REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3149 OF 2019

[Arising out of Special Leave Petition (Civil) No. 10663 of 2016]

P. Bandopadhya & Ors.           …Appellants

Versus

Union of India & Ors.              …Respondents

JUDGMENT    

INDU MALHOTRA, J.

Leave granted.

1. The present Civil Appeal arises out of S.L.P. (C) No. 4652 of 2018

wherein the impugned Judgment and  Order dated January 13,

2016 passed by the Bombay High Court in Writ Petition No. 2704 of

2005 has been challenged.

2. The facts relevant for the present Civil Appeal, are briefly set out

below:

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2.1. The Appellants were erstwhile employees in the Overseas

Communications Service [“OCS”], a Department of the

Government of India. On April 1, 1986 the OCS was converted

into a Government Company known as the Videsh Sanchar

Nigam Limited [“VSNL”]. Initially, all employees of the

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.

2.2. On  July 5, 1989 the  Department of Pension and  Pension

Welfare of the Government of India issued Office

Memorandum No. 4/18/87­P & P.W. (D) [“Office

Memorandum”] specifying the terms and conditions

governing the pensionary benefits of employees who were

transferred  en  masse  on the conversion of a  Government

Department into a Central Public Sector Undertaking or

Autonomous Body.

The relevant extract of  the Office Memorandum is set

out hereinbelow for ready reference:

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“…The following terms and conditions will  be applicable in the case of en masse transfer of employees:

(a) The  permanent Government servants shall have an option to retain the pensionary benefit available to them under the Government rules or be governed by the rules of the Public Sector Undertaking/Autonomous Body. This option shall also be available to the quasi permanent and temporary employees after they have been confirmed in the Public Sector Undertaking/Autonomous Body.

(b) The Government servants who opt to be governed by the pensionary benefits available under the Government, shall at the time of their retirement, be entitled to pension, etc., in accordance with the Central Government rules in force at that time.

(c) The  permanent Government servants with less than 10 years’ service, quasi permanent employees and temporary employees who opt for the rules of the Public Sector Undertaking/Autonomous Body shall be entitled to an amount equal to Provident Fund contribution for the period of  their service under the Government up to the date of permanent  absorption in the  PSU/Autonomous Body with simple interest at 6% per annum as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body…”

(emphasis supplied)

2.3. In pursuance of the Office Memorandum, Notice dated

December 11, 1989 was issued by Respondent No. 4 – VSNL

giving the erstwhile employees of OCS the option to either be

absorbed in the regular service of VSNL; or, be transferred to

the Surplus Staff Cell of the Central Government for

employment against possible vacancies available in other

Government offices.

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The  Appellants voluntarily exercised the  option to  be

absorbed  into the regular  service  of  VSNL with  effect from

January 2, 1990.

2.4. Thereafter, a Staff Notice dated February 21, 1990 was issued

by  Respondent  No. 4 –  VSNL to its employees,  who  were

earlier working in OCS. The employees were called upon to

exercise their option in terms of Clause (a) of the Office

Memorandum,  i.e.  either to retain the pensionary benefits

available under the Government of India at the time of

retirement as per the applicable Central Government rules in

force, or opt to be governed by the rules of Respondent No. 4 –

VSNL.

The format in which the option was to be indicated was

enclosed with the Staff Notice, along with a document titled

“Clarificatory Information to Facilitate Exercise of Option”. As

per paragraph I (1) (ii) of the clarificatory document, the

eligibility of employees who chose to retain pensionary

benefits  under the  Central  Government  was conditional  on

putting in a minimum of ten years of qualifying service. The

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relevant portion of Paragraph I (1) is reproduced hereinbelow

for ready reference:

“I.  Exercise of option in favour of retention  of pensionary benefit under Central Government rules.

(1) This option is open to every employee  whose services have been transferred from  Overseas Communications Service to Videsh Sanchar Nigam Limited and who has been permanently absorbed in the Videsh Sanchar Nigam Ltd., irrespective of service rendered in the Overseas Communications Service. Your eligibility for benefits under the Pension Rules will however be conditional to :­…

…  (ii)  Putting in a  minimum  of ten years of qualifying service. (9 years 9 months and above will be reckoned as 10 years)…”

(emphasis supplied)

2.5. The Appellants opted to retain pensionary benefits under the

rules of the Central Government by exercising their option in

pursuance of the Staff Notice dated February 21, 2009.

2.6. Respondent No. 4 – VSNL  vide  Letters dated May 22, 2003

and June 29, 2004, sought a clarification from Respondent

No. 3 – Ministry of Communications and Information

Technology, Department of Telecommunications [“DOT”] as to

whether the Appellants – P. Bandhopadhya, I.P. Singh and G.

Palaniappan could retain the pensionary benefits in spite of

having less than 10 years of service as on January 2, 1990.

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2.7. In response, the  DOT  vide  Letter  dated  October  13, 2004

requested VSNL to settle the cases of the Appellants in

accordance with Clause (b) of the Office Memorandum.

2.8. Accordingly, by Letter dated November 30, 2004, Respondent

No. 4 – VSNL informed Respondent No.  2 – Department of

Pension and Pension Welfare, Government of India to settle

the cases of the Appellants in accordance with Clause (b) of

the Office Memorandum.  

2.9. In supersession  of the  Letter  dated  October  13,  2004, the

Department of Pension and Pension Welfare, Government of

India, vide Letter dated March 24, 2005 informed Respondent

No. 4 – VSNL that the payment of Pension to the Appellants

would be settled  in terms of the Office Memorandum. This

was re­confirmed  by  Respondent  No. 3 –  DOT  vide  Letter

dated May 30, 2005.

2.10. Accordingly, Respondent No. 2 – Department of Pension and

Pension Welfare, Government of India informed the Appellants

that their  pension  would  be settled in terms  of the  Office

Memorandum.

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2.11. On June 27, 2005 the 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.

2.12. Aggrieved by this decision, the Appellants made a

representation before the Respondents seeking for a

declaration that their cases be governed by Clause (b), and

not Clause (c) of the Office Memorandum.

2.13. The Appellants thereafter filed Writ Petition No. 2704 of 2005

before the Bombay High Court seeking the following prayers:

 setting aside of  Communication/Orders passed by  the

Respondents on  March  24, 2005,  May  30,  2005  and

June 27, 2005;

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 directions to treat the cases of the Appellants as being

governed by Clause (b), and not Clause (c) of the Office

Memorandum.

In effect, the  Appellants  were seeking  directions that

their cases be considered eligible for grant of pension by the

Government of India.

2.14. A  Division Bench of the Bombay High Court dismissed Writ

Petition No. 2704 of 2005 on April 26, 2006 after holding that

the case of the Appellants was covered by an earlier decision

of a Division Bench in S.V. Vasaikar & Ors. v. Union of India &

Ors.  [2003 (2)  Mh.L.J. 691 : 2003 (4) Bom  CR 79]. The

Judgment dated April 26, 2006 passed by the Division Bench

was challenged by the Appellants before this Court by way of

S.L.P. (C) No. 15862 of 2006, which was later renumbered as

Civil Appeal No. 3059 of 2007. This Court  vide  Order dated

July 14, 2011 set aside the Judgment dated April 26, 2006

passed by the Division Bench of the Bombay High Court in

view of the submission by the Appellants that the decision in

S.V. Vasaikar & Ors. v. Union of India & Ors. [2003 (2) Mh.L.J.

691 : 2003 (4) Bom CR 79] was not applicable to the facts of

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their case. The matter was remanded to the High Court for

fresh consideration on merits.

2.15. After remand, the Bombay High Court re­heard the matter,

and passed a detailed judgment dismissing Writ Petition No.

2704 of 2005, and held that the Appellants were not eligible

to avail pensionary benefits under the Government of India,

since they had served for less than 10 years on the date of

their absorption into VSNL.

The High Court  held that on a cumulative  reading of

Clauses (a), (b), and (c) of the Office Memorandum makes it

clear that only  permanent  Government servants  who  have

served for  more than 10 years would have the option of

getting  pensionary  benefits  after their  absorption in  Public

Sector Undertakings.

The case of the Appellants would be governed by Clause

(c)  of the Office Memorandum which clearly carved out the

category  of employees  who  had  not  completed  10  years  of

service. It was held that a new category which is either

contrary to Clause (c),  or renders the import of  Clauses (a)

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and (b) nugatory, cannot be created by way of judicial

interpretation.

The High Court held that the matter was squarely

covered  by the earlier  decision  of a  Division  Bench  of the

Bombay High Court in S.V. Vasaikar & Ors. v. Union of India

& Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79].

3. Aggrieved  by the  Judgment and  Order dated  January  13,  2016

passed by the  Division Bench, the Appellants filed the present

Special Leave Petition. Applications for Impleadment have been filed

by 48 persons who claim to be similarly situated as the Appellants.  

4. Mr. Sanjay  Kumar  Mishra, Advocate appeared on behalf of the

Appellants, and sought the setting aside of the impugned Judgment

and Order dated January 13, 2016 passed by the Division Bench.

Mr. Vikramjit Banerjee,  learned Additional Solicitor General,

appeared on behalf of Respondent Nos. 1 – 3, and Mr. Maninder

Singh, learned Senior Advocate, appeared on behalf of Respondent

No. 4 – VSNL.

5. We have perused the record with the able assistance of the counsel

for the parties. The issue which arises for our consideration in the

10

present Civil Appeal is whether the Bombay High Court was

justified in holding that the case of the Appellants was covered by

the 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 the Central

Government.

6. SUBMISSIONS OF PETITIONERS     

6.1. Mr. Sanjay Kumar Mishra, Advocate, submitted that the

Division Bench of the Bombay High Court had committed an

error by denying pensionary benefits to the Appellants.

6.2. It was submitted that Clause (b) of the Office Memorandum

would govern the case of the Appellants, since they had opted

to avail the pensionary benefits available under the Central

Government at the time of their retirement under Clause (a) of

the Office Memorandum.

6.3. It was further submitted that the Office Memorandum should

be interpreted in isolation on the basis of its plain text, and

the Form attached with the Staff Notice dated February 21,

1990 should not condition the said interpretation.

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6.4. The  Division  Bench  had erroneously interpreted the  Office

Memorandum, since Clause  (a) is the controlling provision,

and Clause (c) in no way dilutes what is provided by Clause

(a).

The Appellants challenged the interpretation of the

Office  Memorandum given  by a co­ordinate bench in  S.V.

Vasaikar & Ors.  v.  Union of India & Ors.  [2003 (2) Mh. L.J.

691 : 2003 (4) Bom CR 79].

According to Mr. Mishra, Clauses (c) and (d) of the Office

Memorandum provides only the mode of payment of  retiral

benefits with respect to two different categories of employees –

viz.  employees with less than 10 years of qualifying service,

and employees with more than 10 years of qualifying service.

7. SUBMISSIONS OF RESPONDENTS     

7.1. The counsel for the Respondents inter alia submitted that the

issue in the present case was squarely covered by the earlier

judgment of the Bombay High Court in S.V. Vasaikar & Ors. v.

Union of India & Ors.  [2003 (2) Mh. L.J. 691 : 2003 (4) Bom

CR 79]. The Appellants through their Federation had

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appeared in this case, and had not challenged this judgment

before this Court. As a consequence, this judgment attained

finality. It  was therefore  not  open  to the  Appellants to re­

litigate the same issue in the present  Writ Petition. The

Division Bench rightly followed the said decision while

dismissing  Writ Petition  No. 2704 of 2005 by  way of the

impugned Judgment and Order dated January 13, 2016.

7.2. It was submitted on behalf of VSNL that the Office

Memorandum categorises employees into two classes –  first,

those who have completed 10 years of qualifying service; and

second, those who do not have 10 years of qualifying service.

Under the Office Memorandum, while the first class of

employees is entitled to  pension  under the  Government  of

India, the second class is entitled to a certain sum of

Provident Fund contribution.

7.3. The Appellants admittedly had less than 10 years of

qualifying service. They had voluntarily exercised their option

of getting absorbed in the regular service of VSNL. As a

consequence, this resulted in the severance of their previous

service with the Central Government, and they were deemed

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to have retired from Government service on January 2, 1990

i.e. the date of their absorption with VSNL in accordance with

Rule 37(1) of the Central Civil Services (Pension) Rules, 1972

[“CCS (Pension) Rules, 1972].

The 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 the Central

Government, were not entitled to receive pensionary benefits

as per Rule 49 of the CCS (Pension) Rules, 1972.

7.4. It was submitted that the Office Memorandum was virtually in

conformity with Rule 49 r.w. Rule 37 of  the CCS (Pension)

Rules, 1972. In any case, the Office Memorandum cannot be

interpreted in isolation, and has to be construed in

consonance with the CCS (Pension) Rules, 1972.

The requirement of having completed a minimum

qualifying service of  10 years  for  entitlement  to pensionary

benefits under Rule 49 of the CCS (Service) Rules, 1972

would apply to Clause (a) of the Office Memorandum.

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The Appellants had admittedly less than the minimum

qualifying service of 10 years, and were deemed to have

retired from  Government service, and  were  not entitled to

pensionary benefits under the Central Government. On

absorption with VSNL, they would not be entitled to pension.

8. DISCUSSION AND ANALYSIS     

8.1. Rule  37  of the  CCS  (Pension)  Rules,  1972 provides that  a

Government servant  who is absorbed in a  Corporation or

Government Company is deemed to have retired from

government service on the date of his/her absorption.

The relevant  extract  of  Rule  37 of the  CCS  (Pension)

Rules, 1972 is reproduced hereinbelow:

“37. Pension on absorption in or under a corporation, company or body

(1) 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 Central  Government  or a State Government or  in or under a Body controlled or financed by the Central Government or a State Government,  shall  be deemed to have retired from service from the date of such absorption and subject to sub­rule (3) he shall be eligible to receive retirement benefits if any, from such  date as  may  be determined, in accordance with the orders of the Central Government applicable to him.

(2) …

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(3) Where  there  is  pension scheme  in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the  Central  Government in that  body  for  pension  or to receive pro rata retirement benefits for the service rendered  under the  Central  Government in accordance with the orders issued by the Central Government.

EXPLANATION.– Body  means Autonomous Body or Statutory Body.”

(emphasis supplied)

The Appellants having voluntarily exercised the option

to get absorbed in the regular service of VSNL, were deemed

to have retired from the service of the Central Government on

the date of their absorption i.e.  January 2, 1990 as per Rule

37(1) of the CCS (Pension) Rules, 1972.

8.2. It is the admitted position that the Appellants had not

completed 10 years of service on the date of their absorption

into VSNL,  i.e.  when they were deemed to have retired from

the service of the Central Government.

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 the CCS

(Pension) Rules, 1972. According to Rule 3(q), ‘qualifying

service’ means the service rendered while on duty or

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otherwise which shall be taken into account for the purpose

of Pensions and Gratuities admissible under the CCS

(Pension) Rules, 1972.

8.3. Rule 49(2) of the CCS (Pension) Rules, 1972 provides that a

Government servant is entitled to receive pension on

retirement only after the completion of the qualifying service

of 10 years.1 On the other hand, a Government servant who

retires before completing the qualifying service of 10 years is

entitled to service gratuity under Rule 49(1) of the CCS

(Pension) Rules, 1972.

The relevant  extract  of  Rule  49 of the  CCS  (Pension)

Rules, 1972 is reproduced hereunder for ready reference:

“49. Amount of Pension

(1) In the case of a Government servant retiring in accordance with the provisions of these rules  before completing qualifying service of ten years, the amount of service gratuity  shall  be calculated at the  rate  of  half  month’s emoluments for every completed six  monthly period of qualifying service.

(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty­three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.;

1 Union of India & Anr.  v.  Bashirbhai R. Khiliji, (2007) 6 SCC 16 : AIR 2007 SC 1935.

17

(b)  I  n the case of a Government servant retiring  in accordance with the provisions of these rules  before completing qualifying service of thirty­three years, but after completing qualifying service of ten years, the amount of pension admissible under Clause (a) and in no case the  amount of  pension  shall be less than  Rupees three hundred and seventy­five per mensem;…”

(emphasis supplied)

A conjoint reading of  the statutory rules,  i.e.  Rule 37

with Rule 49 of the CCS (Pension) Rules, 1972, would make it

abundantly clear that the Appellants  were not entitled to

pensionary benefits  since admittedly they did not  have  the

minimum qualifying service of 10 years, to make their service

pensionable with the Central Government. On absorption in

VSNL on  January  2, 1990 there  was  a severance of their

service with the Central Government. The Appellants would

be entitled to the retiral benefits under VSNL.

After exercising the option to be absorbed in VSNL, the

Appellants are now estopped from seeking pensionary benefits

from the Central Government.

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8.4. The Office Memorandum dated July 5, 1989 was issued by

the Department of Pension and Pension Welfare, Government

of India to settle the pensionary terms and conditions

applicable in cases of en masse transfer of employees on the

conversion of a Government Department into a Central Public

Sector Undertaking/Autonomous Body.

(A) Clause (a) of the Office Memorandum provided an option

to Government servants (permanent, quasi­permanent

and  temporary) to  either retain the  pensionary  benefits

available to them under the Government rules or be

governed by the rules of the Public Sector

Undertaking/Autonomous Body. Under Clause (b),

Government servants who opt to retain pensionary

benefits  were  entitled to receive  pension at the time  of

their retirement “in accordance with Central Government

rules in force at that time”.

(B) A  conjoint reading of Clauses (a) and (b) would indicate

that the option of retaining pensionary benefits was

available only to those Government servants who were, in

the first place, entitled to receive pension at the time of

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their retirement.  This is evident from Clause (a)  which

provides the option to “retain” pensionary benefits

available  under  the  relevant Government rules.  Clauses

(a) and (b) pre­suppose that the Government servants who

opt to retain  pensionary  benefits, should  be  entitled to

receive pensionary benefits under the Central Government

rules, in the first place.

(C) Rule 37 read with Rule 49 of the CCS (Pension) Rules,

1972  indicates that the  Appellants  were  not  entitled to

receive Pension under the  CCS (Pension) Rules, 1972,

since they had not completed 10 years of qualifying

service. There was, therefore, no question of the

Appellants availing of the option of ‘retaining’ the benefits

under Clause (a).

(D) The Division Bench has rightly held that Clause (b) of the

Office Memorandum cannot be read  in  isolation,  and  is

required to be read  in conjunction with Clause (a).  The

entitlement to Pension under Clause (b) is qualified by the

phrase “in accordance with the Central Government rules

in force at that time”.

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(E) Further, Paragraph I (1) (ii) of the document titled

“Clarificatory  Information  to  Facilitate  Exercise of  Option”

clearly stated that the eligibility to retain pensionary

benefits under the Central Government was subject to the

condition of putting in a minimum of 10 years as

qualifying service.

The Appellants were specifically informed of this

clarification at the time of exercising their option that

their eligibility for pensionary benefits under the CCS

(Pension) Rules, 1972 was dependant on their fulfilling the

minimum eligibility requirement of 10 years qualifying

service on the day their retirement.

8.5. We find great force in the submissions made by Mr. Maninder

Singh, Senior Advocate appearing for VSNL, and the learned

Additional Solicitor General, that the case is squarely covered

by  the  earlier  decision of  a  Division Bench of the  Bombay

High Court in  S.V. Vasaikar & Ors.  v.  Union of India & Ors.

[2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR 79].

8.6. It has been rightly contended that the earlier Writ Petition No.

5374 of 2002 was filed in a representative capacity. Petitioner

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No. 3 in the said Writ Petition was the Federation of the VSNL

Employees Union, a collective body of VSNL employees. The

Federation was espousing the collective interest of the

Appellants,  and other  similarly  situated persons  before the

Division  Bench. The prayers in  Writ Petition  No. 5374 of

2002, was recorded by the High Court in the following words:

“3. In the second petition, i.e., Writ Petition No. 5374 of 2002, a prayer is made for  declaring that the action of the respondents in not giving the petitioners and similarly situated employees,  who  had  not completed ten years of service with the Government of India, the right  to exercise option for retaining Government pensionary benefits on their absorption with VSNL is arbitrary, discriminatory and violative of  Articles 14 and 16 of the Constitution. It  was, therefore, prayed that appropriate direction be issued to the Government of India that the  Petitioners and similarly situated employees,  who  had  not completed ten years of service on their date of absorption in VSNL, are entitled to exercise option for retaining Government pensionary benefits by counting their service in Government of India along with their service with VSNL for such benefits.”

(emphasis supplied)

The Division Bench dismissed the Writ  Petitions,  and

held as follows:

“26.  Regarding the contention that employees, who had not completed ten years, were not allowed to exercise the option with regard to  pensionary  benefits, it  may be  stated that even when they were in the Government service, when VSNL was a Government Company, they were not entitled to such benefits. Reading the memorandum also, it becomes abundantly clear that the persons, who had not completed ten years of service with the Government, were not entitled to

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pensionary benefits. The option, which was allowed by the Government, and to be exercised by the employees, was in respect of those employees who had completed ten years or more of service  and quasi­permanent employees and temporary employees, who would be entitled to such benefits after they would be confirmed in the Public Sector or Autonomous Bodies.  Since the petitioners and similarly situated persons, who had not completed ten years of service,  were  not  entitled  to  such benefits  even under  the Government, they cannot make grievance for pensionary benefits.”

(emphasis supplied)

The afore­said findings of the Division Bench squarely

cover the present case of the Appellants.

8.7. The decision in S.V. Vasaikar & Ors. v. Union of India & Ors.

[2003 (2)  Mh. L.J. 691 : 2003 (4) Bom  CR 79] was not

challenged before the Supreme Court, and has since attained

finality. Therefore, the relief sought by the Appellants before

the High Court was barred by the principle of res judicata.

Reference can be made to the decision of the

Constitution Bench in  Direct Recruit Class II Engineering

Officers’ Association  v.  State of Maharashtra & Ors.2 wherein

Sharma, J., on behalf of the five­judge bench, held:

“35…It is well established that the principles of res judicata are applicable to  writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he

2 (1990) 2 SCC 715 : AIR 1990 SC 1607. 23

would  have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason, the  order cannot  be relied  upon  for  a  plea  of res judicata. The answer is that it is not the order of this Court dismissing  the  special leave  petition which  is  being relied upon; the plea of res judicata has been pressed on the basis of the High Court’s  judgment which became final after the dismissal of the special leave petition. In similar situation a Constitution Bench of this Court in Daryao v.  State of  UP3

held that  where the  High  Court  dismisses  a  writ petition under Article 226 of the Constitution after hearing the matter on the merits, a subsequent petition  in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties  will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32…”

(emphasis supplied)

Albeit the decision of the Constitution Bench was in the

context of a Writ Petition filed under Article 32, it would apply

with greater force to bar  a Writ  Petition  filed under Article

226, like the one filed by the present Appellants, by the

operation of the principle of res judicata.

3 (1962) 1 SCR 574 : AIR 1961 SC 1457. 24

8.8. The Appellants were not entitled to receive pensionary

benefits either under the CCS (Pension) Rules, 1972 or under

Clauses (a) and (b) of the Office Memorandum.  

The case of the 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

the  Office  Memorandum.  Under  Clause (c), they  would be

entitled to receive  an amount equal to the  Provident  Fund

contribution for the period of their service under the

Government, upto the date of their permanent absorption

along with Simple Interest at 6%  per annum  as the opening

balance in their CPF account with the Public Sector

Undertaking/Autonomous Body.

9. In view of the aforesaid findings, the present Civil Appeal is

dismissed. The impugned Judgment and Order dated January 13,

2016 passed by the Bombay High Court in Writ Petition No. 2704 of

2005 is affirmed.

10. The Applications for Impleadment filed in the Appeal are disposed

of in terms of the present judgment. Any other pending I.A.s are

disposed of.

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Ordered accordingly.

…..……...........................J. (UDAY UMESH LALIT)

..….……..........................J. (INDU MALHOTRA)

New Delhi March 15, 2019.

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