S S NAYAR Vs. CHAIRMAN ONGC

JUDGEMENT

(1.) Petitioner in this writ petition retired from service of ONGC/ respondent No. 1 on 31.12.1987 on reaching the age of superannuation. Petitioner joined as Assistant Locust Technical Officer in the Directorate of Plant Protection, Quarantine and Storage on 12.4.1951. This was a department under Central Government. Petitioner changed his cadre of service from technical to non-technical on 24.5.1952 and was absorbed to the same department as temporary Upper Division Clerk in the same pay sale. On 18.7.1956, he joined Directorate of Oil and Natural Gas, a Government service under Ministry of Natural Resources and Scientific Research, as Senior Assistant. Petitioner claims that his joining this department was treated as transfer from the previous department, and therefore, petitioner was considered to have been transferred from one Government department to another and as he had more than 3 years service in the previous department, he acquired quasi-permanent status in the previous department which also he carried in accordance with the prevalent rules. Be as it may, in the Directorate of Oil and Natural Gas, petitioner was promoted as Head Assistant w.e.f. 1.3.1957 and as Superintendent w.e.f. 5.11.1959. On 15.10.1959, Directorate of Oil and Natural Gas was converted into a statutory body when ONGC Act, 1959 was passed. As per Section 13(i) of the said Act, persons employed in ONGC before this conversion were to be governed by the same tenure and the same remuneration and upon the same terms and conditions as if the Commission had not been established. Petitioner gave declaration on 1.3.1960 to serve the ONGC for foreign service terms. In May, 1960, Contributory Provident was introduced in ONGC. Petitioner elected to be covered by the said CPF scheme and w.e.f. 1.12.1963 he started contributing to the CPF scheme which date was subsequently changed to 1.12.1960 on his representations. He was the member of CPF till his retirement. However after his retirement, petitioner made representations to the respondents for consideration of his past service from 12.4.1951 when he had joined as Technical Officer in the Directorate of Plant Protection and requested for releasing of pensionary benefits by calculating the service right from 12.4.1951 to 31.12.1987 or else release employers' contribution towards the CPF alongwith accumulated interest thereon subject to adjustment of the payment already made to the petitioner. However his request was rejected by letters dated 4.6.1990 and 7.1.1993. He accordingly filed the present writ petition seeking quashing of the decisions contained in communications dated 4.6.1990 and 7.1.1993 denying the grant of pensionary benefits for the past service rendered by him.

(2.) From the aforesaid, it is clear that the petitioner as on the date of his retirement was a member of CPF scheme that too w.e.f. 1.12.1960. However he wants to avail pensionary benefits for which purpose he wants that his entire service including in the earlier department from 12.4.1951 be included. In the alternative, his submission is that he should be granted employers' contribution towards CPF w.e.f. 12.4.1951 to 30.11.1960 as well alongwith accumulated interest thereon. Thus in nutshell, the twin reliefs claimed by the petitioner are as under :

(3.) It is stated by the petitioner in his writ petition that notwithstanding the provisions as contemplated in Clause 13(1) of the Act as explained in para 2 above, and prior to introduction of the CPF scheme for the Commission's employees, during the meeting held in May, 1960 under the Chairmanship of Sh. K.D. Malviya, Ex. officio Chairman ONGC, it was unanimously decided that while introducing the CPF scheme in the Commission having been converted into autonomous body, a reference will be made to the Government of India, recommending that the employees who had joined the Commission prior to 15.10.1959, be permitted to elect either CPF scheme or pensionary benefits as applicable to Central Government employees. However, no such reference appears to have been made to the Government of India, and the CPF scheme for the Commission's employees was made applicable somewhere in June, 1961, but the petitioner was not admitted to the said CPF scheme since its commencement and he continued contributing towards GPF scheme through me ONGC since he was considered as Government servant on foreign service. It was submitted that meanwhile, the Government of India with a view to set at rest the question regarding settlement of pensionary terms in respect of the Government employees who are transferred to an autonomous organisation consequent on the conversion of a Government Department into such a body, issued OM dated 5.11.1964 to the effect that "permanent Government servant so transferred will be given the option to either retain the pensionary benefits available to them under the Government rules or be governed by the rules of the autonomous body. In case of exercising the former option, they will be entitled to the benefits of the liberalisation in pension rules introduced on Government side subsequent to their transfer. The aforesaid right of option will also be available to the quasi-permanent and temporary employees after they have been confirmed in the autonomous body". It was also submitted that the import of the aforesaid Government OM dated 5.11.1964 was primarily to ensure that Government servants on transfer to the autonomous bodies are not put to any disadvantage but could avail the better options out of the two available to them in their overall interests. It was further submitted that since the petitioner could not be asked for the option to either retain the pensionary benefit under Government rules or be governed by the CPF scheme as he was not confirmed despite being on service of the organisation from 18.7.1956 (though his services were considered w.e.f. 12.4.1951) whereas 20 employees of the Geological Survey of India were given the liberty to give option in terms of the Section 13(1) of the Act were, therefore, granted pensionary benefits in terms of the CCS Rules as admitted in the counter affidavit. It was also submitted that since the petitioner was finding it difficult to contribute towards the General Provident Scheme as admissible to Central Government employees through the respondent commission and after receipt of the communication pertaining to the issue of Government of India OM dated 5.11.1964 whereby the petitioner was required to be given the liberty to give such aforesaid option for retention of the pensionary benefits in terms of the CCS rules or otherwise of the scheme intduced by respondent Commission only after his confirmation, the petitioner in view of the aforesaid OM and in the hope that he would be asked about his option after his confirmation, was constrained to approach the Authorities for admitting him to the CPF scheme vide application dated 31.8.1965 pending his confirmation. However, in response to his said application, petitioner was directed to severe his relation with his parent department. The correspondence exchanged with the parent department through proper channel is annexed with the petition. Thereafter the petitioner was admitted to the CPF scheme initially w.e.f. 1.12.1963 vide respondent letter dated 3.3.1966 which was subsequently changed to be made effective w.e.f. 1.12.1960 vide their letter dated 17.3.1967. It was submitted that the petitioner, on coming to know that Shri A.P. Nagar, Superintendent, junior to him was confirmed, approached the concerned Authority to also confirm him vide his representation dated 2.12.1967, so that he could be asked to give his option to either retain pensionary benefit under the CCS Rules or be governed by the rules of the Commission in terms of the spirit of Government letter dated 5.11.1964. In response to the said representation, the petitioner was informed that he would only be considered for permanency in the cadre of Stores and Purchase Officer as and when the permanent post in the said cadre is available vide their UO note dated 26.12.1967. Thereafter, it is submitted, that it was the bounden responsibility of the respondents to have confirmed the petitioner and then sought for his option in accordance with the provision contemplated in Section 13(l)(c) read with 13(l)(a) of the ONGC Act and Government of India letter dated 5.11.1964. However the petitioner was neither confirmed in the said post of Stores and Purchase Officer nor any option was sought from him as stated above despite the fact that the petitioner served in the said cadre of Store & Purchase Officer from 11.11.1963 to 31.12.1987 and the strength of the Commission had increased manifolds and that all the records of his service alongwith appointments held were/are held in the power and possession of the respondent Commission. After highlighting the aforesaid factual background, the learned Counsel for the petitioner submitted that in view of the provisions of Section 13(1) of the Act as well as decision of the respondents in the meeting held in May, 1960 commencement of CPF scheme, the petitioner is entitled to pension as he joined ONGC, as quasi-permanent Government employee and, therefore, he continued to be governed by the same conditions by which he was governed in Directorate of Plant Protection, Quarantine & Storage and in that department he was entitled to pension. It was submitted that the petitioner was considered to be on transfer from the Central Government department, i.e. Directorate of Plant Protection Quarantine & Storage, Ministry of Food & Agriculture, where he had served from 12.4.1951 to 17.7.1956 to another Central Government department, i.e. O.N.G. Directorate, Ministry of Natural Resources and Scientific Research where he joined on 18.7.1956 without any break in service whatsoever and that too in the same scale as was being drawn by him as U.D.C. and not on the higher post as alleged by the respondents though, of course, the designation was that of Senior Assistant and as such carried his quasi-permanent status w.e.f. 1.7.1955, which in fact was communicated to him while he was serving in ONGC at the relevant point of time in April, 1958. It was also submitted that ONGC (Terms & Conditions of Appointment & Service) Regulations, 1975, could not overwrite the statutory provision contemplated in Section 13(1) of the ONGC Act, 1959. Even otherwise, it was further submitted, proviso to Regulations 3(ii), (a), (b) & (c) protect the interest of the petitioner and similarly situated persons who have been protected by Section 13(1)(c) of the ONGC Act. It was further submitted that the respondents were duty bound to give the petitioner benefit of pension even when there being a request from the petitioner as petitioner was entitled to the same under the law / relevant rules. In support of his submission, petitioner relied upon the judgment of Madras High Court in the case of M. Viswanathan v. Government of Tamilnadu & Ors; reported in 1989 Lab. I.C. 1567, as well as the judgment of this Corrt in the case of Rajinder Pal Singh Lamba & Ors. v. The Administrator of Delhi & Ors., reported in 1999 (48) DRJ 186. The Counsel also submitted that when the petitioner had right to receive the pension, his petition could not be denied the same on the ground of delay and in support of this submission, he referred to the following judgments: