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Judgment
Kuldip Singh, J.—Special leave granted.
The Appellant joined Central Government service on March 2, 1974. He was selected for appointment as Senior Engineer in the National Thermal Power Corporation (NTPC), a Central Government Undertaking. He joined the NTPC on October 31, 1986. No specific order confirming the Appellant in the service of the Central Government was issued. The question before the Central Administrative Tribunal (the Tribunal), New Delhi was whether the Appellant was entitled to prorata pension for the period of his service under the Central Government. The Tribunal answered the question in the negative and rejected the claim of the Appellant on the short ground that the Appellant was- not a substantive employee of the Central Government. This appeal by way of special leave is against the judgment of the Tribunal dated October 24, 1991.
The Appellant joined the Central Government service on March 2, 1974 as Technical Assistant in the Office of the Director General of Supplies & Disposals and worked there till October 12, 1977. On October 13, 1977 he joined the Indian Meteorological Department (IMD) as Assistant Meteorologist after being selected through the Union Public Service Commission. He was placed on probation for a period of two years. He was permitted to cross the first efficiency bar on October 1, 1983. While working with the IMD he was selected for appointment as Senior Engineer in the NTPC. He was required to resign from the Central Government service for the purpose of joining the NTPC. The Appellant delayed his joining the NTPC because his case for confirmation as Assistant Meteorologist was under consideration of Central Government. The NTPC finally directed me Appellant to join on or before October 31, 1986. In the meantime. the Appellant was promoted as Meteorologist Grade-I in the IMD with effect from September 22, 1986 and posted at Pune. However, in order to pursue his case for confirmation, he decided to forgo the promotion. Despite repeated representation the IMD did not confirm the Appellant and, as such, he submitted his resignation on October 21, 1986 to the IMD.
He was relieved on October 30, 1986 by the IMD and he joined the NTPC on October 31, 1986. On February 11, 1987 the Appellant again represented to the Central Government requesting for the grant of prorata pension as he had served the Government for twelve years and eight months.
The Director General, IMD by his letter dated November 11, 1987 informed the Appellant that since the seniority list of the cadre of Assistant Meteorologist has been quashed by the Central Administrative Tribunal, Madras Bench, his case "for confirmation will be considered according to rules on the basis of revised seniority list when finalized."Since no decision was taken by the IMD for considerable time the Appellant approached the Tribunal seeking direction that he should be deemed to be a substantive employee of the central Government within the meaning of Rule 13 of the CCS (Pension) Rules 1972 (the Rules) and, as such, entitled to pension and other retrial benefits under the rules. As mentioned above, the Tribunal rejected the prayer.
The question whether the Appellant is entitled to prorata pension in respect of the service for the period of twelve years eight months rendered by him under Central Government depends on the whether he held the appointment in Service of the JMD in a substantive capacity. It is not disputed that the Appellant was appointed as Assistant Meteorology on October 13, 1977 by way of direct requirement through the Union Public Service Commission. Direct recruitment, inniably, is made against permanent va(sic)ries. It is not the case of the Respondents that the Appellant was appointed (sic)inst a temporary post. The Appellant was therefore, appointed as Assistant Merologist against a permanent vacancy. was on probation for a period of two, Hrs. His crossing the efficiency bar in October 1983 and further promotion to the post in September 1986 show that he was successfully completed his probation pe (sic) In any case it is obvious that the (sic) and conduct of the Appellant has throughout been satisfactory.
The finding of the Tribunal, that Appellant was working in an officiat-(sic)capacity, is solely based on the word-(sic) of the order dated March 29, 1984 showing the Appellant to cross the efficiency bar wherein it was mentioned that increment was being given to him in officiating post of Assistant Meteorology. We fail to understand how a direct truit in the post of Assistant Meteorology who joined service in 1977 and committed his probation in 1979, could be making against officiating post. As men-(sic)above, direct recruitment is always against permanent vacancies. A per-(sic)appointed against a permanent vacancy completing his probation period successfully, crossing the efficiency bar and promoted to the higher rank, cannot considered to be working in a officiating capacity.
It would be useful to refer to para 4 of the Office Memorandum dated January 31, 1986 which is in the following terms:
Pensionary benefits:
(i) Resignation from Government service with a view to secure employment in a Central public enterprises with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government Servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization.
It is not disputed that the Appellant resigned from government service with a view to secure employment in the Central public enterprise with proper permission of the Central Government. The Appellant is, therefore, entitled to the benefit of the above quoted Office Memorandum. We may also refer to para 4.1 of the Office Memorandum dated March 28, 1988 which is reproduced hereunder:
4.1 Confirmation
(a) General
(i) Confirmation will be made only once in the service of an official which will be in the entry grade.
(ii) Confirmation is delinked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the probation may be considered for confirmation.
The Memorandum dated March 28, 1988 came into force with effect, from April 1, 1988.
The Tribunal came to the conclusion that since the Appellant had resigned from the Central Government service before coming into force of the Office Memorandum dated March 28, 1988 the same was not applicable in his case.
It is not disputed that the Appellant had more than ten years of service under the Central Government. His service would count as qualifying service for pension if the provisions of Rule 13 and 49 of Rules are satisfied. The relevant provision of Rule 13 and 49 are as follows:
Rule 13: Commencement of qualifying service:
Subject to the provisions of these rules, qualifying service of a government servant shall commence from the date he take charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
Rule 49(2)(b): The amount of pension arrived at on the basis of the above slabs will be related to the maximum qualifying service of 33 years. For Government servants who, at the time of retirement, have rendered qualifying service of ten years or more but less than 33 years, the amount of their pension will be such proportion of the maximum admissible pension as the qualifying service rendered by them bears to the maximum qualifying service, of 33 years. A few illustrations are given in the Annexure to this Office Memorandum.
This Court in Baleshwar Dass and Others Vs. State of Uttar Pradesh and Others, interpreted the terms "holding of a post in a substantive capacity" in the following terms:
A person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temperate period or holds it on probation subject to confirmation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may will say that the post was held by the incumbent in a substantive capacity.
Although the combined reading the two Office Memorandums reproduced above support the Appellant's contention that he stood confirmed in the post of Assistant Meteorologist before he resigned the Central Government service but it is not necessary for us go into the effect of the two Memorandums. Examining the facts and circumstances of this case in the light of the by laid down by this Court in Baleshwar Das's case, the only-conclusion which on be drawn is that the Appellant was(sic)ing as Assistant Meteorologist in a substantive capacity.
We, therefore, hold that the Appellant had been appointed in a sustained capacity against a permanent post of consistent Meteorologist and is therefore untitled to prorata pension and other terms benefits in respect of the service rendered by him under the Central Govern-ment. We direct the Respondents to com-(sic) and pay the pension and other terminates benefits due to the Appellant under the (sic) and all other relevant orders/regulations within three months of the receipt (sic) this judgment. The Appellant shall be titled to 12% interest on the arrears of (sic)ment to which he becomes entitled as result of this judgment.
We allow the appeal in the above terms and set aside the judgment of the tribunal. The Appellant shall be en-(sic) to his costs which we quantify as (sic) 10,0007/-