DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI CORPORATION OF INDIA & ANR.versusSMT. MAGI H DESAI

660                      [2023]REPORTS
               SUPREME COURT    3 S.C.R. 660                 [2023] 3 S.C.R.


A      DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI
                CORPORATION OF INDIA & ANR.
                                         v.
                             SMT. MAGI H DESAI
B                        (Civil Appeal No. 1787 of 2023)
                                MARCH 24, 2023
                [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

            Central Civil Services (Pension) Rules, 1972 – rr. 13, 14 –
C     High Court directed that the services of the respondent rendered as
      contractual/casual shall be liable to be counted as temporary service
      for calculating the qualifying service for pensionary/retiral benefits
      – Held: High Court materially erred in observing that the contractual
      service would be qualified as service in a temporary capacity –
D     Service rendered as casual/contractual cannot be said to be service
      rendered on a substantive appointment – Neither the rule nor the
      regularisation scheme provide that services rendered as casual/
      contractual shall be treated as temporary service and/or the same
      shall be counted for the purposes of pensionary/service benefits –
      Impugned judgment passed by the High Court is quashed and set
E     aside – Judgment of the Tribunal dismissing the OA filed by the
      respondent is restored – Service Law.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1787
      of 2023.
F           From the Judgment and Order dated 17.02.2022 of the High Court
      of Gujarat at Ahmedabad in SCA No. 14592 of 2021.

            Rajeev Sharma, Sr. Adv., Sahil Bhalaik, Tushar Giri, Sohan Patil,
      Saket Chandra, Pranav Giri, Ms. Gulshan Jahan, Advs. for the Appellants.
G
           Hardik Virendrakumar Vora, Ms. Neelam Singh, Sameer Singh,
      Karan Thakur, Vijay Kumar Singh, Ashish Sheoran, Advs. for the
      Respondent.


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                                        660
          DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI                         661
             CORPORATION OF INDIA v. SMT. MAGI H DESAI


         The Judgment of the Court was delivered by                           A
         M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 17.02.2022 passed by the High Court of Gujarat at
Ahmedabad in R/Special Civil Application No. 14592/2021, by which
the Division Bench of the High Court has allowed the said writ petition       B
preferred by the respondent herein and has directed that the services of
the respondent herein – original writ petitioner rendered as contractual
shall be liable to be counted as temporary service for the purpose of
calculating the qualifying service for pensionary/retiral benefits, the
Director General, Doordarshan Prasar Bharti Corporation of India and          C
another have preferred the present appeal.
         2. The facts leading to the present appeal in a nutshell are as
under:
       That the respondent herein – original applicant was engaged as a
General Assistant on contract/casual basis in the year 1985. The services     D
of the respondent as General Assistant on contract/casual basis were
thereafter extended from time to time, however, with break of few days.
The original applicant thereafter filed Original Application No. 32/1987
before the Central Administrative Tribunal, Ahmedabad Bench,
Ahmedabad (for short, ‘the Tribunal’). The said OA was partly allowed         E
vide order dated 30.08.1990 with a direction to the department – appellants
herein to pay her the same salary and allowances that were being paid
to other regular General Assistants/Clerks from October, 1990 with
arrears.
       2.1 That thereafter, pursuant to the decision of the Principal Bench   F
of the Central Administrative Tribunal, New Delhi to regularise casual
employees by way of framing of scheme, the services of the original
applicant came to be regularised as Lower Division Clerk with effect
from 31.03.1995 pursuant to the Scheme of Regularisation of Casual
Staff Artists of Doordarshan, 1992/94. The original application was given
the regular scale of Lower Division Clerk from the date of regularisation     G
on the said post.
      2.2 That thereafter the original applicant approached the Tribunal
seeking consideration of her past service. The said OA came to be
dismissed, which was the subject matter of writ petition before the High
Court. The High Court was pleased to permit the original applicant to         H
662            SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A     submit representation to the department. That thereafter the respondent
      – original applicant submitted representation dated 11.4.2014. Vide order
      dated 18.09.2014, the department rejected the representation of the
      respondent for giving her the benefit of casual/contractual services
      rendered by her from 1985 till 31.03.1995 for calculating the pensionary/
      service benefits.
B
             2.3 That thereafter, the original applicant filed another OA No.
      446/2014 before the Tribunal. By a detailed judgment and order dated
      08.09.2021, the Tribunal dismissed the said OA by observing that the
      services rendered by the respondent as contractual/casual cannot be
      treated and/or considered as temporary service and therefore the services
C     rendered as such shall not be counted for the purpose of retiral benefits/
      service benefits. The judgment and order passed by the Tribunal
      dismissing the OA was the subject matter of writ petition before the
      High Court. By the impugned judgment and order, the Division Bench of
      the High Court has observed that the services in temporary capacity will
D     include the classes of temporary servants such as casual or even
      contractual. By observing so and relying upon Rule 13 of the Rules
      applicable, the High Court has allowed the writ petition and has directed
      that the services of the respondent – the writ petitioner rendered as
      contractual/casual shall be liable to be counted as temporary service for
      the purposes of calculating qualifying service in accordance with the
E     rules and accordingly she shall be paid the pension on her retirement.
      The impugned judgment and order passed by the High Court is the subject
      matter of the present appeal.
             3. Shri Rajeev Sharma, learned Senior Advocate appearing on
      behalf of the appellants has vehemently submitted that admittedly since
F     1985 till her services were regularised on 31.03.1995, the respondent
      rendered the services as a casual/contractual employee. It is submitted
      that the services rendered as a casual/contractual employee cannot be
      said to be rendering services as a temporary employee and/or rendering
      a temporary service. It is submitted that therefore proviso to Rule 13 of
G     the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to
      as the ’1972 Rules’) shall not be applicable and therefore the services
      rendered as such as casual/contractual employee cannot be counted for
      the purposes of pensionary benefits/service benefits.
            3.1 It is submitted that the High Court has therefore misinterpreted
H     Rule 13 of the 1972 rules and has materially erred in observing and
      DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI                                 663
   CORPORATION OF INDIA v. SMT. MAGI H DESAI [M. R. SHAH, J.]


holding that the services in temporary capacity will include the classes          A
of temporary service such as casual or even contractual.
      3.2 Making above submissions, it is prayed to allow the present
appeal.
       4. The present appeal is vehemently opposed by Shri Hardik Vora,
learned counsel appearing on behalf of the respondent. It is submitted            B
that as such the respondent is claiming 50% of the services rendered as
casual or contractual. It is submitted that in other departments, the
schemes provide for 50% of the services rendered as casual be treated
as services rendered as temporary service and therefore the same is to
be counted for the purposes of pensionary benefits/service benefits.              C
However, learned counsel appearing on behalf of the respondent is not
in a position to point out any statutory provision under which the
respondent is claiming 50% services rendered as a casual/contractual
for the purposes of pensionary benefits/service benefits. However, it is
submitted that as in the other departments, such a scheme is there and
therefore the respondent is claiming the same benefit.                            D

       5. We have heard learned counsel for the respective parties at
length.
       At the outset, it is required to be noted and it is an admitted position
that for the period between 1985 till 31.03.1995 the respondent served            E
as a casual/contractual employee and her services came to be regularised
as per the Scheme w.e.f. 31.03.1995. As such, under the Scheme of
Regularisation, there is no mention that the casual services shall be
counted towards service benefits/pensionary benefits. Even as per the
clarification issued by the DOPT in the year 2009, it was clarified that
such appointee is not entitled to claim any benefit out of the services           F
rendered by him/her on contractual basis before he/she was appointed
on regular basis on a government post.
      6. The respondent is governed by the Central Civil Services
(Pension) Rules, 1972. Rules 13 & 14 of the 1972 Rules, which are
relevant for deciding the controversy in the present case, read as under:         G
       “13. Commencement of qualifying service - Subject to the
       provisions of these rules, qualifying service of a Government
       servant shall commence from the date he takes charge of the
       post to which he is first appointed either substantively or in an
       officiating or temporary capacity :                                        H
664            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A                   Provided that officiating or temporary service is followed
            without interruption by substantive appointment in the same or
            another service or post :
                Provided further that –
                (a) in the case of a Government servant in a Group ‘D’…….
B               (b) in the case of a Government servant not covered by clause
                (a),…
            14. Conditions subject to which service qualifies:
                    (1) The service of a Government servant shall not qualify,
            unless his duties and pay are regulated by the Government, or
C           under conditions determined by the Government.
                    (2) For the purposes of sub-rule (1), the expression
            “Service” means service under the Government and paid by that
            Government from the Consolidated Fund of India or a Local Fund
            administered by that Government but does not include service in
D           a non-pensionable establishment unless such service is treated as
            qualifying service by that Government.
                    (3) In the case of a Government servant belonging to a
            State Government, who is permanently transferred to a service
            or post to which these rules apply, the continuous service rendered
            under the State Government in an officiating or temporary
E
            capacity, if any, followed without interruption by substantive
            appointment, or the continuous service rendered under that
            Government in an officiating or temporary capacity, as the case
            may be, shall qualify :
                     Provided that nothing contained in this sub-rule shall apply
F           to any such Government servant who is appointed otherwise than
            by deputation to a service or post to which these rules apply.”
            7. Rule 13 of the 1972 Rules provides for commencement of
      qualifying service. As per Rule 13, qualifying service of a Government
      servant shall commence from the date he takes charge of the post to
G     which he is first appointed either substantively or in an officiating or
      temporary capacity. It further provides that such officiating or temporary
      service is followed without interruption by substantive appointment in
      the same or another service or post. Therefore, the services rendered
      on a substantive post or services rendered as officiating or temporary
      service shall be treated as qualifying service. Service rendered as casual/
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       DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI                                 665
    CORPORATION OF INDIA v. SMT. MAGI H DESAI [M. R. SHAH, J.]


contractual cannot be said to be officiating or temporary service. Even            A
the services rendered as temporary service can be considered as
qualifying service provided that the officiating or temporary service is
followed without interruption by substantive appointment in the same or
another service or post. Service rendered as casual/contractual cannot
be said to be service rendered on a substantive appointment.
                                                                                   B
       8. Under the circumstances and on a fair reading and interpretation
of Rule 13 of the 1972 Rules, the High Court has committed a very
serious error in observing that the services in temporary capacity will
include the classes of temporary service such as casual or even
contractual. The High Court has materially erred in observing that the
contractual service would be qualified as service in a temporary capacity.         C
The question is not whether the services rendered by a contractual
employee would be qualified as service in a temporary capacity. The
question is, whether, in fact, such contractual employee rendered the
services as temporary or not.
       9. Now so far as the submission on behalf of the respondent that            D
in other departments under the scheme the employees of such
departments are entitled to their services rendered as casual/contractual
counted for qualifying service for pensionary/service benefits is
concerned, merely because some other departments might have such
schemes, the respondent shall not be entitled to the same benefit in
absence of any scheme in the appellants’ department/department in which            E
the respondent rendered her services. The appellant – Doordarshan
Prasar Bharti Corporation of India is an autonomous independent
department/body. As observed hereinabove, neither the rule nor the
regularisation scheme provide that services rendered as casual/
contractual shall be treated as temporary service and/or the same shall            F
be counted for the purposes of pensionary/service benefits.
       10. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court is unsustainable
and the same deserves to be quashed and set aside and is accordingly
quashed and set aside. The judgment and order passed by the Tribunal
                                                                                   G
dismissing the Original Application is hereby restored. Present appeal is
accordingly allowed. However, in the facts and circumstances of the
case, there shall be no order as to costs.

Divya Pandey                                                     Appeal allowed.
(Assisted by : Abhishek Agnihotri and Roopanshi Virang, LCRAs)                     H