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PETITIONER: T. RAMAKRISHNIAH

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT04/05/1990

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR 1673            1990 SCR  (3) 207  1990 SCC  (3) 619        JT 1990 (2)   582  1990 SCALE  (1)86

ACT:     Civil Services: Mysore Civil Services Rules, 1957: Rules 2(2),  95  and 283. Non-official Member of State  Sales  Tax Appellate     Tribunal-Applicability      of--Superannuation pension--Entitlement to.     Karnataka  Sales Tax Act, 1957/Mysore Sales  Tax  Rules, 1957: Section 4(2)/Rule 64--Non-official Member of Sales Tax Appellate   Tribunal--Whether  entitled  to   superannuation pension--Mysore Civil Services Rules--Applicability of.

HEADNOTE:     The appellant was appointed as a non-official member  of the  State Sales Tax Appellate Tribunal for a period of  two years  from 17.7.1958, under sub-section(2) of Section 4  of the Mysore Sales Tax Act, 1957. The appointment was extended from  time to time and continued upto 8.2.1972. By a  letter dated 8.2.1972, the respondent intimated the appellant  that he  had been granted 52 days Earned Leave as terminal  leave from 9th February, 1972. The appellant represented for grant of superannuation pension. This was rejected by the  Govern- ment on the ground that he was not eligible for pension.     The appellant’s writ petition was dismissed by a  single Judge of the High Court who held that rule 64 of the  Karna- taka  Sales Tax Rules, 1957 was applicable to him, and  that he  was not eligible to claim superannuation  pension.  This was upheld by the Division Bench.      In  the  appeal  before this Court, on  behalf  of  the appellant it was contended that as a non-official member  of the Tribunal, he was a government servant, and as such, like other  Government  servants,  he was entitled  to  grant  of pension in accordance with Mysore Civil Service Rules,  that he was retired from service after reaching the age of super- annuation, that his appointment was not a contract  appoint- ment, that he was paid traveling allowance under the  Mysore Civil Service Rules, and that Rule 64(6) of Mysore Sales Tax Rules  inserted in 1964, and substituted in 1971, not  being in  existence at the time of his appointment, could  not  be made  applicable to him as to deprive him of the benefit  of superannuation  pension  as  provided in  the  Mysore  Civil Service Rules. 208

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Dismissing the appeal, this Court,     HELD:  1.  The terms and conditions of  service  of  the appellant who was appointed as a non-official member in  the Karnataka Sales Tax Appellate Tribunal under sub-section (2) of Section 4 of Karnataka Sales Tax Act, 1957 and was  given last extension of the period of service under clause (b)  of sub-rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957, will  be governed by the Mysore Sales Tax Rules and  not  by the  provisions of Mysore Civil Services Rules.  Since  sub- rule (6) of rule 64 of Mysore Sales Tax Rules was substitut- ed  in  place of original subrule (6) before  the  appellant retired  from  service on expiry of his period  of  service, this rule applies to him, and he is not entitled to get  any superannuation pension. [211D-E; G]     2.1 Sub-rule (2) of Rule 2 of Mysore Civil Service Rules 1957,  clearly says that in cases where  special  provisions have  been  made by or under any law for the time  being  in force,  the Mysore Service Rules do not apply.  Furthermore, Rule  283  of the said Rules states  that  a  superannuation pension is granted to a Government Servant who is  compelled by Rule to retire at a particular age. Rule 95 provides that the date of compulsory retirement of a Government servant is the  date on which he attains the age of 55 years,  and  the Government servant may be retained upto 60 years of age with the  sanction  of Government, but not after the  age  of  60 years. [212C; E-F]     2.2  Rule  64(6).of  the Mysore Sales  Tax  Rules,  1957 clearly  says that the non-official member of the Sales  Tax Tribunal   will   become   ineligible   for   any   pension. Hence,provisions  relating to pension as provided in  Mysore Civil  Service Rules, 1957 will not apply to a  non-official member. [212D-E]     2.3 In the instant case, the appellant was appointed  as a member of the Tribunal for a period of two years  initial- ly, and thereafter his tenure was extended periodically  and he  left the service as non-official member of the  Tribunal after he crossed the age of 61 years. There was no  specific order that the appellant was due to retire at the age of  55 years. There is no rule for a non-official member to  retire at  a  particular age. Moreover, the  Government  sanctioned certain  terms  and  conditions of his  appointment.  It  is periodical  and not upto a maximum age, nor it is  a  whole- time  service  but  a part-time one and  the  appellant  was permitted to take up audit of any person, firm,  institution etc.  on certain restrictions. A Government servant  has  to render  whole  time  service. Therefore,  the  Mysore  Civil Service Rules, 1957 do not apply to the 209       appellant,  and he is not eligible for  superannuation  pen- sion. [212F-G; 213C-D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No 10 (N)  of 1981.     From  the Judgment and Order dated 22nd March,  1978  of the Karnataka High Court in Writ Appeal No. 520 of 1975. R.B. Datar, K.R. Nagaraja and R.S. Hegde for the Appellant. M. Veerappa for the Respondent. The Judgment of the Court was delivered by     RAY,  J.  This appeal by special leave  is  against  the judgment  and  order  dated 22nd March, 1978  made  in  Writ Appeal No. 520 of 1975 dismissing the appeal and  confirming the  judgment  and order made in Writ Petition No.  3073  of

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1974 on 18.7.1985.     The  appellant  who was a chartered accountant  was  ap- pointed as a non-official member of the Sales Tax  Appellate Tribunal,  in the State of Karnataka by an order (No. RD  80 SXE  1958) dated 16th July, 1958 for a period of  two  years from 17th July 1958 under subsection (2) of Section 4 of the Mysore  Sales Tax Act, 1957 (Mysore Act No. 25 of 1957).  By an  order No. RD 17 SXT 58 dated 12th December, 1958  issued by  the Government it has been mentioned that the  appellant as  member of Sales Tax Tribunal shall be eligible for  Tra- vells Allowance under the Mysore Civil Service  (Classifica- tion, Control and Appeals) Rules 1958 as a government  serv- ant in respect of tours undertaken by him in connection with his  official duty on the basis of his salary Rs. 1,000  per month. Thereafter the appointment was continued from time to time,  the last of the period during which  the  appointment was  continued, was by a notification No. FD 6 CAT 71  dated 8th November 1971 by which his period of service was extend- ed  for a period of two months with effect  from  9.12.1971. This notification was issued in exercise of powers conferred by  clause (b) of sub-rule 1 of Rule 64 of the Mysore  Sales Tax  Rule, 1957. The respondent by a letter  dated  8.2.1972 intimated him that he had been granted 52 days earned  leave as  terminal  leave from 9th February, 1972.  The  appellant made representations to the respondent that he was  entitled to  superannuation pension, and same be granted to him.  The Government turned down his request on the ground that he was not eligible for such pension. The appellant, then, moved  a writ petition No. 3073 210 of 1974 before the High Court, Karnataka stating that he was granted  leave on several occasions in accordance  with  the Mysore  Civil Service Rules and the Accountant  General  had treated  him  as a gazetted officer in the  service  of  the State Government and as such as a Government servant he  may be  granted  superannuation pension under the  Mysore  Civil Service Rules. The learned Single Judge held that Rule 64 of the  Karnataka Sales Tax Rules, 1957 was applicable to  this case  and under the said Rules he was not eligible to  claim superannuation pension. It was further held that even  under the  Mysore Civil Service Rules he would not be entitled  to claim  such a pension. The writ petition was dismissed.  The learned  Judge, of course, held that the appellant would  be entitled to gratuity in terms of Rule 64 and so directed the Government to examine the case of the appellant for grant of gratuity under the rule and pass appropriate orders in  that regard expeditiously.     The  appellant feeling aggrieved preferred  Writ  Appeal No.  520 of 1975 which was dismissed by the High  Court  and the judgment pronounced in the writ petition was upheld.     It  is against this judgment and order, this  appeal  on special leave has been filed.     The  main plank of the argument of the counsel  for  the appellant is that the appellant as a member of the Sales Tax Tribunal  was  a government servant and as such  like  other government servants he is entitled to the grant of  superan- nuation  pension  in accordance with  Mysore  Civil  Service Rules. Several Rules have been referred to in support of his submission  that he was retired from service after  reaching the  age  of superannuation. He further submitted  that  the appointment of appellant was not a contract appointment  and so  the  Mysore Civil Service Rules are  applicable  to  the appellant for payment of superannuation pension.     It is not disputed that the appellant was appointed as a nonofficial  member  of the Karnataka  Sales  Tax  Appellate

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Tribunal  under sub-section (2) of Section 4 of  the  Mysore Sales’ Tax Act, 1957. This is evident from the  notification dated  16.7.1958  issued by the  Government  appointing  the appellant as a member of Sales Tax Tribunal as well as  from Order  No.  RD 17 SXT 58 dated 12th December 1958.  The  ap- pointment  was  continued  from time to time  and  the  last extension  was  given  by Order No. FD 6 CAT  71  dated  8th November, 1971 made under clause (b) of sub-rule (1) of Rule 64 of the Mysore Sales Tax 211 Rules,  1957.  It is relevant to notice in  this  connection that  Rules 63 and 64 were introduced by a notification  No. FD  18 CAT 62 dated 10/13th January, 1964. Sub-rule  (6)  of Rule 64 is quoted below: "The  non-official  member  shall not be  eligible  for  any pension, gratuity or other remuneration."     By  further  notification No. FD 614  dated  7th  April, 1971,  a new Sub-rule (6) was substituted which was  to  the following effect: "(6) The non-official member shall be eligible for  gratuity equivalent  to  one month’s pay for each completed  year  of service including interruption or interruptions, if any, the total  duration of which does not exceed 180 days but  shall not be eligible for any pension or other remuneration ."     Thus  the  appellant  was appointed  as  a  non-official member  in the Karnataka Sales Tax Appellate Tribunal  under sub-section  (2)  of Section 4 of Karnataka Sales  Tax  Act, 1957 and the last extension of the period of his service was given by Government under clause (b) of sub-rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957. The terms and condi- tions  of his service will be governed by the  Mysore  Sales Tax Rules and not by the provisions of Mysore Civil Services Rules and it cannot be contended by the appellant that  Rule 64(6)  of.the said Mysore Sales Tax Rule, 1957 was  not  ap- plicable to him. So the appellant is not eligible for super- annuation  pension after his relinquishment of the  post  of non-official  member of Sales Tax Tribunal on expiry of  the period of his service.      It  has  been further urged that Rule 64(6)  of  Mysore Sales  Tax  Rules was inserted in 1964 and sub-rule  (6)  of Rule  64 was substituted on 7th April, 1971. This  rule  not being  in existence at the time the appellant was  appointed as  a member of the said Tribunal, the same cannot  be  made applicable  to  the appellant and thereby he  could  not  be deprived of the benefit of superannuation pension as provid- ed in Mysore Civil Service Rules. This contention is per  se without any substance in as much as before the retirement of the  appellant from service due to expiry of his  period  of service  the said provisions of sub-rule (6) of rule  64  of Mysore Sales Tax Rules was substituted in place of  original sub-rule  6 of Rule 64 and as such this rule applies to  the appellant  and he is not entitled to get any  superannuation pension.  The High Court has tightly held that according  to Rule 64(6) the appellant could not claim pensionary benefit. 212     The appellant next submitted that he became a Government servant  on being appointed as a non-official member of  the Sales  Tax  Appellate  Tribunal and he  was  paid  traveling allowance according to Mysore Civil Service Rules, 1957  and so he is entitled to pension as provided in the said  Rules. As stated hereinbefore that the appellant was appointed as a Member  of the said Tribunal by the respondent  State  under Section  4(2)  of  the Sales Tax Act  and  though  initially appointed for a period of two years in 1958, his service was extended  periodically till February, 1972 under clause  (b)

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of  sub-rule (1) of Rule 64 of the Mysore Sales  Tax  Rules, 1957  by the Government of Mysore. Therefore,  the  foremost question  is whether in such circumstances the Mysore  Civil Service  Rules apply to him. It is apropos to refer in  this connection  sub-rule (2) of Rule 2 of Mysore  Civil  Service Rules,  which specially provided that the said  Rules  shall not  apply to persons for whose appointment and  other  mat- ters,  special provisions are made by or under any  law  for the time being in force or in any contract in regard to  the matters  covered  by such law or such  contract.  This  Rule clearly  says  that in cases where special  provisions  have been  made by or under any law for the time being in  force, the  Mysore  Service Rules will not apply.  In  the  instant case, Rule 64(6) of the Mysore Sales Tax Rules, 1957 clearly says that the non-official member of the Sales Tax  Tribunal will  become ineligible for any pension, and as such  provi- sions relating to pension as provided in Mysore Civil  Serv- ice Rules, 1957 will not apply. Furthermore, Rule 283 of the said Rues states that a superannuation pension is granted to a Government Servant who is compelled by Rule to retire at a particular age. Rule 95 provides that the date of compulsory retirement  of a Government servant is the date on which  he attains  the age of 55 years. It further provides  that  the Government servant may be retained upto 60 years of age with the  sanction of Government. He must not be  retained  after the  age  of 60 years. There is no rule under which  a  non- official member is to retire on attaining a particular  age. The appellant was appointed as a member of the Tribunal  for a  period of two years initially and thereafter  his  tenure was  extended periodically and he left the service  as  non- official member of the Tribunal after he crossed the age  of 61 years. There was no specific order that the appellant was due to retire at the age of 55 years. There is no rule for a non-official member to retire at a particular age.  Moreover by  order No FD 1 CAT 69 dated January 28, 1970 the  Govern- ment sanctioned certain terms and conditions of his appoint- ment. the condition Nos. 2 and 5 are as hereunder: "(2) The terms of appointment shall be one year with  effect from 9th December, 1969. 213     ...............     ............... (5) He is permitted to take up the audit of accounts of  any person, institution, firm or body of persons without  preju- dice to his official duties as a Member of the Tribunal  and the  person, institution, firm or body of persons  concerned is not and is not likely to be liable to Sales Tax, Agricul- tural Income Tax or Entertainment Tax."     The  appointment of the appellant is periodical and  not upto  a  maximum age nor it is a whole-time  service  but  a part-time  one  and the appellant was permitted to  take  up audit  of  any  person, firm, institution  etc.  on  certain restrictions. A Government servant has to render whole  time service.  Therefore,  considering all these aspects  it  has been  found by the High Court that the Mysore Civil  Service Rules, 1957 do not apply to the appellant and as such he  is not eligible for superannuation pension. We do not find  any infirmity  in the judgment of the High Court which is  unex- ceptionable-     We,  therefore, uphold the judgment of the  High  Court, dismiss the appeal without any order as to costs. N.P.V.                                   Appeal dismissed. 214

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