- (1.) The petitioner, who had retired from Khadi and Village Industries Commission, described as the 1st respondent, seeks for counting of his period of service that he had rendered in the State Government service for 6 years, 4 months and 12 days for his pensionary benefits. It is not denied that the petitioner had served with the Punjab Government from 04.11.1949 to 16.03.1956 on regular basis. During his service in the Punjab Government with the Director, Health Services, Punjab, he had applied for the post of Organizer in the Oils Department with All India Khadi and Village Industries Board and his application for appointment was forwarded through proper channel by the Director, Health Services, Punjab. Initially, there was a stipulation that in the event of selection, he would have resigned from the post of Storekeeper held by him with the State Government. However as admitted by the respondents in the written statement filed and stated in para 5, this was modified to the effect that his lien would be retained for the post of Storekeeper, in case, he was selected for any post applied by him. This modification came through a memorandum issued on 06.01.1956. The petitioner had been appointed as State Development Officer in the Khadi Board on 12.01.1956 and the petitioner had joined the service on 16.03.1956.
(2.) The entitlement to the petitioner's services in the State Government is sought by the petitioner on the basis of the Government of India instructions issued by the Department of Personnel on 31.03.1982. It sets out three categories of persons, who could have served either in Central or State Government and taken up a fresh appointment in State or Central Government, as the case may be, after retrenchment from the service in the earlier establishment. Of the three categories, categories 1 and 2 were stated in Central Government notification as allowing entitlement for counting of the previous service. The two categories are mentioned herein below:- "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 interruption between the date of retrenchment and date of new appointment; 2. Those who while holding temporary posts under Central/State Governments apply for posts under State/Central Governments through proper channel with proper permission of the administrative authority concerned." Elsewhere in the same notification, the Central Government has stated that the benefit would be allowed to the Government servants in categories 1 and 2. The only class of persons which the notification excludes is given in clause 3 which excludes persons, who have held temporary posts in Central or State Government and without permission of the administrative authority resigned the previous post to join the new appointment. In this case, it is clearly admitted even in the written statement that the petitioner had applied through the proper channel and was even allowed to retain his lien in his previous appointment which was later given up. The 1982 notification makes possible the computation of previous service even if there had been a break in service. The issue that the petitioner was treated as a fresh appointee with the Khadi Board that later became a Commission after the Central Act of 1956 is thus wholly irrelevant. While rejecting the petitioner's prayer, two reasons have been given; (i) a reference to a judgment of this Court in CWP No.2034 of 1985 where this Court had held that the petitioner's appointment with the Khadi Board was not by means of deputation or transfer. Such a consideration, in my view, is wholly irrelevant if the 1982 notification is read; (ii) the second reason for the denial of the petitioner's entitlement through the impugned order is that the pension scheme was introduced in the Khadi Commission only in the year 1984. The 1984 scheme itself reveals that after a judgment of the Bombay High Court in WP No.1034 of 1986, the scheme notified on 27.09.1984 was applicable to all employees of the Corporation, who had retired on or after 30.10.1980, subject to certain conditions. The impugned order states that the question of counting of past service rendered in other Government Departments had arisen only after the introduction of the Pension Scheme of the year 1984 and, therefore, for the purpose of counting of past service rendered by the Government Departments by employees of the Commission only Rules as per prevailing as on the date which the Regulation came into existence were relevant. Since the cut off date was 26.09.1984 for the application of the pension scheme, the benefit of Government of India notification dated 31.03.1982 would not apply.
(3.) The reasoning adopted in the impugned order is wholly unacceptable and meaningless. It contains a factual error in stating that the scheme was applicable only from 30.04.1984. It must be understood in the context of the manner of application to all persons, who had retired even earlier. The cut off period was not 30.04.1984 but it was 30.10.1980. The cut off period must be understood as the period which is relevant for an employee, who was entitled to the benefit of the scheme. The scheme itself may have been introduced later in the year 1984, but that shall not be taken as a cut off period. The second line of reasoning that since the employees, who would be governed by the Regulation by taking into account the terms of the scheme, dated 26.09.1984, the benefit of the Government of India instructions issued on 31.03.1982 is illogical if there was a direction by the Central Government in the year 1982 and the scheme was brought about later. The said instructions must be read into the scheme for itself application unless there was a specific class in the scheme which excluded the application of the instructions which was prevailing at the time when the scheme must brought.;