HARI DEB BANERJI Vs. UNION OF INDIA & ANR.
LAWS(SC)-1990-7-74
SUPREME COURT OF INDIA
Decided on July 26,1990

Hari Deb Banerji Appellant
VERSUS
Union Of India And Anr. Respondents

JUDGEMENT

- (1.)This appeal is directed against the judgment of the Central Administrative Tribunal, Allahabad, which dismissed the appellant's petition by its judgment and order dated 29.4.1987. The few facts which are required to be stated for the disposal of this appeal are as under.
(2.)The appellant jointed service some time in 1949 in the Office of the Accountant General, Uttar Pradesh as an Upper Division Clerk. On 15.3.1962 he was sent on deputation to the Indian Drugs and Pharmaceuticals Limited, a public section undertaking of the Government of India. He served in the said undertaking till January 1968 as an Assistant. On 13.1.1968 the I.D.P.L. issued a notice inviting applications within six days to fill up one vacancy of Junior Officer (Personnel). The appellant responded to this notice and applied for the said post. He was selected and appointed to the said post, vide letter dated 1.2.1969. Thereupon he wrote a letter to the Accountant General, U.P. resigning from service w.e.f. 3.2.1968. Thereafter, vide letter dated 12.2.1968, he wrote to the Accountant General that he had come to know that under the extent rule he was entitled to pensionary benefits since his absorption in I.D.P.L., vide letter of 6.5.1968 which in terms recommended his absorption in the undertaking in public interest. In this connection, reliance was placed by the appellant on Office Memorandum No. F.24 (12) EV/66 dated 16.6.1967 of the Ministry of Finance, Department of Expenditure, Government of India, whereunder on his absorption in public interest he would be entitled to pensionary benefits pro rata. It appears from the communication of the Accountant General in answer to the Senior Deputy Accountant General's D.O. letter dated 19.8.1972 that the appellant was denied the benefit of the aforesaid Office Memorandum on the ground that he had while forwarding his resignation letter dated 3.2.1968 not disclosed that the I.D.P.L. had agreed to absorb him in public interest. The relevant observation in the communication reads as under:-
'While forwarding his letter of resignation to this office vide their letter dated 3.2.68 (copy enclosed) his foreign employers had not stipulated that Shri Banerjee's permanent transfer to the company would be in public interest, nor had any claims for retirement benefits, envisaged n the Government of India, Ministry of Finance O.M. No.F.24(22) EV-66 dated 16.6.67, been put forward, although by then, the contents of the Government Order mentioned above had already become common knowledge.'

(3.)The grievance of the Accountant General was that his office had not been consulted about the proposed permanent absorption of the appellant in the service of I.D.P.L. It is indeed true that the appellant had not forwarded his application for appointment to the post of Junior Officer (Personnel) in I.D.P.L. through proper channel. That must, however, be excused because the applications were invited on 13.1.1968 and were to be forwarded within six days only leaving no time whatsoever to the appellant to forward within six days only leaving no time whatsoever to the appellant to forward the same through a superior officer who too was on deputation on the establishement of I.D.P.L. Having regard to the time factor it was not possible for the appellant to forward his application for the appellant to forward his application through proper channel because if he had done so the application would certainly have been delayed beyond the period of six days. The Accountant General while considering the representaion of the appellant ought to have realised this peculiar difficulty which compelled the appellant to forwarded the application in the manner he did. In May 1968, he made a representation requesting for the grant of retrial benefits under the Office Memorandum of 16.6.1967 and along with that representation he sent a communication of I.D.P.L. stating that his absorption was in public interest. The Accountant General did not act on this communication for the following reasons:-
'Even this belated communication shed no light on the circumstances leading to Sri Banerjee's permanent absorption in the company's service. Details were, therefore, called for to ascertain whether the test of public interest, as amplified later on vide Comptroller and Auditor General's circular was satisfied in this case or not. This letter elicited no response from I.D.P.L. and consequently, we could not proceed further in the matter.'

It was on account of this observation that this Court by its order dated 5.12.1989 directed the Accountant General to 7reconsider the appellant's case. We are, however, told by the learned counsel for the Union of India that he has received a communication from the Administrative Officer (Legal) of the Office of the Comptroller and Auditor General stating that they see no reason to change their stand from that one taken by the office in the proceedings before the Tribunal as well as this Court. We are, therefore, required to examine the correctness of the stand. We find that the failure on the part of the I.D.P.L. to intimate the circumstances under which the appellant was granted permanent absorption can in no way prejudice the case of the appellant. The learned counsel for I.D.P.L. stated that they considered the appellant's absorption i n public interest since he was working with them since 1962 and was selected for the higher post also. The Accountant General's service. That is not the stand taken in this appeal. On the other hand, I.D.P.L. was in need of the appellant who was working with them since 1962. He was selected for the higher post. The I.D.P.L. considered his absorption in with held his concurrence on the plea that this fact was no brought out in the letter of resignation but the same was rejected on the plea that I.D.P.L. had not responded to its communication. But for that the appellant is not to blame. We think the Accountant General office was not justified in refusing the appellant's request on the said ground. The reasons of r considering th e absorption in public interest are writ large on the record and are not far to seek. We are, therefore, of the opinion that in the facts and circumstances of this case, the appellant is entitled to the benefits of the O.M. dated 16.6.1967. We, therefore, direct that his prorata pensionary benefits should be calculated within a period of three months from today and be paid to him in accordance with O.M. No.F,24 (12) - EV 66 dated 16.6.1967.

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