Ghanshyam Dass Relhan Vs State of Haryana .

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. 98 of 2007

Ghanshyam Dass Relhan …Petitioner Vs. State of Haryana & Ors. …Respondents

J U D G M E N T

ALTAMAS KABIR,J.

1. The petitioner was appointed as a clerk in the

office of the Deputy Commissioner, Hisar on

7.11.1958 on being selected by the Punjab

Subordinate Services Selection Board, Chandigarh.

On 11.1.1970 he was transferred to the office of

the Deputy Commissioner, Karnal, in a permanent

vacancy and was confirmed in the said post therein

with effect from 1.1.1970. He was promoted as

Stenographer and was posted in the office of the

Deputy Commissioner, Kurukshetra.

2. On 11.10.1976 some posts of Senior Accountants

were advertised by the Kurukshetra Central Bank

Limited and upon his application through proper

channel he was selected for one of the said posts.

After taking permission of the Government of

Haryana the petitioner resigned from the post of

Stenographer and relinquished charge on 10.1.1977

when he joined the said Bank as Senior Accountant.

The petitioner retired from the service of the Bank

on superannuation on 30.9.1997 and was paid

Contributory Provident Fund, Gratuity and Leave

Encashment, but not pension. The petitioner

thereupon made a representation to the Chief

Secretary, Government of Haryana, for grant of

pension as he had rendered 18 years 2 months and 3

days of service between 7.11.1958 to 10.1.1977 in

the office of Deputy Commissioner, Hisar, Karnal

and Kurukshetra. On being asked to submit an

application for pension in the prescribed proforma

the petitioner submitted the same on 14.4.2003 to

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the Deputy Commissioner, Kurukshetra. On 17.5.2005,

the petitioner was informed by the Deputy

Commissioner, Kurukshetra, that he could not be

given pension in view of Rule 4.19 and Note 1 of

Rule No.5.32(b) of the Punjab Civil Services Rules.

The said decision was challenged by the petitioner

in Civil Writ Petition No.8666 of 2005 in the

Punjab and Haryana High Court, which dismissed the

Writ Petition on 7.8.2006 upon holding that the

petitioner was not entitled to pension under Rule

5.2(a) of the aforesaid Rules because he had not

rendered qualifying service of at least 30 years.

The said decision of the High Court has been

challenged in this Special Leave Petition.

3. Appearing in support of the Special Leave

Petition, Mr. S.K.Dholakia, learned senior counsel,

submitted that since payment of pension is intended

to be a social security after retirement, the rules

relevant thereof should be interpreted liberally in

favour of grant of such pension, which had not been

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done by the High Court while passing the impugned

order. Mr. Dholakia submitted that Rule 4.19(a)

could not be applied to the petitioner’s case,

inasmuch as, the said Rules contemplated

resignation from public service on account of anti-

national activities such as sabotage, espionage

etc. or for misconduct, insolvency, inefficiency

not due to age or failure to pass a prescribed

examination.

4. Mr. Dholakia urged that none of the said

contingencies which entails forfeiture of past

service and disqualification for pension, apply to

the petitioner’s case. On the other hand, according

to Mr. Dholakia, the authorities, as well as the

High Court, should have applied the provisions of

Rule 4.19(b) to the petitioner’s case. For the sake

of reference Rules 4.19(a) and (b) are extracted

hereinbelow:

“4.19(a) Resignation from public service, dismissal or removal from it, either under proviso (c) to Article 311(2) of the

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Constitution for over anti-national activities such as sabotage, espionage etc. or for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination, entails forfeiture of past service and no pension shall be granted in the aforementioned circumstances:

Provided that in the cases of those Government employees whose removal or dismissal results from participation in other objectionable activities affecting or endangering the security of the State, such proportionate pension may be granted as may be recommended by the Committee by the Advisors constituted under the Haryana Civil Services (Safeguarding of National Security) Rules, 1971.

(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service.

In cases where an interruption in service is inevitable due to the two appointments being at different stations, such interruptions, not exceeding the joining time permissible under the rules on transfer, shall be covered by grant of leave of any kind due to the Government employee on the date of relief or by formal condonation under Rule 4.23 to the extent to which the period is not covered by leave due to the Government employee.”

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5. In addition to the above Mr. Dholakia also

referred to Rule 6.16(2) of the aforesaid Rules,

which reads as follows:

“6.16(2) In the case of a Government employee retiring on or after the 1st April 1979, in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years or more, the amount of superannuation, retiring, invalid and compassionate pensions shall be 50% of average emoluments as defined in Rule 6.19 –C of these rules subject to a maximum of (Rs.3000/-)(Substituted vide No.1/2/1/CSR Vol.II/91 –Sr.AO(FD) dated 31.1.92) per mensem. However, in the case of a Government employee who at the time of retirement has rendered qualifying service of ten years or more but less than thirty three years, the amount of pension shall be such portion of the maximum admissible pension as such the qualifying service of thirty three years, subject to a maximum of (Rs.375/-) (Substituted vide No.1/2/1/CSR.Vol.II/91-Sr.A.O.(FD) Dated 31.1.92) per mensem…”

6. Mr. Dholakia submitted that the first part of

Rule 6.16(2) would not apply to the petitioner

since he had resigned from the service of the

Government of Haryana on 11.10. 1976, i.e. prior to

the date mentioned in the first part of said Rule.

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However, according to Mr. Dholakia, the second part

of the Rule would apply since it indicates that in

the case of a Government employee, who at the time

of retirement has rendered qualifying service of 10

years or more, but less than 33 years, he would be

entitled to pension which would be subject to such

portion of the maximum pension on completion of the

qualifying service of 33 years subject to a maximum

of Rs.375/-. Mr. Dholakia urged that the petitioner

was at least entitled to the benefit of the second

portion of Rule 6.16(2) since he had completed more

than 18 years of service in the employment of the

Government of Haryana.

7. In support of his submissions Mr. Dholakia

referred to and relied upon a Division Bench

decision of the Calcutta High Court in the case of

Dr. Sajal Kanti Chakraborty vs. State of West

Bengal and ors. [2004(5) SLR 634] wherein Rule

33(1) and (2) of the West Bengal Services (Death-

cum-Retirement Benefit) Rules, 1971, which are pari

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materia to Rule 4.19(a) and (b), fell for

consideration and by applying Rule 33(2), which is

akin to Rule 4.19(b), the Calcutta High Court held

that the resignation of the employee would not be

treated as resignation from public service and

would entitled him to pension in terms of Rule 59

of the said Rules.

8. Reference was also made to the decision of this

Court in Praduman Kumar Jain vs. Union of India

[(1994 Supp (2) SCC 548] which involved the right

to pension claimed by the appellant after having

completed more than 10 years service without

interruption. This Court held that despite the fact

that the appellant had not been confirmed in

service, but having resigned to join as Central

Government Undertaking, he must be held to have

fulfilled the requirement of substantive

appointment and the requisite length of qualifying

service.

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9. Mr. Dholakia urged that since Rule 4.19(b)

provides that resignation of appointment to take

up, with proper permission another appointment,

whether permanent or temporary, service in which

counts in full or in part, is not a resignation of

public service, the petitioner should also be given

the benefit thereof for the purpose of computing

qualifying service at the time of his

superannuation from the service of the Bank.

10. On the other hand, Mr. P.S.Patwalia, learned

senior counsel appearing for the respondents, began

where Mr. Dholakia ended and urged that the

expression used in Rule 4.19(b) namely “service in

which counts in full or in part” can only mean that

a employee who after resignation claims the benefit

of Rule 4.19(b) has to subsequently join a service

which is pensionable. He also urged that Rule 6.16

(2) of the Rules, on which reliance has been placed

by Mr. Dholakia, would not apply in the facts of

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this case in view of Rule 5.32-A which deals with

grant of retiring pension.

11. For the sake of reference the said Rule is

extracted hereinbelow:

“5.32-A. The rule for the grant of retiring pensions is as follows:

a) A Government employee is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years, but a competent authority may permit the pension to be granted in Special cases where the qualifying service is not less than 25 years.

b) A retiring pension is also granted to a Government employee who is required by Government to retire after completing 25 years qualifying service or more and who has not attained the age of 55 years.”

12. Mr. Patwalia submitted that the aforesaid Rule

takes into account the resignation of a Government

employee and his right to pension after such

resignation is accepted and the same contemplates a

qualifying service of not less than 30 years in

order to be eligible to a retiring pension. Mr.

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Patwalia pointed out that as far as Rule 6.16(2) is

concerned the same does not deal with resignation

but only retirement and that too after 1.4.1979.

He also urged that the said Rule could not be

divided into two compartments, as has been sought

to be done by Mr. Dholakia. He urged that the said

Rule provides for pension on retirement after

completion of qualifying service. The latter part

of Rule 6.16(2) flows from the first half and

contemplates a situation where an employee may not

have completed 33 years but 10 years of service and

had made such an employee who retired in the normal

course entitled to the benefit of pro rata pension

in relation to his length of service.

13. To bolster his submissions Mr. Patwalia

referred to the decision of this Court in Union of

India vs. Rakesh Kumar [(2001) 4 SCC 309] in which

the BSF Rules which are similar to the Rules under

consideration in this Special Leave Petition were

considered. Analyzing the provisions of Rule 48(a)

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and 49 of the Central Civil Services (Pension)

Rules, 1972, along with the provisions of the BSF

Rules 1969, the Court was of the view that in the

event the Government servant retires before

completing the period of qualifying service for

pension he would be entitled to gratuity which was

to be calculated at a half month’s emolument for

every completed six months of qualifying service.

However, those Government servants, who completed

the qualifying service of 10 years, would be

entitled to payment of pro-rata pension in relation

to their length of service.

14. Mr. Patwalia also referred to another decision

of this Court in Reserve Bank of India vs. Cecil

Dennis Solomon and another [(2004) 9 SCC 461] where

the benefit of voluntary retirement, which was

equated with resignation by the High Court, was

held to be erroneous since it did not fall within

the definition of “retirement” contemplated under

the RBI Regulations, 1948. He then referred to the

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decision of this Court in UCO Bank vs. Sanwar Mal

[(2004) 4 SCC 412] where the difference between the

words ‘resignation’ and ‘retirement’ was noticed

and explained. It was observed that the two

expressions carry different meanings in common

parlance. It was held that an employee could

resign at any time, but in the case of retirement

he could retire only upon attaining the age of

superannuation or in the case of voluntary

retirement on completion of qualifying service. Mr.

Patwalia submitted that the decision of the High

Court had been rendered on the basis of the Rules

relevant to the petitioner’s case and did not

warrant any interference.

15. Having considered the submissions made on

behalf of the respective parties and the provisions

of the Punjab Civil Services Rules, we are unable

to accept Mr. Dholakia’s submissions that in view

of the provisions of Rule 4.19(b) read with the

latter portion of Rule 6.16(2) of the aforesaid

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Rules, the petitioner will be eligible and entitled

to pro rata pension having rendered more than 10

years’ service which has been indicated as the

qualifying service in the latter portion of the

said Rule for the purpose of receiving pro-rata

pension.

16. In our view, Rule 4.19(a) has to be read and

understood differently from what has been urged by

Mr. Dholakia. The expression ‘resignation from

public service’ will have to be read disjunctively

from ‘dismissal or removal from it’. The expression

‘resignation from public service’ will not be

qualified by the subsequent references relating to

anti-national activities. On the other hand, the

expression ‘dismissal or removal from it’ will be

qualified by the said expression which would in

both cases entail forfeiture of past service and

disqualification so far as payment of pension is

concerned. In other words, read disjunctively,

resignation simpliciter from public service would

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entail forfeiture of past service and no pension is

to be granted in the aforesaid circumstances.

17. As far as Rule 4.19(b) is concerned it is quite

clear that resignation to take up with proper

permission another appointment, would have to be in

a service, which would count towards pension in

Government service. It means that the subsequent

appointment must also be in public service and in

such a case the resignation would not amount to

resignation of public service. In such a case,

continuity in public service would be accepted in

computing the qualifying service of 30 years for

grant of pension. It is a provision similar to

Rule 4.19(b) which was relied upon by the Division

Bench of the Calcutta High Court in deciding the

case of Dr. Sajal Kanti Chakraborty (supra), and

distinguishes the said case from the facts of this

case.

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18. As far as Rule 6.16(2) is concerned, in our

view, the same cannot be divided into two separate

compartments as has been suggested by Mr. Dholakia.

The second part of the said Rule is a consequence

of the first part, which deals with retirement upon

superannuation and not resignation, as in the

instant case. In order to be eligible for pension

the Government employee at the time of

superannuation would have to complete qualifying

service of not less than 33 years or more. However,

an exception has been made in the second part of

the said Rule which also allows the benefit of pro-

rata pension to employees who had rendered 10 years

service or more. In our view, not having

superannuated from government service, the

petitioner cannot come within the said category and

as submitted by Mr. Patwalia, his case would

instead be governed by Rule 5.32-A, which deals

with resignation.

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19. The said Rule clearly provides that a

Government employee is entitled on his resignation

being accepted to a retiring pension subject to his

completing qualifying service of not less than 30

years which in special cases could be reduced to 25

years. Since the petitioner has not completed the

qualifying service of 30 years and since the

service rendered by him with the Bank would not be

counted towards Government service, the petitioner

is not entitled to the benefit of pension under

Rule 6.16(2) and the High Court has rightly decided

the issue.

20. We, therefore, see no reason to interfere with

the judgment of the High Court and the Special

Leave Petition is, therefore, dismissed, but

without any order as to costs.

________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 16.07.2009

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GHANSHYAM DASS RELHAN Vs STATE OF HARYANA .

GHANSHYAM DASS RELHAN Vs STATE OF HARYANA .