SH. BAU NATH GUPTAversusSTATE OF BIHAR AND ORS.

A                             SH. BAU NATH GUPTA
                                           v.
                          STATE OF BIHAR AND ORS.

                                  AUGUST 12, 1996

B                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

           Central Civil Service Pension Rules, 1972 : Chapter 3 Rule 14-Ap-
    plicability of

C          Service Law-Pension-Government circular dated 31st March,
     1982-Employe~Appointment on temporary basis in Government of
    U.P.-Subsequent regular appointment in State of Bihar-Service rendered in
    fonner State 11ot qualifyi11g for pe11sion u11der Ru/es-Claim for pe11sion and
    interest 011 delayed payment-Writ for-Dismissal by High Court-Ap-
    peal-Held since the appellant has not re11dered JO years of qualifyi11g service,
D   he is not eligible for proportionate pensio11 from the State of U.P. even if it is
    assumed, without deciding whether Central rule would apply to a Government
    seroant under twn State Goveniments, one on teniporary basis and the other
     as permanent employee.

E          Service Law-Pension-Delay i11 payment-Claim for interest-No ex-
    planation as to the grou11ds on which delay had occasioned-Employee
    directed to file petition before State Government-Enquiry-Employee to be
    paid interest if Government was respo11Sible for delay.

             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10914 of
F    1996.

            From the Judgment and Order dated 11.7.95 of the Patna High Court
    . in C.W.P. being C.W.J.C. No. 11563 of 1993.

             R.K. Jain, Rakesh Garg and S.P. Sharma for the Appellant.
G
         AB. Rohtagi and N.N. Goswami, Sr. Advs., B.B. Singh, R.B. Misra,
     Kamalendra Mishra and Ms. C.K. Sucharita for the Respondents.

             The following Order of the Court was delivered :

H            Leave granted.
                                           566
                          B.N.GUPTAv. STATE                              567

      We have heard learned counsel on both sides.                              A

       The appellant was appointed on temporary basis as Assistant Master
on December 9, 1995 in the Directorate of Industries, Government of U.P.
and was posted at Kanpur. After working for four years he was selected
by Bihar Public Service Commission by direct recruitment and was ap-            B
pointed in the Government Polytechnic under the Department of Science
and Technology on January 6, 1959 and he resigned from the. U .P. Service
w.e.f. January 7, 1959. He was appointed, thereafter, in the services of the
Government of Bihar. He retired w.e.f. December 1, 1982 while working
in the workshop as Superintendent of the Government Polytechnic at
Patna. A dispute arose as regards his entitlement for pension and propor-       C
tionate distribution of pension between the State of U.P. and the Govern-
ment of Bihar. He wrote a letter to the Chief Justice of Patna High Court
on November 28, 1993 on the basis of a judgment rendered by that Court
on August 4, 1992 stating that he would be entitled to interest on the
delayed payment of pension and gratuity. The High Court instead of              D
treating that letter as a writ petition directed the appellant to make a
representation to the Government and the Government would consider
and dispose of the claim for payment in that behalf. When the interest was
not paid on pension quantified, the appellant filed the present writ petition
in the High Court claiming proportionate pension from U.P. Government
and al>o for interest. In CWJC No. 11563/93 by judgment dated July 11,          E
1995 the High Court dismissed the writ petition. Thus this appeal by special
leave.

      As regards the entitlement for proportionate pension from the State
of U.P. for the period he served between December 9, 1955 to January 7,         F
1959, Shri R.K. Jain learned Senior counsel for the appellant, placing
reliance on the letter written by the Union of India dated March 31, 1982
(at page 39 of the paper book), contended that the appellant is entitled to
the proportionate pension even for temporary service rendered by him.
Shri A.B. Rohtagi, learned Senior counsel for the respondent-State of U .P .,   G
contended that prior to 1.7.1989 the temporary Government servants were
not eligible for any pension under the provisions of Rule 368 of the Civil
Service Pension Rules. The Government have considered and decided on
the said date that proportionate pension would be granted if the Govern-
ment servant has put in qualifying temporary service of at least 10 years.
Since the appellant had not put in the qualifying service, he is not eligible
    568                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A   for the pension. Shri fain contends that this rule has no application for the
    reason that it has come into force with effect from 1.7.89. In view of the
    circular of the Government of India referred to earlier, the Government
    servant will be entitled to proportionate pension for the service rendered
    as a temporary Government servant under the State Government. The
    State of U .P. was a party to the above resolution and, therefore, they are
B   bound by the same.

          Having considered the respei:;tive contentions, the question arises:
    whether a Government servant who was on temporary service is entitled to
    the proportionate pension , after his regular employment in another State
c   Government service in terms of the Circular dated March 31, 1982? It is
    seen that the above Circular refers to Rule 14 under Chapter 3 regarding
    the qualifying service of the Government of India employees. Therein, it is
    envisaged that the counting of temporary service of the Government ser-
    vant either in the Central Government or State Government prior to
    securing a post on permanent basis either under the State Government or
D the Central Government on his own employment or on the advertisement
    of a circular or recruitment through public service commission, he is
    entitled to propo:tionate pension. It emosages as under :

             n·rhe Government servants clain1ing the benefit of combined ser-
E            vice in terms of the above decision are likely to fall into one of the
             following categories :

                 (1) Those who having been retrenched from the service of
             Central/State Governments secured on their own employment
             under State/Central Governments either with or without interrup-
F            tion between the date of retrenchment and date of new appoint-
             ment.

                (2) Those who while holding temporary posts under
             Central/State Governments apply for posts under State/Central
             Governments direct without the permission of the administrative
G            authority concerned and resign their previous posts to join the new
             appointments under State/Central Governments."

           In either event the benefit was allowed to such a Government servant
     provided that the eligibility in respect of temporary service rendered under
H    the Central Government or the State Government to the extent of such
                          B.N.GUPTAv. STATE                             569

temporary service would be counted for computation of the qualifying A
period for grant of pension under the rules of respective Central or State
Government, on a service sharing basis, so that the Government servants
are allowed the benefit of counting their qualifying service both under the
Central Government and .the State Government concerned for grant of
pension by the Government from where they eventually retire. The paying        B
Government would get reimbursement from the other Government. But it
does not apply to two State Governments unless there is such reciprocal
rule and subject to eligibility.

      It is seen that in the U.P. State prior to 1.7.89, no Government
servant who rendered temporary service was eligible for pensionary             C
benefits. Therefore, the Government decided as on the said date to grant
pensionary benefits to such of the temporary employees who had put in
qualifying service of minimum of 10 years for being eligible for pension.
Under those circumstances, since the appellant has not rendered 10 years
of qualifying service, he is not eligible for proportionate pension from the   D
State of U.P. even if we assume, without deciding whether Central rule
would apply to a Government servant under two State Governments, one
on temporary basis and the other as permanent employee.

      The next question is: whether the appellant is entitled to payment of    E
interest on the delayed fixation of pension by the State of Bihar? The State
of Bihar in their counter affidavit has mentioned that the pension was in
correspondence between various departments etc. The payment of the
pension of the appellant and the revised pension and arrears were detailed
in paragraph 10 of SLP filed by the appellant himself at pages 16-17 as
under :
                                                                               F

          "(x) That the pension of petitioner was fixed or revised and the
          arrears thereof paid as per details given below :
                                                           Month & year
               Pension fixed or revised       Amount of                        G
  S. No.                                                   of payment of
                vide letter No. & date.      Pension fixed
                                                           pension/arrear.
     1.      P.P. No. 120257 dated 16.3.85    Rs. 466.00      May, 1985
     2.      P.P. No. 1581 dated 30.11.90     Rs. 501.00     Dec., 1990
     3.      No. 1598 dt. 15.12.90            Rs. 608.00     Dec., 1990
                                                                               H
    570                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A         4.     No. 3963 dt. 9.10.91             Rs. 674.00      Dec., 1991
          5.     No. 4231 dt. 30.10.91            Rs. 691.00      Dec., 1991
          6.     No. 4974 dt. 30.12.91            Rs. 742.00      Feb., 1992
          7.     No. 94 dt. 19.4.94               Rs. 942.00      July, 1994."

B         Admittedly, the appellant had represented to the Chief Justice of the
    High Court of Patna for interest on account of the delay in payment and
    the matter was referred to the Government for consideration and the
    Government after consideration has revised the pension and fixed the
    pension as enumerated above. But there was no explanation as to the
C   grounds on which the delay had occasioned and why they had not paid the
    pension earlier to the appellant. Under these circumstances, we think that
    the appropriate course would be that the appellant should file a petition
    within.one month from today and the Government of Bihar should decide
    as to why the pension could not be settled to the appellant. If they find
    that the pension was not determined to the appellant in accordance with
D   the rules on account of any latches or grounds on the part of the appellant,
    the appellant obviously would not be entitled for payment of interest for
    the delayed payment of pension. On the other hand; if the Government was
    rdsponsible for the delay, necessarily the appellant would be entitled to the
    payment of interest on the delayed payment. The Government is directed
E   to consider and dispose of his petition within three months from the date
    of the petition.

           The appeal is accordingly disposed of. No costs.

    T.N.A.                                                  Appeal disposed of.