CALLA, J. - (1.) ALL these special appeals filed under Sec. 18 of the Rajasthan High Court Ordinance, 1948 are directed against the common judgment dated 29. 09. 1989, whereby 10 writ petitions had been allowed by the learned Single Judge holding the petitioners (respondents herein) to be also entitled to the payment of proportionate pension in accordance with rules in relation to the period covering the period from the date the petitioners ceased to be in Government service and were permanently absorbed in the University till they attained the age of 55 years. In two out of these ten cases i. e. in the case of Smt. Kamla wife of late Shri B. S. Mathur, and Smt. Kamla Sharma wife of Late Shri KG Sharma, they had filed the writ petitions as legal representatives of their husbands who were also the persons belonging to the same category, as the other eight petitioners. The learned single Judge gave further direction to the State Government to compute the said amount payable to each of the petitioners and pay the same within two months and in case of failure to pay the said amount within the period of two months, interest at the rate of 12% per annum on the said amount.
(2.) THE respondents in these special appeals were employees of the State Government and on transfer of Government colleges to the University, the Government in consultation with the University, considered the question of absorption of the teaching staff working in these institutions in the University service. According to the decision of the State Government, the Director, College Education, Rajasthan addressed the letter dated 21. 04. 1962 to the members of the teaching staff in the college/educational institutions. In the said letter, it was stated that for recruitment to additional teaching post that were required by the University as a result of transfer/merger of the colleges, the University had agreed to hold screening for the post of Professors, Readers and Lecturers from amongst the Principals of Post-graduate and degree colleges, post-graduate heads of Department and Lecturers and the members of the education service and for making selection for the post of Professors and Readers seniority with due regard to merit and suitability will be taken into consideration and the selection to the post of Lecturer shall also be made on the same basis. According to this letter, the selection was to be made by a Committee consisting of Vice-Chancellor of the University, Secretary to the Government in the Education Department, Director of College Education, a Professor of the University in the subject concerned, a Senior Principal of post-graduate College in the State and Expert in the subject to be invited from outside Rajasthan and the Registrar of the University. As per the aforesaid letter dated 21. 04. 1962, the teaching staff of the colleges/educational institutions which were transferred to the University by the State Government in 1962 were classified in the following three categories: - 1. Persons who had put in 25 years of service or more, on the date of such transfer. 2. Persons who had put in less than 25 years of service, but had put in 10 years service on the date of such transfer. 3. Persons who had put in less than 10 years service on the date of such transfer. For the persons falling in the first category i. e. those who had put in 25 years of service or more, it was provided that they would remain on deputation with the University till the date of their superannuation i. e. 55 years of age and, on retirement they would be granted pension according to the rules and leave salary to the extent leave due to their credit with the State Government on the date of deputation would be paid by the Government to the University and the University would pay pension contribution which would be limited to the amount of provident fund contribution payable by the University on their salary. Regarding the persons belonging to the second category i. e. those who had put in less than 25 years service, but had put in more than 10 years of service on the date of such transfer i. e. the persons like the respondents in these appeals, were offered two alternatives as under: - " (a) They may be granted proportionate pension and/or gratuity according to rules. The pension will only be allowed to be drawn on their attaining the age of 55 years. As for persons who are eligible to gratuity only, their gratuity amount will be credited to their provident fund account in the University as opening balance. " (b) The Government shall credit to the CPF account of the officers with the University as an opening balance on the date from which the persons are transferred to the University an amount equal to 8% of their monthly pay drawn by them from time to time under the Government with simple interest at the rate of 2% P. A. " With regard to the persons belonging to the third category namely those who had put in less than 10 years service, it was provided that they will not be entitled to proportionate pension under the Rules and they will be eligible for gratuity only and their gratuity amount was to be credited to their provident fund account in the University as opening balance. In these cases, we are concerned with the persons falling in the second category i. e. those who had completed 10 years of service, or more with the Government, but less than 25 years of service and all those persons had chosen the first alternative namely proportionate pension and gratuity according to the Rules. All those persons i. e. respondents herein, filed writ petitions before this Court after attaining the age of 55 years with the prayer that the State of Rajasthan may be directed to pay compensation pension with interest in terms of Rule 215 read with Rule 256, of RSR and all other provisions in that behalf on and from the date their services were transferred to the University. For the reliefs as aforesaid, alternative and allied prayers were also made and all these writ petitions were decided and allowed by the impugned judgment dated 29. 09. 1989. It was submitted before the learned Single Judge on behalf of the respondents herein that under sub-para 6 of letter dated 21. 04. 1962, they had a right to get proportionate pension according to the Rules in respect of the period covering the date on which they were permanently absorbed in the University and had ceased to be Government servant till they attained the age of 55 years and it was only the payment of the said amount of proportionate pension which had been deferred till the attainment of the age of 55 years and on attaining the age of 55 years, they were entitled to the payment of proportionate pension for the said period. This submission was contested on behalf of the State on the basis that in view of sub-para (a) of Para 6 of the letter dated 21. 04. 1962, the petitioners having chosen to opt for proportionate pension were only entitled to payment of proportionate pension after their attaining the age of 55 years and they were not entitled to any proportionate pension in respect of the period prior to their attaining the age of 55 years and that the petitioners cannot be permitted to enjoy the double benefit in respect of the period covering the date on which they were permanently absorbed in the University service and ceased to be in Government service till they attained the age of 55 years because during this period they were getting full salary from the University which was directed under the letter dated 21. 04. 1962. The learned Single Judge accepted the contention raised on behalf of the petitioner and held that the petitioners having ceased to be Government servants on their absorption in the University service were entitled to compensation pension on their discharge from the Government service under Rule 215 of the Rules. It was further held that there was no provision denying proportionate pension to the petitioners in respect of the period covering the date on which they ceased to be in Government service and were permanently absorbed in the University and till they attained the age of 55 years.
(3.) BEFORE us, the impugned judgment dated 29. 09. 1989, has been assailed by Shri M. I. Khan, Addl. Advocate General on the basis that the learned Single Judge has wrongly interpreted Rules 215, 343 and 347 of RSR and that the dispute should have been decided by the learned Single Judge in terms of tripartite agreement and the contents of the tripartite agreement would over-ride the RSR and that the Rajasthan Service Rules do not apply in view of the said agreement and that the University fund is also being paid from the consolidated fund and is a part of the consolidated fund and, therefore, the directions for payment of pension for the period when the petitioners were in the regular employment in an autonomous body could not be given. Shri Mridul, Senior Advocate, appearing on behalf of the petitioners i. e. respondents herein, has submitted that the cases have been decided on a correct interpretation of Rules 215,343 and 347, RSR and he has submitted that in case Rule 215 is read with Rule 343, it will be found that the petitioners were fully entitled to the pension as has been directed by the learned Single Judge. He has submitted that with the cessation or the petitioners from the Government service, they stood discharged from the Government service and the period of which they served in the University till they attained the age of 55 years could be treated as a case of re- employment. The submission of Shri Mridul was that it was only a case of deferred payment in terms of the agreement and the only effect of the agreement is that the pension could not be claimed before attaining the age of 55 years and even in terms of the agreement on which reliance was placed by the Government, the petitioners were entitled to pension for the period commencing from the date they ceased to be in the Government service and were absorbed in the University till attainment of the age of 55 years. We have considered the rival submissions and have gone through the agreement in question as well as the scheme of the relevant rules under the RSR. Rule 215 lays down the conditions for compensation pension and according to these rules, a Government Servant selected for discharge owing to the abolition of his permanent post, he shall unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option: - (a) of taking any compensation pension or gratuity to which he may be entitled for the service he has already rendered, or (b) of accepting another appointment on which pay, as may be offered, and continuing to count his previous service for pension. Rule 215 of RSR is reproduced as under: - "if a Government servant is selected for discharge owing to the abolition of his permanent post, he shall unless, he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be least equal to those of his own, have the option- (a) of taking any compensation pension or gratuity to which he may be entitled for the service he has already rendered, or (b) of accepting another appointment on such pay, as may be offered, the continuing to count his previous service for pension. " Rule 256 prescribed scale of pension and according to this rule pension is not permissible till the government servant has put in 10 year's service, in which case, he is entitled to the payment of gratuity only. According to this Rule 256, a government servant who has put in 10 years service or more is entitled to payment of pension according to the formula prescribed therein. Rule 256 is reproduced as under: - "256. Scale of pension :- Subject to the rules in this part the amount of superannuation, retiring, invalied and compensation gratuity and the pension admissible to a Government servant is as follows : - Completed six months periods of qualifying service Scale of gratuity/pension Maximum pensions (In Rs. per month) 1. (a) Gratuity 1-2 months emoluments 2. 1 months emoluments 3. 1-1/2 months emoluments 4. 2 months emoluments 5. 2-1/2 months emoluments ;