.12.2001:
The court examined these government orders, which pertain to counting service periods for pension when employees move between central and state government or autonomous bodies. The petitioner did not fall under these categories, and there was no evidence that A.T.L. was an autonomous body or that its services were pensionable. The government order dated 28.12.2001 clarified that the earlier order applied only to autonomous bodies, not corporations or undertakings like A.T.L.

Conclusion:
The court concluded that the petitioner’s claim lacked factual and legal basis. The services rendered in A.T.L. were not pensionable, and the relevant rules and regulations did not support counting this period for pensionary benefits. The writ petition was dismissed, and a copy of the order was directed to be sent to the Principal Secretary, Finance/Institutional Finance.