2019 Supreme(SC) 291

SUPREME COURT OF INDIA
Uday Umesh Lalit, Indu Malhotra, JJ.
P. BANDOPADHYA AND OTHERS – Appellant
Versus
UNION OF INDIA AND OTHERS – Respondent
Civil Appeal No. 3149 of 2019 [Arising Out of Special Leave Petition (Civil) No. 10663 of 2016]
Decided on : 15-03-2019

IMPORTANT POINTS
(1) To receive pensionary benefits from the Government, a Government servant is required to put in a minimum qualifying service.
(2) Decision of Constitution Bench in context of Writ Petition filed under Article 32, would apply with greater force to bar a Writ Petition filed under Article 226, by operation of principle of res judicata.

Headnote:(A) Central Civil Services (Pension) Rules, 1972 – Rules 37 and 49 – Government pension – Entitlement – To receive pensionary benefits from the Government, a Government servant is required to put in a minimum qualifying service as defined by Rule 3(q) of CCS (Pension) Rules, 1972 – Qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of Pensions and Gratuities admissible under CCS (Pension) Rules, 1972 – Appellants opted to retain pensionary benefits under rules of Central Government by exercising their option in pursuance of Staff Notice – Appellants admittedly had less than 10 years of qualifying service – They had voluntarily exercised their option of getting absorbed in regular service of VSNL – As a consequence, this resulted in severance of their previous service with Central Government, and they were deemed to have retired from Government service on January 2, 1990 i.e. date of their absorption with VSNL in accordance with Rule 37(1) of Central Civil Services (Pension) Rules, 1972 – Appellants having taken a conscious decision to opt for absorption in VSNL, knowing fully well that they had not completed 10 years of qualifying service with Central Government, were not entitled to receive pensionary benefits as per Rule 49 of CCS (Pension) Rules, 1972 – Appellants would be entitled to retiral benefits under VSNL – After exercising option to be absorbed in VSNL, Appellants are now estopped from seeking pensionary benefits from Central Government – Appellants were not entitled to receive pensionary benefits either under CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of Office Memorandum – Impugned Judgment and Order passed by Bombay High Court in Writ Petition affirmed. (Paras 7.3, 7.4, 8.1, 8.2, 8.3, 8.8 and 9)

       (B) Constitution of India – Articles 32 and 226 – Civil Procedure Code, 1908 – Section 11 – Writ petition – Bar of Res Judicata – Decision of Constitution Bench in context of Writ Petition filed under Article 32, would apply with greater force to bar a Writ Petition filed under Article 226, by operation of principle of res judicata – Binding character of judgments of courts of competent jurisdiction is in essence a part of rule of law on which administration of justice is founded. (Para 8.7)

       Facts of Case:

       Appellants were erstwhile employees in Overseas Communications Service [“OCS”], a Department of Government of India. On April 1, 1986 the OCS was converted into a Government Company known as Videsh Sanchar Nigam Limited [“VSNL”]. Initially, all employees of erstwhile OCS were transferred en masse to Respondent No. 4– VSNL (now known as Tata Communications Limited), where they worked on deputation from April 1, 1986 to January 1,1990. Appellants voluntarily exercised the option to be absorbed into the regular service of VSNL with effect from January 2, 1990. Appellants were informed by Respondent No. 4 – VSNL that they would not be eligible to receive Government Pension. They would, however, be eligible to receive benefits under Clause (c) of the Office Memorandum i.e. an amount equal to the Provident Fund contribution for the period of their service under the Government up to the date of permanent absorption in the Public Sector Undertaking/Autonomous Body with 6% Simple Interest as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body. Issue which arises for consideration in present Civil Appeal is whether the Bombay High Court was justified in holding that case of Appellants was covered by earlier decision in S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79], and whether they are entitled to receive pensionary benefits under Central Government.

       Findings of Court:

       Case of Appellants being Government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to Provident Fund contribution for the period of their service under Government, upto the date of their permanent absorption along with Simple Interest at 6% per annum as opening balance in their CPF account with Public Sector Undertaking/Autonomous Body.

       Result : Appeal dismissed.