IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA, CHANDIGARH
Date of decision: 07.01.2009
L.P.A. No.181 of 2003 in
C.W.P.No.11126 of 1998
State of Punjab and others ....Petitioner(s)
Versus
Mehar Singh ...Respondent(s)
Present: Mr. A.S. Grewal, Addl.A.G, Punjab for the appellants.
Mr. Amit Chopra, Advocate for the respondent.
AND
C.W.P.No.13401 of 2004
Nirmaljit Kaur ....Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. Amit Chopra, Advocate for the petitioner.
Mr. A.S. Grewal, Addl.A.G, Punjab for the respondents.
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JASWANT SINGH
JASWANT SINGH,J
This judgment shall dispose of LPA No.181 of 2003 titled State
of Punjab and others v. Mehar Singh and CWP No.13401 of 2004 titled
Nirmaljit Kaur v. State of Punjab and others as common questions of facts
and law are involved in the same.
L.P.A.No.181 of 2003
In this Letters Patent Appeal, the facts are that respondent
Mehar Singh was appointed as Science Master in the Education Department
with the State of Punjab on 1.2.1983. After serving in various schools of
the State of Punjab for more than 12 years, he submitted his resignation
from service. His resignation was not accepted, therefore, he filed a writ
petition bearing CWP No.3570 of 1996 praying for acceptance of his
resignation and ultimately the same was accepted vide order dated
17.6.1996 (Annexure P.1) with effect from 5.9.1995. On his being denied
gratuity and other pensionary benefits due to his resignation from service,
L.P.A. No.181 of 2003 and #2#
C.W.P.No.13401 of 2004
the respondent Mehar Singh filed a writ petition bearing CWP No.11126 of
1998. Learned Single Judge by relying upon judgments of this Court
reported as 1994 (4) SLR, 59 Ganga Bishan v. State of Haryana, and
2002(4) RSJ, 440 State of Punjab v. Gurkeerat Singh,, allowed the writ
petition and held that since the petitioner Mehar Singh-respondent herein
had resigned after putting in more than 10 years of service, he is entitled to
pension and other retiral benefits as premature retirement from service and
voluntary resignation from service will have the same effect i.e one is
retiring. Learned Single Judge further directed the appellant-State of Punjab
to pay interest @ 9% per annum on the amount payable w.e.f 1.8.1998 till
its payment and further the payment was to be made within six months from
the receipt of copy of this order. Hence the present appeal has been filed by
the appellant-State of Punjab for setting aside the impugned judgment dated
3.12.2002 passed by the learned Single Judge.
C.W.P.No.13401 of 2004
Petitioner-Nirmaljit Kaur was born on 20.1.1953 and after
acquiring qualification of Bachelor of Physical Education, she was selected
and appointed as DPE in the Master cadre with the Punjab Education
Department and joined her duty on 1.1.1979 in the pay scale of Rs.220-
500/-. After serving for more than 12 years, the petitioner due to
unavoidable family circumstances resigned from service. Her resignation
was accepted with effect from 20.3.1991 by the competent authority vide
order dated 5.3.1991 (Annexure P.1) and consequently she was relieved
from service. It is alleged by the petitioner that under the Punjab Civil
Services, she is entitled for pension and other pensionary benefits on
completion of 10 years of qualifying service. It is further alleged that
despite number of representations, the claim of the petitioner for retiral
benefits was not considered by the respondents and ultimately a registered
notice dated 15.3.2004 was served upon them. Respondents-State of Punjab
filed their reply and denied the claim of the petitioner by raising a
preliminary objection on the ground that she had resigned from service and
her resignation was accepted and as per sub Rule (1) of Rule 7.5 of the
Punjab Civil Services (As applicable to Punjab), Volume I, Part I (For
L.P.A. No.181 of 2003 and #3#
C.W.P.No.13401 of 2004
short “PCS Rules”), resignation from service for a post entails forfeiture of
past service, therefore, she is not entitled for any pensionary benefits and
the writ petition is liable to be dismissed.
Thus in both the abovesaid cases, the question to be determined
is as to whether a government employee, who has resigned from service, is
entitled to grant of pension and other retiral benefits.
Learned counsel for the State of Punjab has argued that the
government employee, who resigns from service, is not entitled to grant of
pension and other retiral benefits in view of a specific Rule 7.5 (1) of the
PCS Rules entailing forfeiture of past service. It has been further argued
that in the judgments cited and relied upon by learned counsel on behalf of
the government employees, who had resigned from service and were held
entitled to grant of pension, the effect of Rule 7.5 (1) of the PCS Rules was
not considered. Learned counsel further relied on judgment of Hon’ble
Supreme Court reported as 2004(9) SCC 461 Reserve Bank of India and
another v. Cecil Dennis Solomon and Another, 2001(4) SCC 309, Union
of India and others v. Rakesh Kumar and (2005) 8 SCC, Union of India
and others v. Braj Nandan Singh, 325.
On the other hand, counsel for the government employee has
argued that the Government employees, on completion of 10 years of
qualifying service, are entitled to the grant of pension and other retiral
benefits in view of Rule 6.16 (2) of PCS Rules and the law laid down by
learned Single Benches of this Court in judgments reported as 1994 (4)
SLR Ganga Bishan v. State of Haryana 59, 2002(4) RSJ State of Punjab
v. Gurkeerat Singh 440, 1998(4) SCT Jagdish Mitter v. State of Punjab
157, 2002(4) SCT State of Haryana and another v. Madan Pal Ahlawat
and a Division Bench Judgment reported as 1997(4) SCT Shagara
Singh v. State of Punjab 532.
We have heard learned counsel for the parties.
Before we proceed any further, it is necessary to reproduce Sub
Rules (1) & (2) of Rule 7.5 of the PCS Rules relating to forfeiture of service
on resignation. Relevant extracted Rules are reproduced below:
7.5(1) Resignation from a service or a post, unless it is allowed
to be withdrawn in public interest by the appointing authority,
entails forfeiture of past service.
L.P.A. No.181 of 2003 and #4#
C.W.P.No.13401 of 2004
(2) A resignation shall not entail forfeiture of past service if
it has been submitted to take up, with proper permission,
another appointment, whether temporary or permanent, under
the Government where service qualifies for pension.
(3) xx xx xx
(4) xx xx xx
(5) xx xx xx
(6) xx xx xx
A bare reading of Sub Rule (1) of Rule 7.5 of the PCS Rules
reveals that a resignation from service for a post once accepted entails
forfeiture of past service. A reading of Sub Rule (2), which is in the nature
of an exception, reveals that the resignation shall not entail forfeiture of
past service, if it has been submitted to take up, with proper permission,
another appointment, whether temporary or permanent, under the
Government where service qualifies for pension.
It is also pertinent to mention here that the grant of pension is
regulated by the Rules contained in Part I of Volume-II of the Punjab Civil
Services Rules (As applicable to Punjab). Chapter II to Chapter VI of the
same relates to grant of ordinary pensions, which are relevant for the
discussion herein. Chapter II provides for general provisions relating to
grant of pension. Chapter III provides for conditions of qualifying service
for pension namely the service must be under the Government and on
substantive and permanent basis and it must be paid by the Government.
Chapter IV provides for period of reckoning of service of pension and
Chapter V lays down the different kinds of pension namely compensation
pension, invalid pension, superannuation pension and retiring pension and
the conditions of their grant. Chapter VI provides for determination of the
amount of pension
Now, so far as the cases cited and relied upon on behalf of the
employees are concerned, these are as under:
In Ganga Bishan’s case (supra), the petitioner was permitted
to retire as Sweeper from the Directorate of Animal Husbandry, Haryana
w.e.f May 31, 1990 after rendering 18 years, 5 months and 15 days of
service and the question framed in that case was, whether the petitioner was
L.P.A. No.181 of 2003 and #5#
C.W.P.No.13401 of 2004
entitled to pension and gratuity etc for the period for which he had already
served the Department. This was answered by the learned Single Judge in
the affirmative and he was held entitled to the grant of pension in view of
the provisions of Rule 6.16 (2) as contained in Chapter VI of the Punjab
Civil Services Rules (As applicable to Haryana), Volume II, Part I and he
was held entitled to the grant of gratuity etc in accordance with the Rules
and the objection of the respondents that he was not entitled to pension and
gratuity as he had not completed 12 years of qualifying service, was not
sustained.
In Gurkeerat Singh’s case(supra), a government employee
submitted his resignation on 18.2.1975 after putting in 19 years and 04
months of service as Constable and after relying on Ganga Bishan’s case
(supra), it was held by the learned Single Judge in the Regular Second
Appeal that a person becomes entitled to the grant of pension on completion
of 10 years of qualifying service and the RSA of the State of Punjab was
dismissed.
In Jagdish Mitter’s case (supra), the petitioner was appointed
as Patwari in February 1944 and after partition of the country in 1947, he
was promoted as Clerk. After putting in service almost 22 years, he took
voluntary retirement in 1966 while working in the office of D.C, Gurdaspur.
Learned Single Judge held that the petitioner was entitled to pension on
account of his having completed 22 years of service and the respondent-
Government of Punjab having accepted his request for voluntary retirement.
It is, thus, clear that Jagdish Mitter’s case (supra) is a case of voluntary
retirement.
In Madan Pal Ahlawat’s case (supra), an employee filed a
suit for seeking declaration to the effect that he is entitled to retirement
pension and gratuity on the basis of 11 years, 5 months and 15 days of
service rendered by him. After relying upon Ganga Bishan’s case (supra),
and another Single Bench Judgment of this Court in case of Haryana State
v. Ex-Constable Jai Singh vide RSA No.2682 of 2001, decided on
26.9.2001, learned Single Judge held that the government employee, who
had resigned after completion of more than 10 years of service was entitled
L.P.A. No.181 of 2003 and #6#
C.W.P.No.13401 of 2004
to proportionate pension as provided under Rule 6.16 Sub Rule (2) of the
Punjab Civil Services.
In Shagara Singh’s case (supra), petitioner Shagara Singh
was working in a government aided school. His conditions of service were
governed by the provisions of the Punjab Privately Managed Recognized
Schools Employees (Security of Service) Act, 1979 and the Punjab
Privately Managed Recognized schools Employees (Security of Service )
Rules, 1981. He sought voluntary retirement after rendering more than 23
years of service. His claim for pension and other benefits was denied on the
ground that he had resigned and had not retired from service on account of
his failing eye sight and in exercise of the powers conferred by the Act and
the Rules, the Government of Punjab had promulgated a Retiral Benefits
Scheme and the petitioner had exercised his option for pension under the
framed scheme. In that case, respondents had invoked the provisions of
Rule 7.5 (1) of the PCS Rules to deny the grant of pension and other retiral
benefits on the ground that the petitioner had resigned from service. A
Division Bench of this Court found that the petitioner had rendered more
than 23 years of service and treated him as having actually resigned as was
clear from the entries in his service book. The Court further held that there
is no rule for reading aforesaid Rule 7.5 of the PCS Rules into the Retiral
Pension Scheme meant for the employees of the aided schools and in these
facts and circumstances, the writ petition was allowed holding that the
petitioner, on account of his more than 23 years of service, was held entitled
to grant of pension and gratuity etc.
From the above discussion, it can be seen that in the judgments
of the learned Single Judges in Ganga Bishan’s case (supra), Gurkeerat
Singh’s cae (supra) and Madan Pal Ahlawat’s case (supra), the effect of
Sub Rule (1) of Rule 7.5 of the PCS Rules was not considered at all and
therefore, the said judgment cannot be of any assistance to the case of
respondent Mehar Singh in the letters patent appeal and the petitioner-
Nirmaljit Kaur in the writ petition.
In Jagdish Mitter’s case(supra), the facts are distinguishable
as it was a case of voluntary retirement besides the fact that effect of Rule
L.P.A. No.181 of 2003 and #7#
C.W.P.No.13401 of 2004
7.5 of the PCS Rules was not considered in that case, therefore, this
judgment is also not of much assistance to the cause of the government
employees. In Shagara Singh’s case (supra), the facts are clearly
distinguishable from the present two cases and therefore, the said judgment
cannot be relied upon.
In Reserve Bank of India’s case(supra) relied upon by the
State of Punjab, respondents were employees of the Reserve Bank of India
and were working in various capacities. They rendered their resignation in
1988. Subsequent to their resignation, Pension Regulations came to be
operative in the year 1990. By the said Pension Regulations, prescriptions
were made for granting pension to certain categories of employees.
Regulation 2(12) provided that retirement means retirement in terms of the
Regulation 26 of the Reserve Bank of India (Staff Regulation), 1948 and
Regulation 18 thereof provided forfeiture of service on resignation or
dismissal or termination. Regulation 26 of the Staff Regulation, 1948 was
amended w.e.f 7.2.1992 and (3-A) and (3-B) were added, which provided
that an employee, on completion of 20 years of service, could seek
voluntary retirement and the same to be valid was required to be accepted
by the competent authority. The employees, who had since rendered
resignation on completion of 20 years of service, though not completed 50
years of age and were ineligible in view of Regulation 18 of the Pension
Regulations, which entailed forfeiture of resignation, filed writ petitions
before the High Court questioning the legality of Regulation 18 of the
Pension Regulations for grant of pension and claiming benefit under the
amended Regulations (3-A) of the Regulation 26 of the Staff Regulation,
1948. Writ petitions were allowed by the High Court and the appeals filed
by the Reserve Bank were allowed by the Hon’ble Supreme Court thereby
dismissing writ petitions filed by the employees. It was held by the Hon’ble
Supreme Court in paras 9 and 10 that under Regulation 26 of the Staff
Regulation, four types of retirements were contemplated i.e (a) retirement
on superannuation (b) compulsory retirement on invalidation © compulsory
retirement and (d) voluntary retirement. Resignation did not fit into any of
these categories. It was further held that voluntary retirement and
resignation involve voluntary acts on the part of employee to leave service
L.P.A. No.181 of 2003 and #8#
C.W.P.No.13401 of 2004
but they operate differently as resignation can be tendered at any time but in
the case of voluntary retirement, it can only be sought after rendering
prescribed period of qualifying service. It was further laid down that in the
case of resignation, normally retiral benefits are being denied but in the case
of voluntary retirement, the same are admissible.
In Rakesh Kumar’s case (supra), respondent Rakesh Kumar
was a member of the Border Security Force and he resigned from service
under Rule 19 of the BSF Rules, 1969 after serving for more than 10 years
but less than 20 years. For grant of pension, members of BSF are governed
by CCS (Pension) Rules. Contention was raised on behalf of the employees
that they were entitled to grant of pension in view of Rule 49 (2)(b) of
(Pension) Rules, which provided that qualifying service for getting pension
was 10 years; and further in view of the GOI and MHA General order dated
27.12.1995 intrepretting Rule 19 of the BSF Rules 1969 to imply that in
case of acceptance of any resignation of an employee after a lapse of 10
years of service, he is entitled to get pension. Hon’ble Supreme Court
rejected the case of the employees and held in paras 16 and 20 of the
judgment that members of BSF, who had resigned from service, were not
entitled to any pension if they were not otherwise entitled to get pension
under CCS (Pension) Rules. It was held that Rule 49 (2)(b) only covered
cases of Government Servants, who retire on superannuation after the
prescribed age, voluntary retirement after 20 years of qualifying service and
such other cases as provided under the Rules. It was further held that the
circular dated 27.12.1995 was only applicable to members of BSF, who
were otherwise entitled to get pensionary benefits under the CCS Rules.
The Hon’ble Supreme Court categorically held that the respondents, who
had resigned from service, were not entitled to grant of any pension in view
of Rule 26 of CCS (Pension) Rules specifically providing forfeiture of past
service upon resignation.
In Braj Nandan’s case (supra), respondent Braj Nandan Singh
was serving as temporary Sorter in the Railway Mail Service, ‘U’ Division,
Muzaffarpur with effect from 14.10.1959 and he tendered his resignation on
16.5.1977 to contest the election to the Bihar Legislative Assembly and his
resignation was accepted vide letter dated 17.5.1977 and in that case Sub
L.P.A. No.181 of 2003 and #9#
C.W.P.No.13401 of 2004
Rules (1) & (2) of Rule 26 of the Central Civil Services (Pension) Rules,
1972 (For short “Central Civil Services”) were under consideration, which
provided forfeiture of past service on resignation. The language of Sub
Rules (1) and (2) of Rule 26 of the Central Civil Services as para materia to
Sub Rules (1) and (2) of Rule 7.5 of the PCS Rules and after examining the
provisions of Rules (1) and (2) of Regulation 26, it was held by the Hon’ble
Supreme Court in paras 5 & 6 of the judgment that after acceptance of the
resignation, the past service stands forfeited. Consequently, the appeal filed
by the Union of India was accepted and the judgment of the High Court
affirming the order of Tribunal was set aside. Relevant paras 5 & 6 are
reproduced below:
“5. In order to appreciate rival submissions Rule 26 which is the
pivotal provision needs to be quoted. The same reads as under:
“26. Forfeiture of service on resignation -(1) Resignation from a
service or a post, unless it is allowed to be withdrawn in the
public interest by the appointing authority, entails forfeiture of
past service.
(2) A resignation shall not entail forfeiture of past service if it
has been submitted to take up, with proper permission, another
appointment, whether temporary or permanent, under the
Government where service qualifies.”
Rule 26 as the heading itself shows relates to forfeiture of service
on resignation. In clear terms it provides that resignation from a
service or a post, unless it is allowed to be withdrawn in the
public interest by the appointing authority, entails forfeiture of
past service. The language is couched in mandatory terms.
However, sub-rule (2) is in the nature of an exception. It
provides that resignation shall not entail forfeiture of past service
if it has been submitted to take up, with proper permission,
another appointment, whether temporary ot permanent, under the
Government where service qualifies. Admittedly this is not the
case in the present appeal. Rule 5 on which great emphasis was
laid down by the learned counsel for the respondent deals with
regulation of claims to pension or family pension. Qualifying
service is dealt with in Chapter III. The conditions subject to
L.P.A. No.181 of 2003 and #10#
C.W.P.No.13401 of 2004
which service qualifies are provided in Rule 14. Chapter V deals
with classes of pensions and conditions governing their grant.
The effect of Rule 26 Sub-rules (1) and (2) cannot be lost sight of
while deciding the question of entitlement to pension. The High
Court was not justified in its conclusion that the rule was being
torn out of context. After the past service is forfeited the same
has to be excluded from the period of qualifying serviuce. The
language of Rule 26 sub-rules (1) and (2) is very clear and
unambiguous. It is trite law that all the provisions of a stature
have to be read together and no particular provision should be
treated as superfluous. That being the position after the
acceptance of resignation, in terms of Rule 26 sub-rule (1) the
past service stands forfeited. That being so, it has to be held that
for the purpose of deciding question of entitlement to pension the
respondent did not have the qualifying period of service. There is
no substance in the plea of the learned counsel for the respondent
that Rule 26 sub-rules (1) and (2) has limited operation and does
not wipe out entitlement to pension as quantified in Rule 49. The
said rule deals with amount of pension and not with entitlement.
6. It is well-settled principle in law that the court cannot read
anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislative. The
language employed in a statute is the determinative factor of
legislative intent.”
In view of the aforesaid legal position settled by the Hon’ble
Supreme Court, it is held that a government employee, who has resigned
from service, is not entitled to grant of pension and other retiral benefits in
view of Rule 7.5 of PCS Rules.
Still further, in our opinion, provisions of Rule 6.16 (2) of the
Punjab Civil Services Rules, as relied upon in the judgment on behalf of the
employee/government servant lays down the amount of pension admissible
to a government employee, who has retired from service, and does not
confer an independent right to claim pension. We find that the reference to
Rule 6.16(2) of the Punjab Civil Services Rules in the judgments relied
upon on behalf of the employee/government servant is provided in the
L.P.A. No.181 of 2003 and #11#
C.W.P.No.13401 of 2004
Rules applicable in the State of Haryana only. Thus reference to Rule 6.16
(2) of the Punjab Civil Services Rules on behalf of the respondent Mehar
Singh in the letters patent appeal and the petitioner Nirmaljit Kaur in the
writ petition for grant of pension on completion of 10 years service is totally
misplaced, as in the Punjab Civil Services Rules applicable to State of
Punjab, there is no Rule 6.16(2) and it only exists in the State of Haryana.
In view of the above discussion, the appeal filed by the
appellant-State of Punjab is allowed, the judgment dated 3.12.2002 passed
by the learned Single Judge is set aside and the writ petition bearing CWP
No.11126 of 1998 filed by Mehar Singh is dismissed. Writ Petition bearing
CWP No.13401 of 2004 filed by the petitioner Nirmaljit Kaur is dismissed
with no order as to costs.
( JASWANT SINGH )
` ` JUDGE
January 7th , 2009 ( SATISH KUMAR MITTAL )
manoj JUDGE