DIRECTOR GENERAL, DOORDARSHAN PRASAR BHARTI CORPORATION OF INDIA & ANR. versus SMT. MAGI H DESAI on 24 March 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 17.02.2022 passed by the High Court of Gujarat atAhmedabad in R/Special Civil Application No. 14592/2021, by whichthe Division Bench of the High Court has allowed the said writ petitionpreferred by the respondent herein and has directed that the services ofthe respondent herein – original writ petitioner rendered as contractualshall be liable to be counted as temporary service for the purpose ofcalculating the qualifying service for pensionary/retiral benefits, theDirector General, Doordarshan Prasar Bharti Corporation of India andanother have preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder:

That the respondent herein – original applicant was engaged as aGeneral Assistant on contract/casual basis in the year 1985. The servicesof the respondent as General Assistant on contract/casual basis werethereafter extended from time to time, however, with break of few days.The original applicant thereafter filed Original Application No. 32/1987before the Central Administrative Tribunal, Ahmedabad Bench,Ahmedabad (for short, ‘the Tribunal’). The said OA was partly allowedvide order dated 30.08.1990 with a direction to the department – appellantsherein to pay her the same salary and allowances that were being paidto other regular General Assistants/Clerks from October, 1990 witharrears.

2.1 That thereafter, pursuant to the decision of the Principal Benchof the Central Administrative Tribunal, New Delhi to regularise casualemployees by way of framing of scheme, the services of the originalapplicant came to be regularised as Lower Division Clerk with effectfrom 31.03.1995 pursuant to the Scheme of Regularisation of CasualStaff Artists of Doordarshan, 1992/94. The original application was giventhe regular scale of Lower Division Clerk from the date of regularisationon the said post.

2.2 That thereafter the original applicant approached the Tribunalseeking consideration of her past service. The said OA came to bedismissed, which was the subject matter of writ petition before the HighCourt. The High Court was pleased to permit the original applicant to A

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Asubmit representation to the department. That thereafter the respondent– original applicant submitted representation dated 11.4.2014. Vide orderdated 18.09.2014, the department rejected the representation of therespondent for giving her the benefit of casual/contractual servicesrendered by her from 1985 till 31.03.1995 for calculating the pensionary/service benefits.B

2.3 That thereafter, the original applicant filed another OA No.446/2014 before the Tribunal. By a detailed judgment and order dated08.09.2021, the Tribunal dismissed the said OA by observing that theservices rendered by the respondent as contractual/casual cannot betreated and/or considered as temporary service and therefore the servicesCrendered as such shall not be counted for the purpose of retiral benefits/service benefits. The judgment and order passed by the Tribunaldismissing the OA was the subject matter of writ petition before theHigh Court. By the impugned judgment and order, the Division Bench ofthe High Court has observed that the services in temporary capacity willDinclude the classes of temporary servants such as casual or evencontractual. By observing so and relying upon Rule 13 of the Rulesapplicable, the High Court has allowed the writ petition and has directedthat the services of the respondent – the writ petitioner rendered ascontractual/casual shall be liable to be counted as temporary service forthe purposes of calculating qualifying service in accordance with theErules and accordingly she shall be paid the pension on her retirement.The impugned judgment and order passed by the High Court is the subjectmatter of the present appeal.

3. Shri Rajeev Sharma, learned Senior Advocate appearing onbehalf of the appellants has vehemently submitted that admittedly sinceF1985 till her services were regularised on 31.03.1995, the respondentrendered the services as a casual/contractual employee. It is submittedthat the services rendered as a casual/contractual employee cannot besaid to be rendering services as a temporary employee and/or renderinga temporary service. It is submitted that therefore proviso to Rule 13 ofGthe Central Civil Services (Pension) Rules, 1972 (hereinafter referred toas the ’1972 Rules’) shall not be applicable and therefore the servicesrendered as such as casual/contractual employee cannot be counted forthe purposes of pensionary benefits/service benefits.

3.1 It is submitted that the High Court has therefore misinterpretedHRule 13 of the 1972 rules and has materially erred in observing and holding that the services in temporary capacity will include the classesof temporary service such as casual or even contractual.

3.2 Making above submissions, it is prayed to allow the presentappeal.

4. The present appeal is vehemently opposed by Shri Hardik Vora,learned counsel appearing on behalf of the respondent. It is submittedthat as such the respondent is claiming 50% of the services rendered ascasual or contractual. It is submitted that in other departments, theschemes provide for 50% of the services rendered as casual be treatedas services rendered as temporary service and therefore the same is tobe counted for the purposes of pensionary benefits/service benefits.However, learned counsel appearing on behalf of the respondent is notin a position to point out any statutory provision under which therespondent is claiming 50% services rendered as a casual/contractualfor the purposes of pensionary benefits/service benefits. However, it issubmitted that as in the other departments, such a scheme is there andtherefore the respondent is claiming the same benefit.

5. We have heard learned counsel for the respective parties atlength.

5. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted and it is an admitted positionthat for the period between 1985 till 31.03.1995 the respondent servedas a casual/contractual employee and her services came to be regularisedas per the Scheme w.e.f. 31.03.1995. As such, under the Scheme ofRegularisation, there is no mention that the casual services shall becounted towards service benefits/pensionary benefits. Even as per theclarification issued by the DOPT in the year 2009, it was clarified thatsuch appointee is not entitled to claim any benefit out of the servicesrendered by him/her on contractual basis before he/she was appointedon regular basis on a government post.

6. The respondent is governed by the Central Civil Services(Pension) Rules, 1972. Rules 13 & 14 of the 1972 Rules, which arerelevant for deciding the controversy in the present case, read as under:

“13. Commencement of qualifying service - Subject to theprovisions of these rules, qualifying service of a Governmentservant shall commence from the date he takes charge of thepost to which he is first appointed either substantively or in anofficiating or temporary capacity :

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Provided that officiating or temporary service is followedwithout interruption by substantive appointment in the same oranother service or post :

Provided further that –

(a) in the case of a Government servant in a Group ‘D’…….(b) in the case of a Government servant not covered by clause(a),…

14. Conditions subject to which service qualifies:

(1) The service of a Government servant shall not qualify,unless his duties and pay are regulated by the Government, orunder conditions determined by the Government.

(2) For the purposes of sub-rule (1), the expression“Service” means service under the Government and paid by thatGovernment from the Consolidated Fund of India or a Local Fundadministered by that Government but does not include service ina non-pensionable establishment unless such service is treated asqualifying service by that Government.

(3) In the case of a Government servant belonging to aState Government, who is permanently transferred to a serviceor post to which these rules apply, the continuous service renderedunder the State Government in an officiating or temporarycapacity, if any, followed without interruption by substantiveappointment, or the continuous service rendered under thatGovernment in an officiating or temporary capacity, as the casemay be, shall qualify :

Provided that nothing contained in this sub-rule shall applyto any such Government servant who is appointed otherwise thanby deputation to a service or post to which these rules apply.”

7. Rule 13 of the 1972 Rules provides for commencement ofqualifying service. As per Rule 13, qualifying service of a Governmentservant shall commence from the date he takes charge of the post towhich he is first appointed either substantively or in an officiating ortemporary capacity. It further provides that such officiating or temporaryservice is followed without interruption by substantive appointment inthe same or another service or post. Therefore, the services renderedon a substantive post or services rendered as officiating or temporaryservice shall be treated as qualifying service. Service rendered as casual/

contractual cannot be said to be officiating or temporary service. Eventhe services rendered as temporary service can be considered asqualifying service provided that the officiating or temporary service isfollowed without interruption by substantive appointment in the same oranother service or post. Service rendered as casual/contractual cannotbe said to be service rendered on a substantive appointment.

8. Under the circumstances and on a fair reading and interpretationof Rule 13 of the 1972 Rules, the High Court has committed a veryserious error in observing that the services in temporary capacity willinclude the classes of temporary service such as casual or evencontractual. The High Court has materially erred in observing that thecontractual service would be qualified as service in a temporary capacity.The question is not whether the services rendered by a contractualemployee would be qualified as service in a temporary capacity. Thequestion is, whether, in fact, such contractual employee rendered theservices as temporary or not.

9. Now so far as the submission on behalf of the respondent thatin other departments under the scheme the employees of suchdepartments are entitled to their services rendered as casual/contractualcounted for qualifying service for pensionary/service benefits isconcerned, merely because some other departments might have suchschemes, the respondent shall not be entitled to the same benefit inabsence of any scheme in the appellants’ department/department in whichthe respondent rendered her services. The appellant – DoordarshanPrasar Bharti Corporation of India is an autonomous independentdepartment/body. As observed hereinabove, neither the rule nor theregularisation scheme provide that services rendered as casual/contractual shall be treated as temporary service and/or the same shallbe counted for the purposes of pensionary/service benefits.

10. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court is unsustainableand the same deserves to be quashed and set aside and is accordinglyquashed and set aside. The judgment and order passed by the Tribunaldismissing the Original Application is hereby restored. Present appeal isaccordingly allowed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

Appeal allowed.

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