The application of pension rules should be just and fair, taking into account the petitioner's service status and entitlement to pensionary benefits.

Hrishikesh Roy, J.

1. Heard Mr. U. Bhuyan, learned Counsel for the Petitioner. Also heard Mr. T. Islam, learned standing counsel for the Education Department. Mr. J. Handique, learned Counsel appears for the Pension and Public Grievances Department.

2. The Petitioner, who retired as Professor of Mathematics from the Assam Engineering College, Guwahati on 31.1.1997, is before this Court to challenge the decision of the Government to grant him proportionate pension benefit by invoking Rule 98 of the Assam Services (Pension) Rules, 1969 ('the Pension Rules') by considering his service in the Engineering College from 1.7.1963 to 31.7.1993 and ignoring the services rendered by him from 1.8.1993 to 31.1.1997 (date of superannuating) on lien basis as a Reader of the Gauhati University.

3. The Petitioner while serving as a Professor in the Engineering College, which is a Govt. post in the Higher Education Department, was granted lien initially for one year by the order dated 18.6.1993 issued by the Govt. to enable him to join as a Reader of Mathematics under Gauhati University. The Petitioner was released from the Engineering College w.e.f. 31.7.1993 to join under the University and the initial lien granted to him was extended by two extension orders dated 16.3.1995 and 13.12.1995, granting him lien up to 31.7.1996.

4. While the Petitioner was serving on deputation basis in the Gauhati University, he made a request for permission to return to the post of Professor in the Engineering College and although the said application was forwarded to the Govt. by the Director of Technical Education on 10.12.1993, no decision on the request of repatriation was taken and instead the two lien extension orders referred to above were passed.

The Petitioner also made a request to go on voluntary retirement prior to reaching the age of superannuating but the said request of the Petitioner also went unheeded.

5. Eventually the Petitioner reached the age of superannuate on as a Govt. servant on 31.1.1997 while serving in the Gauhati University on lien basis from 1.8.1993 to 31.1.1997. It is relevant to note that when the Petitioner joined the Gauhati University he did not opt for personable service nor for provident fund benefit and accordingly the services rendered by the Petitioner in the Gauhati University from 1.8.1993 to 31.1.1997 was purely on deputation basis.

6. At the time of computation of the retirement benefits payable to the Petitioner, the Education Department by communication dated 8.11.2001 (Annexure-'G') granted only pro rata pension benefit to the Petitioner by treating his case to be covered under Rule 98 of the Pension Rules and it is not in dispute, that if the said Rule 98 is applied the Petitioner stands to lose substantial amount of retirement benefits and his service would not be considered eligible for family Pension benefit.

7. A reading of Rule 98 of the Pension Rules indicates that proportionate pension under Rule 98 is to be computed if a Govt. servant resigns his post and such resignation is accepted, for enabling the Govt. servant to continue in employment permanently under a body corporate owned and controlled by the Govt.

8. Three conditions, therefore, are required to be fulfilled in order to attract the provisions of Rule 98 of the Pension Rules:

(i) there has to be a resignation by a Govt. servant;

(ii) there has to be acceptance of such resignation;

(iii) there has to be permanent employment under a body corporate own and controlled by the Govt.

9. In the instant case, the Petitioner has not resigned from his Govt. post of Professor of the Engineering College. Thus, the question of acceptance of his resignation from the said post does not arise. The Petitioner also was not employed under a body corporate owned and controlled by the Govt. as he was serving in the Gauhati University, which cannot be described as such an entity. Even assuming that the Gauhati University can be described as a body corporate owned and control