S.P. Srivastava, J.
1. Heard the counsel for the appellant.
2. Perused the record.
3. Municipal Corporation, Gwalior, the appellant feels aggrieved by the judgment and order of learned Single Judge, whereunder, the respondent/ petitioner Ramsewak was found to be entitled to count his previous service rendered with the State Government to his service period, while working with the appellant Corporation, for the purpose of the calculation of the pensionary benefits.
4. It is not disputed that the petitioner/respondent had joined the Government service in the year 1960. The limits of the boundary of the Municipal Corporation, Gwalior was extended in the year 1981 including the area falling within the limits of the Panchayats adjoining the Gwalior city. The petitioner/respondent was employed as a Govt. servant in one of the Panchayats which were merged with the Corporation in the year 1981. The stand of the appellant is that although, the assets and liabilities of the concerned Panchayat had been transferred to the Municipal Corporation, the liability in regard to the payment of pension so far as respondent is concerned, had to be taken to be limited to the period of the service rendered by him in the Corporation.
5.The contention of the appellant is that the period of service spent by the respondent/petitioner with the State Govt. up to the year 1981, could not be taken to be the period of service rendered with the Corporation. Consequently, no liability in regard to the payment of pension, which might have been earned by the petitioner/respondent on the strength of the aforesaid period of service, could be fastened on the appellant Corporation.
6. In the aforesaid view of the matter, it has been urged that the learned Single Judge has erred in holding that the petitioner/respondent was entitled to get the entire period of his service rendered during the period 1960 to 1981 counted towards his service with the Corporation for the purpose of the determination of the pensionary liability.
7. It may be noticed that the learned Single Judge while coming to the conclusion that the petitioner/respondent was entitled to count his earlier service had drawn ample support for his view from the observations made by the Apex Court in the case of S.I. Roop Lala and Anr. v. Lt, Governor, through Chief Secretary, Delhi and Ors. [JT 1999 (9) SC 597]. The Apex Court in its aforesaid decision had held that though the concerned employee had been absorbed later, but his previous service should be counted. In that case, a Sub-Inspector, who had been appointed as such in the Border Security Force, had been transferred on deputation to Delhi Police and on being permanently absorbed, his previous service with the Border Security Force was directed to be counted.
8. In the present case, according to the appellant, himself all the assets and liabilities of the Panchayat, where the petitioner/respondent had been employed, had been transferred and were to vest in the Corporation. Section 3 of the M.P. Municipal Corporation Act, envisages statutory fiction in regardto the appointments of the nature as had been granted in favour of the petitioner/ respondent.
9. Learned counsel for the appellant had laid much stress on the provisions contained in Rule 34 of M.P. Civil Services (Pension) Rules, 1976, which is claimed to have been adopted by the Corporation. The aforesaid provision stipulate that:--
'A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Government in or under a body controlled or financed by the Govt. shall if such absorption is declared by the Govt. to be in the public interest, be deemed to have retired from service on retiring pension from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him.'
10. In order to attract the provisions of Rule 34 of M.P. Civil Services (Pension) Rules, 1976, it has to be established that the Government servant had been permitted to be absorbed in service or post in or under the Corporation, by the Government and further the concerned employee had given an option to elect or there was a provision for deemed election.
11. In the present case, in view of the statutory fiction, no such contingency could arise. Rule 34 of the Rules, therefore, cannot come to the rescue of the appellant for the release from liability in regard to the pensionary benefits, calculated on the basis of the period of service, counted from the date of his first appointment as the Government servant till the retirement from the service of the Corporation.
12. It is not disputed that the appellant had granted higher salary and the benefit available in the time scale of pay to the petitioner/respondent in which he stood taking into account his past service in question. There could be no justification therefore, for granting benefit of the past service for one purpose and refusing to count the past service for another purpose.
13. Taking into consideration the facts and circumstances, as brought on record, including those as noticed in the impugned order passed by learned Single Judge, no justifiable ground can be said to have been made out requiring any interference in the ultimate order.
This appeal consequently, fails and is dismissed in limine.
14. LPA dismissed.