Judgment:
DR. K.B.S. Rajan, Judicial Member.
1. The case of the applicants in this OA is as under:-
The applicants were regularly selected by the Railway Recruitment Board, Chennai as Junior Draftsmen (Present designation Junior Engineer/Designs) in the Electrical Wing of the Integral Coach Factory, Chennai, Ministry of Railways, in 1987 and 1990 respectively. In response to notification issued by the Kerala Public Service Commission, they applied for the post of Sub Engineer in the Kerala State Electricity Board through proper channel (Annexure A2). They passed the written test and attended the interview. Upon selection as Sub Engineers in KSEB, the applicants submitted technical resignation from the Integral Coach Factory, Chennai. The resignation was accepted and they were relieved on 14.12.1999 and 18.07.2001 respectively (Annexures A3 and A4). The applicants thereafter joined KSEB on 20.12.1999 and 19.07.2001 respectively and ever since they have been continuing as such. According to the applicants, they have more than 10 years of service in the Railways and, therefore, they are eligible to receive pro-rata pension from the Railways or in the alternative, the railway service is to be counted along with the service rendered in KSEB in terms of Rule 53 of Railway Services (Pension) Rules, 1993. If the services rendered in the Railways were to be counted along with the service rendered in KSEB, the Railway Administration is bound to remit the pro-rate pension liability to KSEB. Representations were submitted in this regard. Vide communication at Annexure A5, KSEB requested Integral Coach factory to remit pro-rate pension liability and also to forward the pay drawn details. The request was, however, rejected. The ground of rejection is that in terms of DoPT, the liability for pension including gratuity should be borne in full by Central/State Government to which the government servant permanently belonged at the time of retirement and that the sharing of proportionate pension liability had been dispensed with. It is in this background, the applicants have filed this OA seeking the following reliefs:-
a) Call for the records leading to issuance of A1 and quash the same.
b) Declare that the respondents 1 and 2 are liable to remit the pro rate pension liability to KSEB for the service rendered from 11.7.87 to 19.12.99 as regards the first applicant and from 24.10.90 to 18.7.2001 as regard s the 2nd applicant, under the 3rd respondent and direct the respondents accordingly.
c) Direct the respondents 1 and 2 to ensure remittance of the pro- rata pension liability for the service from 11.7.87 to 19.12.99 as regards the first applicant and from 24.10.90 to 18.7.2001 as regards the second applicant to the 3rd respondent KSEB so as to enable the 3rd respondent to reckon the applicant's service for he period from 11.7.87 to 19.12.1999 and 24.10.90 to 18.7.2001 respectively, for the purpose of pension and other service benefits in the KSEB.
d) In the alternative, direct the respondents 1 and 2 to release the pro-rata pension to the applicants under the respondents 1and2 in accordance with rule 53 of the Railway Pension Rules with all consequential benefits arising there from.
e) Award costs of and incidental to this application.
f) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. Respondents have contested the OA. According to them, in terms of Para 1406 of IREM Vol, the applications of Railway employees for posts under State Government and their Undertakings etc may be forwarded subject to the provisions of Para 1404 and instructions issued from time to time. In the case of Railway servants who join the State Government/Public Sector Undertakings etc on their own volition in response to press advertisements, the leave salary and pensionary contribution should be paid either by the Undertaking/Organization concerned or by the concerned Railway servant himself. At this distant time, the original notings and correspondents made at the time of relieving the applicants are not available. The respondents have further contended that in terms of Department of pension and Pensioners' Welfare O.M.No.28-10-95/PandPW (B) dated 25.10.1996, reiterated in Railway Board's letter dated 12.2.97, Â the liability of pension including gratuity should be borne in full by the Central/State Government to which the Government servant permanent belongs at the time of retirement and the sharing of proportionate pension liability has been dispensed with.
3. Counsel for the applicants submitted that the case of the applicants is covered by Rule 53 of the Railway Servants (Pension) Rules. The facts are not disputed by the respondents and admittedly the applicants' applications were duly forwarded through Railways only to the Kerala State Electricity Board and subsequent actions were also done with approval only. The Tribunal in the case K.K.Shaji in OA No.781/2010 and in the case of K.K.Gopalan in OA No.1018/10, has held that in such cases, the Railways are liable to remit the pro-rata pension contribution for the services rendered by the applicants in the Railways. Order dated 13th October, 2011 in the aforesaid OA refers. As regards the alternate claim of payment of monthly pension for the service rendered, this Tribunal in the case of N.Sankar in OA No.617/07 decided on 4.12.08 held that if for the services rendered by the applicant therein he is entitled to pension and other terminal benefits, the same has to be paid.
4. Counsel for the respondents submitted that the applicants were relieved of their duties as early as 1999-2001 and they chose to approach the respondents for pro-rata pension to be remitted or payment of pension for the services rendered as late as 2001 when no records had been retained. Attempts made to obtain the records from KSEB to which records had been sent were not successful. In addition, the decision by the DoPT vide Annexure R(n) dated 25th October, 1996, clearly holds that the entire pension liability will be borne on the record of KSEB (under State Govt of Kerala). The entire liability would be on them only.
5. Arguments were heard and documents perused.
6. The facts are not in dispute. Rule 53 of Railway (Pension) Rules contemplates service to be taken into account, which includes service in the Railways for the purpose of pension. Provision for pro-rata pension is also contained therein vide Rule 53 (3). In so far as decisions in OA No.781/10 and OA No.101/10 relied upon by the counsel for the applicants are concerned, the order which refers to certain other decisions, does not refers to Annexure R(n) dated 25th October 1996, which reads as under:-
"Sub: Mobility of Personnel between Central Government Deptts and State Governments-Counting of service for pension.
The undersigned is directed to refer to this Department's letter No.3 (20) /Pen(A)/79 dated 31.3.1982 and Ministry of Finance O.M.No.3 (38)E.V(A)/74 dated 30.6.1976 on the subject mentioned above and state that these orders lay down the procedure for counting of the service rendered by a Central Government employee in State Governments. This reciprocal arrangement is, however, not applicable in the case of certain specified State Governments.
A doubt has been expressed in the above context about the applicability of the orders contained in Ministry of Finance O.M. No. 14(5)/86/TA/1029 dated 9.10.1986 which dispenses with the sharing of pension and leave salary liability between Central and State Governments. The matter has been considered in consultation with the Ministry of Finance (Department of Expenditure/Controller General of Accounts). It is clarified that according to the provisions of Part A (Introductory of appendix 5 to the Government Accounting Rules 1990), the liability for pension including gratuity should be borne in full by the Central/State Governments to which the government servant permanently belongs at the time of retirement. These provisions do not exempt any State Government from the applicability of the reciprocal arrangement which dispenses with sharing of pension liability. However, in the matter of processing proposals for counting of service rendered y an employee in the Government, the procedure laid down in O.M. Dated 31.3.1982 and 30.6.1976 would continue to be followed.
Ministry of Defence etc are requested to clarify this position to all concerned authorities under their administrative control."
7. By the aforesaid letter, the provision in respect of pro-rata pension to be remitted to the other department has been dispensed with. Since this order is much earlier than the move of the applicant to KSEB, the Railways cannot be insisted to make available pro-rata pension to KSEB. As such it is only the alternative prayer that has been considered.
8. In the case of Sankar in OA No.617/07, wherein direction was issued for payment of pro-rata pension to the applicant therein, it has been stated by the counsel for the applicant that the same had been complied with and the applicant therein is in receipt of pro-rata pension from the Railways. Provision exists in Rule 53 of the Railway Servants (Pension) Rules for payment of such pro-rata pension vide Rule 53.
9. It may also be mentioned that liaisoning with the respondent as KSEB and finally settling the issue for pro-rata pension etc would be a time consuming process as, according to the Railways, records were not available. Under these circumstances, the only option left is for a direction to the respondents to consider the case of the applicants for payment of pro-rata pension. Counsel for the applicants has no reservation in this regard as the same is mentioned as alternate prayer.
10. In view of the above, this OA is disposed of with a direction to the respondents to verify the service particulars of the applicants (if need be, by retrieving the service book from KSEB to which the records are stated to have been sent). If the applicants are entitled to receive pension, as on the date their technical resignations are accepted, pension may be released to them. Arrears of pension, however, shall be restricted to three years anterior to the date of filing of the OA, namely effective from October, 2009 only. This order shall be complied with within a period of six months from the date of communication of this order. No costs.