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CASE NO.: Appeal (civil)  6879 of 2003

PETITIONER: State of Haryana & Ors

RESPONDENT: Babu Singh

DATE OF JUDGMENT: 27/11/2007

BENCH: H. K. Sema & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.6879 OF 2003

Lokeshwar Singh Panta, J.

1.      This appeal, by special leave, is directed against the  judgment and order dated 19.07.2002 passed by a Division   Bench of the High Court of Punjab and Haryana at  Chandigarh in CM No.10362/99 in CWP No.2890/97, whereby  and whereunder the appellants have been directed to pay  pension to Babu Singh by giving him benefit of  Rule 6.16 (2)  of the Punjab Civil Services Rules, 1952 (Vol.-II Part-I) with  further direction to do the needful within a period of three  months from the date of submission of a certified copy of the  order.   2.      The necessary facts in brief  may be stated as follows:         Babu Singh, respondent herein, served the Indian Army  as a Driver from 06.01.1964 to 31.01.1979.  He was granted  the benefit of pay fixation, seniority, increments etc. of the  military service.  After being discharged from Army service, the  respondent was appointed as Driver in Haryana Roadways,  Faridabad, w.e.f. 23.04.1979.  On 09.03.1996, the respondent  applied for voluntary retirement from service and his request  was accepted by the General Manager, Haryana Roadways,  Faridabad, who retired him from service vide Order dated  18.06.1996.  Afterwards, the respondent made representation  for reinstatement by contending that the General Manager,  Haryana Roadways- appellant No.3 herein could not have  accepted his conditional plea for voluntary retirement ignoring  the fact that he will not be eligible to get pensionary benefits  without counting military service.  Having failed to receive any  favourable decision from the appellants, the respondent filed  Civil Writ Petition No.2890/97 in the High Court of Punjab  and Haryana at Chandigarh, inter alia, claiming the following  reliefs:- "(i) issue a writ of certiorari quashing the  impugned order dated 18.06.1996 being  illegal and against the provisions of rules;

(ii) issue a writ of mandamus directing  the respondent-authorities to take back  the petitioner into service in order to  complete 20 years qualifying service for  the purpose of pension, gratuity, etc.;

(iii) issue any other appropriate writ,  order or direction which this Hon’ble

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Court may deem fit in the circumstances  of the case;

(iv) dispense with the filing of certified  copies of annexures of this writ petition;

(v) dispense with the advance notice to  the respondents of the writ petition; and

(vi) award the costs of this writ petition to  the petitioner."

3.      The respondents in the writ petition, who are appellants  before this Court, have contested and resisted the claim of the  writ petitioner.  They contended that as the respondent sought  unconditional voluntary retirement, he was not entitled to get  pension in view of the decision taken by the Accountant  General, Haryana, appellant No.4 herein and conveyed vide  communication dated 03.08.1996 to appellant No. 3.   4.      During the commencement of the hearing of the said writ  petition, the Deputy Advocate General of the State drew   attention of the High Court to the original application  submitted by the respondent in February 1996 seeking  voluntary retirement from service and pointed out that the  document produced as Annexure P-2 by the respondent along  with the writ petition contained interpolation.  It was  submitted that the words "if the Government has got any such  law that I can get pension under the benefit of ex-service, I may  be given retirement" were not stated in the original application  and those words had been added later on by the respondent in  order to prove his plea that he sought conditional voluntary  retirement.  After hearing the learned counsel for the  respondent on the issue of interpolation of the aforesaid words  in the application, the High Court observed as under:- "In our opinion, the document Annexure  P-2 purporting to be the true translation  of the application submitted by the  petitioner for making voluntary  retirement has been fabricated by the  petitioner in order to justify his plea that  respondent No.3 should not have  accepted his request without verifying his  entitlement to get pension.   A look at the original application  submitted by the petitioner before the  respondent No.3 for voluntary retirement  shows that he had pleaded inability to  serve the Roadways due to illness and  adverse family conditions.  In the said  application, he did not incorporate the  condition that his request may be  accepted only if he was entitled to earn  pension on the basis of total service.  In  the absence of such condition,  unconditional acceptance of the  petitioner’s request for retirement cannot  be nullified or invalidated on the ground  that he had subsequently changed his  mind.  Otherwise also, we are not  convinced with the petitioners’ plea that  he was unaware of the limited benefit  extended to him vide order dated  09.03.1987 (date of this order has been  given as 09.11.1987 in the written  statement filed by the respondents) which

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was passed by the respondent No.3 under  the Punjab National Emergency Rules,  1965.  A bare reading of that order shows  that the military service rendered by the  petitioner was counted only for the  purpose of fixation of pay, seniority and  increments and no other benefit was  extended to him.  Therefore, the  petitioner cannot make any grievance  against the acceptance of his request for  voluntary retirement.  As a logical  corollary, it must be held that he cannot  seek reinstatement merely because the  Accountant General of Haryana has  refused to give him pensionary benefits.

For the reasons mentioned above, the  writ petition is dismissed.  In view of the  highly contumacious conduct of the  petitioner of producing fabricated  documents before the Court, we impose  costs of Rs.5,000/- which the petitioner  should pay to the respondent."

5.      The respondent thereafter filed another Writ Petition No.  4619/99 in the High Court of Punjab and Haryana at  Chandigarh, inter alia, praying for the following directions:-     (i)     issue a writ of certiorari, mandamus  or any other appropriate writ directing  the respondent-authorities to release the  retirement benefits, i.e. pension, gratuity,  commutation of pension w.e.f.  13.06.1966 and revised pay scales,  revised pension, revised gratuity, etc.  w.e.f. 01.01.1996 in view of the  acceptance of recommendations of the  Fifth Pay Commission by the State  Government in February 1998 with  interest at the rate of 18% per annum;

(ii) issue any other appropriate writ, order  or direction which this Hon’ble Court may  deem fit in the circumstances of the case;

(iii) dispense with the filing of certified  copies of annexures of this writ petition;

(iv) dispense with the advance notice to  the respondents of the writ petition; and

(v) award the costs of this writ petition to  the petitioner."

6.      The said writ petition came to be listed before the  Division Bench of the High Court on 19.04.1999 when the  following order was recorded by the Bench:- "Present Shri W.R. Dua, Advocate for the  petitioner.

After making some submissions, Shri  Dua requested that he may be allowed to  withdraw this petition with liberty to the  petitioner to make appropriate  application for grant of relief in CWP

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No.2890 of 1997 decided on 31.8.1998.

We accepted the request of the learned  counsel and dismiss the writ petition as  withdrawn with liberty as prayed for."

7.      It appears from the record that the respondent thereafter  filed an application under Section 151 of the Code of Civil  Procedure being Civil Miscellaneous No.10362/99 dated  29.04.1999 in CWP No.2890/97, which was already dismissed  by the Division Bench on 31.08.1998 with costs of Rs.5,000/-.   In the said application, the respondent has claimed retiral  benefits under Rule 6.16(2) of the Punjab Civil Service Rules  Vol. II.  The application was, however, allowed by the Division  Bench vide Order dated 19.07.2002 and the appellants were  directed to pay pension to the respondent within a period of  three months. 8.       Being aggrieved against the impugned order dated  19.07.2002, the State of Haryana through Secretary to the  Government, Haryana Transport Department; (Appellant  No.1), The Transport Commissioner, Haryana; (Appellant  No.2), The General Manager, Haryana Roadways, Faridabad;  (Appellant No.3) and the Accountant General, Haryana,  (Appellant No.4) have filed this appeal by special leave. 9.      We have heard Mr. P. S. Patwalia, Senior Advocate, and  Mr. Manjit Singh, Additional Advocate General appearing for  the appellants and Mrs. Namita Sharma, learned counsel for  the respondent in detail. 10.     In the midst of the hearing of this appeal on 08.08.2007,  this Court felt it necessary to summon the original record of  application (CM No.10362/99 in CWP No.2890/97) from the  Registry of the Punjab and Haryana High Court.  On receipt of  the original record, the parties were heard further.  An  argument advanced by Mr. Patwalia, Senior Advocate, before  us was that after dismissing the first Writ Petition No.2890/97  filed by the respondent, with costs for the highly  contumacious conduct of the respondent for producing  fabricated documents, the High Court has become functus  officio and, therefore, C.M. No. 10362/1999 filed by the  respondent under Section 151 CPC was not maintainable nor  any relief could have been granted to the respondent by the  High Court.  He next submitted that the High Court failed to  appreciate that the service conditions of the respondent are  governed by the Punjab Civil Services Rules, 1952 (for short  "PCS Rules") Vol. II Part-1, whereunder the respondent before  seeking voluntary retirement has to complete 20 years’ of  qualifying service for getting pension and admittedly he has  not fulfilled the essential criteria, therefore, the impugned  order of the High Court granting pension to the respondent is  in violation of the rules and cannot be sustained on this  ground as well. 11.     Mrs. Namita Sharma, Advocate, resisting the above  submissions, argued that this Court should be slow in  interfering with the well-reasoned judgment of the High Court  based upon the proper appreciation of the facts in issue and  law.  She contended that it was the duty of the appellants to  ensure compliance of the statutory rules which enjoin upon  them the duty to see that once the respondent has been  permitted to proceed on voluntary retirement and in fact he  was so retired, it is no longer open to the appellants to tell him  that he has put in less than 20 years of service and on that  account he was not entitled to any pension.     12.     In support of this contention, Mrs. Sharma has relied on  the judgments passed by the learned Single Judge and  Division Bench of the Punjab and Haryana High Court in the

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following cases;- (i)        Ganga Bishan v. State of Haryana  [1994 (3) Service Cases Today 153];

(ii)       Ramesh Chand Kaushik v. State of  Haryana [1994 (3) Recent Services  Judgments 792 (D.B.)];  

(iii)   Nishan Singh v. Transport  Commissioner [1994 (3) Recent Services  Judgments 519]; and

(iv)    Manorama Rani v. The Secretary to  Government of Punjab, Education  Department and Ors. [2000 (3) Recent  Services Judgments 89]"

13.   Having gone through the above-said decisions of the  learned Judges of the Punjab and Haryana High Court, we are  of the view that the decisions turned upon the facts of those  cases and cannot be held to be binding precedent in the facts  and circumstances of the present case.  In the present case, it  is not in dispute that the services of the respondent were  governed under PCS Rules.    Chapter V of the PCS Rules Vol.  II deals with different kinds of pensions.  Rule 5.1 of Section I  prescribes four classes of pensions, namely, (a) Compensation  Pensions (See Section II); (b) Invalid Pensions (See Section III);  (c) Superannuation Pensions (See Section IV) and (d) Retiring  Pensions (See Section V).  Rule 6.1 in Chapter VI deals with  amount of pensions that may be granted to the employee on  the basis of determination of length of service.  In the case of  the respondent, the rule for the grant of retiring pension is  covered by Rule 5.32-B which reads as under:-    "5.32-B. (1) At any time a Government  employee has completed twenty years’  qualifying service, he may, by giving  notice of not less than three months in  writing to the appointing authority, retire  from service.  However, a Government  employee may make a request in writing  to the appointing authority to accept  notice of less than three months giving  reason therefor.  On receipt of a request,  the appointing authority may consider  such request for the curtailment of the  period of notice of three months on merits  and if it is satisfied that the curtailment  of the period of notice will not cause any  administrative inconvenience, the  appointing authority may relax the  requirement of notice of three months on  the condition that the Government  employee shall not apply for commutation  of a part of his pension before the expiry  of the period of notice of three months.

(2) The notice of voluntary retirement  given under sub-rule (1) shall require  acceptance by the appointing authority  subject to rule 2.2 of Pb. C.S.R. Vol.II:

Provided that where the appointing  authority does not refuse to grant the  permission for retirement before the

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expiry of the period specified in sub-rule  (1) supra, the retirement shall become  effective from the date of expiry of the  said period:

Provided further that before a  Government employee gives notice of  voluntary retirement with reference to  sub-rule (1) he should satisfy himself by  means of a reference to the appropriate  authority that he has, in fact, completed  twenty years service qualifying for  pension. \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005"

14.  The respondent has averred in the application under  Section 151, CPC, that he is entitled to get pension under Rule  6.16(2) of the Rules because as on the date of voluntary  retirement, he had completed more than ten years service.     The Division Bench of the High Court granted the relief of  pension to the respondent by giving him benefit of Rule 6.16(a)  of PCS Rules in view of the earlier two decisions of the High  Court in Ganga Bishan v. State of Haryana [1994 (3) SCT 154  P & H; and Manorama Rani v. The Secretary to Government  Punjab, Education Department & Ors. [1994 (3) RSJ 89. 15.    We find from the record that the claim of the respondent  for the grant of retrial pension has been considered by the  competent authority under Rule 5.32-B of PCS Rules,  whereunder the respondent has to complete 20 years’  qualifying service before seeking voluntary retirement from  service.  Proviso (2) to Rule 5.32-B emphasizes that before a  Government  employee gives notice of voluntary retirement  with reference to sub-rule (1) he should satisfy himself by  means of a reference to the appropriate authority that he has,  in fact, completed twenty years service qualifying for pension.   It is not in dispute that the respondent has been given the  benefits of military service towards seniority, gratuity and  other benefits including military pension and therefore, the  High Court was not justified in extending the benefit of Rule  6.16(1) of the PCS Rules to the respondent.   16.  As noticed above, the respondent has not chosen to seek  the benefit of pension in terms of Rule 6.16 (2) of the PCS  Rules Vol. I in the first writ petition No.2890/97, which was  dismissed by the Division Bench with costs for the aforesaid  reasons.  In the said writ petition, second prayer made by the  writ petitioner (respondent herein) was to issue a writ of  mandamus directing the respondents-authorities (appellants  herein)  to take back the writ petitioner into service in order to  complete 20 years qualifying service for the purpose of  pension, gratuity, etc.  This prayer of the writ petitioner would  clearly indicate that his claim for the grant of pension in the  case of voluntary retirement is squarely covered by Section  5.32-B of the PCS Rules and not under Rule 6.16(1) of the  Rules as held by the High Court. Undisputedly, the  respondent has not completed 20 years qualifying service  before he sought voluntary retirement on 09.02.1997 and his  request was accepted by the competent authority on  19.06.1996 with immediate effect.  The Division Bench of the  High Court in its order dated 31.08.1998 passed in CWP  No.2890/07 found that the respondent in his application  seeking voluntary retirement had pleaded inability to serve the  Roadways due to illness and adverse family condition and in  the application, he did not incorporate any condition that his  request should be accepted only if he was found entitled to

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earn pension on the basis of the entire period of service.  The  document seeking voluntary retirement produced by the  respondent before the Division Bench was held to be  fabricated for which the respondent was penalized by the High  Court by imposing cost of Rs.5,000/- when his writ petition  was dismissed.  The second writ petition No. 4619/99 filed by  the respondent seeking retrial benefits, i.e. pension, gratuity,  commutation of pension w.e.f. 13.06.1996 and revised pay  scales, revised pension, revised gratuity, etc. w.e.f. 01.01.1996  in view of the acceptance of recommendation of the Fifty Pay  Commission by the State Government in February 1998, with  interest at the rate of 18% per annum, was allowed to be  withdrawn by the Division Bench of the High Court vide Order  dated 19.04.1999  and relief of pension has been granted to  the respondent in C.M. No. 10362/199 vide order impugned in  this appeal, which is wholly unsustainable and against the  provisions of the statutory rules governing the service  conditions of the respondent.   17.  The High Court’s order is not sustainable for yet another  reason.  As noticed above, first Writ Petition No. 2890/97 was  dismissed with costs for the highly contumacious conduct of  the respondent for producing a fabricated document in regard  to seeking of unconditional voluntary retirement from the  service.  We may again repeat that no claim for pensionary  benefits was made by the respondent in Writ Petition No.  2890/1997 nor has he applied for review of the order dated  31.08.1998 whereby his petition was dismissed. Thus, the  order dated 31.08.1998 passed by the Division Bench of the  High Court in CWP No.2890 of 1997 has attained finality.  It is  well-settled that the relief granted by the courts must be seen  to be logical and tenable within the framework of the law and  should not incur and justify the criticism that the jurisdiction  of the courts tends to degenerate into misplaced sympathy,  generosity and private benevolence.  It is essential to maintain  the integrity of the legal reasoning and the legitimacy of the  conclusions.  The possession of powers under Section 151,  CPC, by the Courts, itself is not sufficient, it has to be  exercised in accordance with law.  The orders of the Courts  must emanate logically from legal findings and the judicial  results must be seen to be principled and supportable on  those findings. 18.     In State of Uttar Pradesh v. Brahm Dutt Sharma & Anr.  [(1987) 2 SCC 179], this Court recorded a note of caution that  when proceedings under Article 226 of the Constitution of  India stand terminated by final disposal of writ petition, it is  not open to the Court to reopen the proceedings by means of a  miscellaneous application.  Paragraph 10 (page 187) of the                                                                                                                        decision reads as under:- "10. The High Court’s order is not  sustainable for yet another reason.   Respondents’ writ petition challenging the  order of dismissal had been finally  disposed of on August 10, 1984,  thereafter nothing remained pending  before the High Court.  No miscellaneous  application could be filed in the writ  petition to revive proceedings in respect  of subsequent events after two years.  If  the respondent was aggrieved by the  notice dated January 29, 1986 he could  have filed a separate petition under  Article 226 of the Constitution  challenging the validity of the notice as it  provided as separate cause of action to

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him.  The respondent was not entitled to  assail validity of the notice before the  High Court by means of a miscellaneous  application in the writ petition which had  already been decided.  The High Court  had no jurisdiction to entertain the  application as no proceedings were  pending before it.  The High Court  committed error in entertaining the  respondent’s application which was  founded on a separate cause of action.   When proceedings stand terminated by  final disposal of writ petition it is not  open to the court to reopen the  proceedings by means of a miscellaneous  application in respect of a matter which  provided a fresh cause of action.  If this  principle is not followed there would be  confusion and chaos and the finality of  proceedings would cease to have any  meaning."                                  [Emphasis supplied]

19.     In our view, it would be in the fitness of things to follow  the aforesaid principle as laid down by this Court in the case  of Brahm Dutt Sharma (supra) in the facts and circumstances  of the instant case.  The High Court, therefore, was not  justified in granting relief to the respondent in a proceeding  under Section 151, CPC, filed in the decided writ petition.   20.     In the result, for the aforesaid reasons the impugned  order dated 19.07.2002 passed by the Division Bench of the  High Court in CM No.10362/99 in CWP No.2890/97 stands  set aside and the said application is, accordingly, dismissed.   The appeal shall stand allowed accordingly.  In the facts and  circumstances of the case, we leave the parties to bear their  own costs.