Decided on January 17,1968

Rakesh Ranjan Kar Appellant
Commissioner Of Income Tax, Assam Nagaland Etc. Respondents


C.S. Nayudu, J. - (1.)THE only point that arises for consideration in this petition under Article 226 of the Constitution is whether the Petitioner Sri Rakesh Ranjan Kar, a temporary Government servant, who had rendered service in a temporally capacity and had ceased to continue in service and was subsequently re -engaged and thereafter confirmed in service, could claim the benefit of the service previously rendered by him in a temporary capacity for p purposes of counting for calculation of his pension.
(2.)BRIEFLY the facts are that the petition served as a temporary Clerk in the Income Tax Department, Silchar from 14 -6 -1930 to 31 -8 -1930. Then he ceased to hold any post in the Department. Subsequently on 10 -3 -1931 he was re -employed in a temporary post in the Income Tax Department, Silchar. This post he held till 31 -8 -1931. Here again there was apparently no place for him thereafter in the Department and the Petitioner was discharged from service. Thereafter on 3 -12 -1931 he was re -employed as a temporary lower division clerk in the same Department, which post he held till 30 -6 -1936, that is, for a period of 4 years 6 months and 28 days. Thereafter as there was no need for extra hands and the extra hands apparently had to be retrenched, the Petitioner had to leave service on 30 -6 -1936. More than three years later, on 19 -10 -1939 the Petitioner was again employed in Government service in the Income Tax Department. This time he was lucky in that he was allowed to continue in service and was. later confirmed in the post he was holding, the time of such confirmation being about the year 1940. Having thus got a permanent footing in Government service, he continued to serve till 1st July, 1965, when he apparently attained superannuation and retired from service. The point that Mr. Bhattacharjee, the learned Counsel for the Petitioner very strongly urged is that as the Petitioner was in service from 3 -12 -1931 to 30 -6 -1936, although in a temporary capacity, and as he had been discharged on retrenchment, it must be held having regard to the language of Article 420 of the Civil Service Regulations, Volume I, 4th Edition, 1960, that there was no interruption in his service, and, therefore, he could count that service of 4 years 6 months 28 days as qualifying service for purposes of calculating his pension. In this context he placed reliance on Articles 361 and 368 of the Civil Service Regulations. Article 361 incorporates the conditions of qualifications of service for pension. It reads as follows:
361. The service of an officer does not qualify for pension unless it conforms to the following three conditions -First -The service must be under Government. Second -The employment must be substantive and permanent. Third -The service must be paid by Government.

Article 368 runs as follows:

368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

Provided that in the case of an officer retiring from service on or after the 22nd April, 1960, if he was holding a substantive office on a permanent establishment on the date of his retirement, temporary or officiating service under the Government of India, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of.

(i) Periods of temporary or officiating service in non -pensionable establishments;

(ii) Periods of service in work charged establishment; and

(iii) Periods of service paid from contingents.

(3.)IT is clear from the above Article that if person holds a substantive office on a permanent establishment on the date of his retirement and he retires from service on or after 22nd April 1960, temporary or officiating service under the Government of India can be counted as qualifying service, provided the substantive service continued without interruption of the temporary or officiating service.

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