CWP No. 14059-CAT of 2004 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 14059-CAT of 2004
Date of Decision: 08 -07-2008
Surjit Singh .....Petitioner
Versus
Union of India and others .....Respondents
Coram: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE AJAY TEWARI
Present: Shri J.S. Manipur, Advocate, for the petitioner.
Ms. Madhu Dayal, DAG, Punjab.
Shri Rajiv Sharma, Advocate, for Union of India.
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
The challenge in the present writ petition is to the order
dated 19.5.2004 (Annexure P.2) passed by the Central Administrative
Tribunal, Chandigarh Bench, Chandigarh ( for short `the Tribunal’),
whereby an Original Application filed by the petitioner claiming
pensionary benefits, after his resignation as clerk from Chandigarh
Administration, was declined.
The petitioner joined Chandigarh Administration as clerk
with effect from 10.3.1970. He was promoted as Assistant in the year
1977. He submitted his resignation in October, 1982 and was relieved
on 2.11.1982. It was on 13.2.2003 i.e. after more than 20 years, the
petitioner gave a legal notice for grant of pension under the Punjab Civil
Services Rules. It was contended that since he has rendered more than
CWP No. 14059-CAT of 2004 (2)
12 years of service, therefore, he is entitled to the pensionary benefits on
completion of 10 years of service irrespective of the fact whether he
has resigned from the service. The learned Tribunal relied upon Union
of India vs. Rakesh Kumar, 2001 SCC 1082 and Reserve Bank of
India vs. Cecil Dennis Solomon, 2004(1) SLR 431 (SC), to hold that
in case of resignation, the employee is not entitled to pensionary
benefits. It is the said order, which is under challenge in the present
writ petition.
Learned counsel for the petitioner has contended that Rule
26 of the Punjab Civil Services (Pension) Rules, 1972 stipulates of
forfeiture of the past service, whereas while interpreting somewhat
similar Rules, a Single Bench of this Court in CWP No. 11126 of 1998
decided on 3.12.2002 (Mehar Singh v. State of Punjab and others) has
held that an employee, who has put in more than 10 years of service, is
entitled to pension and other retiral benefits, as premature retirement
from service and voluntary resignation from service will have the same
effect. The counsel for the petitioner has also relied upon a short order
passed by the Division Bench judgment of this Court in CWP No. 10283
of 2003 decided on 11.4.2005 (Anant Ram v. The Punjab State
Electricity Board, Patiala and others) following the earlier judgment in
Mehar Singh’s case (supra). as well as the order passed by a Division
Bench of this Court in Om Parkash v. Financial Commissioner and
Principal Secretary to Government of Haryana and another, 2007(2)
RSJ 785.
We have heard the learned counsel for the parties at length,
but do not find any merit in the present writ petition. Rule 26 of the
Central Civil Services Pension Rules, 1972 (hereinafter referred to as `the
Rules’) contemplates forfeiture of the past services in case of
resignation. The judgments referred to by the learned counsel for the
CWP No. 14059-CAT of 2004 (3)
petitioner rely upon Rule 49 of the Rules, which deals with the amount
of pension, wherein it has been provided that on completion of 10 years
of qualifying service, the amount of pension is contemplated to be
proportionate to the amount of pension permissible under Clause (a) of
Rule 49(2) of the Rules. The specific question of admissibility of
proportionate pension after the resignation, came up for consideration
before the Hon’ble Supreme Court in Union of India and others v.
Rakesh Kumar, (2001)4 SCC Page 309. In the said case, a member of
the Border Security Force, governed by the Rules, sought pension after
submitting resignation after completion of qualifying service of 10 years,
but before 20 years. While examining Rule 49 of the Rules, the Court
found that the argument that a member would be entitled to pension
on the completion of 10 years of qualifying service is without any basis.
Para No.16 of the judgment deals with the qualifying service as defined
under Rule 3(q). It was held to the following effect:-
“Further clause (2)(a) of Rule 49 specifically provides
for grant of pension if a government servant retires
after completing qualifying service of not less than 33
years. The amount of pension is to be calculated at
fifty per cent of average emoluments subject to
maximum provided therein. Clause(2)(b) upon which
much reliance is placed indicates that in case of a
government servant retiring in accordance with the
provisions of the Rules before completing qualifying
service of 33 years, but after completing qualifying
service of ten years, the pension shall be
proportionate to the amount of pension admissible
under clause 2(a) and in no case, the amount of
pension shall be less than Rs.375 per month. This
would only mean that in case where a government
servant retires on superannuation i.e. the age of
compulsory retirement as per service conditions or in
accordance with the CCS (Pension) Rules, after
completing 10 years of qualifying service, he would
CWP No. 14059-CAT of 2004 (4)get pension which is to be calculated and quantified
as provided under clause (2) of Rule 49. this clause
would cover cases of retirement under Rules 35 and
36, that is, voluntary retirement after 20 years of
qualifying service, compulsory retirement after the
prescribed age and such other cases as provided
under the Rules. However, this has nothing to do with
the quitting of service after tendering resignation. It is
also to be stated that Rule 26 of the CCS (Pension)
Rules specifically provides that resignation from a
service or post entails forfeiture of past service unless
resignation is submitted to take up, with proper
permission, another appointment under the Government
where service qualifies. Hence, on the basis of Rule 49
a member of BSF who has resigned from his post after
completing more than 10 years of qualifying service, but
less than 20 years would not be eligible to get
pensionary benefits. There is no other provision in the
CCS (Pension) Rules giving such benefit to such
government servants. (Emphasis Supplied)”
It may be mentioned here that the judgment in Rakesh
Kumar’s case (supra), has been followed by the Hon’ble Supreme Court
in Raj Kumar and others v. Union of India and another, (2006)1
Supreme Court Cases 737 in respect of the members of Border
Security Force. The aforesaid judgments of the Hon’ble Supreme Court
were followed by a Division Bench of this Court in Jang Bahadur and
another v. Union of India and others (CWP No. 10292 of 2007 decided
on 13.3.2008) and it has been held that the petitioners therein, having
submitted their resignation after 10 years of service, are not entitled to
pensionary benefits.
In view of the said judgment, the argument raised by the
learned counsel for the petitioner is without merit. The judgments
referred to by the learned counsel for the petitioner relate to
interpretation of Rule 49. Such interpretation is contrary to the Hon’ble
CWP No. 14059-CAT of 2004 (5)
Supreme Court’s judgment as referred to above. Therefore, the said
judgments no longer can be said to be a good law.
The judgment in Anant Ram’s case (supra) is
distinguishable, in as much as, in the said case, the petitioner has put
in 26 years of qualifying service. The binding principles of the Hon’ble
Supreme Court in Rakesh Kumar’s case (supra) were not brought to the
notice of the Court and, therefore, the same cannot be said to be binding
on this Court and is per-incuriam.
A Single Bench of this Court, in the judgment reported as
Bhim Raj Goyal v. State of Punjab and others, 2005(2) SLR 326, has
extensively examined the claim of pension on submission of resignation
and consequent forfeiture of service. In the said judgment, reliance has
been placed upon the Hon’ble Supreme Court judgment in Reserve
Bank of India v. Cecil Dennis Solomon, 2004(1) SLR 431 (SC) and
Uco Bank v. Sanwar Mal, 2004(3) SLR 629 (SC). The learned Single
Bench did not find any favour with the arguments raised by the
employees that all categories of employees, whether superannuating,
resigning, retiring prematurely or compulsorily, are required to be
treated as one category. It was held by the learned Single Judge, as
under:-
“However, in cases where an employee resigns from
service, he has to forfeit his qualifying service as has
been provided by Rule 7.5(1) of the Rules in Volume I
and Rule 3.17-A(1)(v) of the Rules in Volume II. An
employee attaining superannuation stands entirely in
a different class than an employee who after
exercising his own sweet will has preferred to cashier
his relationship with his employer. He has left the
employer in the mid sea without attaining
superannuation. There may be numerous reasons for
the employee to tender resignation which may include
better opportunities in a multi-national company or
CWP No. 14059-CAT of 2004 (6)entering in his own private business or going abroad
soon and so forth. The classification between the two
categories have been founded on intelligible differntia
which has a rational nexus to the object sought to be
achieved by permitting superannuated employee in
that class to earn pension. Those who resign by
exercising their desertion are deprived of pension. The
basis of the classification is that there is a class of
disciplined employees who wishes to serve till the age
of superannuation and the other class which wishes to
cashier its relationship with the employer pre-
maturely without waiting for the age of
superannuation to arrive. In order to maintain
discipline and a bureaucracy committed to the cause
of translating the hopes of founding father into action,
a safe tenure upto the age of superannuation has
been provided to those who maintain the discipline
and those who prefer to violate that discipline, cannot
claim the benefits.”
In view of the above, we are of the opinion that the petitioner
having submitted resignation after completion of 10 years of service, but
before completion of 20 years, is not entitled to any pension. Hence, the
present writ petition is dismissed.
(HEMANT GUPTA)
JUDGE
(AJAY TEWARI)
JUDGE
July 08 , 2008
ds