State
of Haryana & Ors Vs. Babu Singh [2007] Insc
1183 (27 November 2007)
H.
K. Sema & Lokeshwar Singh Panta
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 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 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 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 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 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.
"
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 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 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.
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