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Monday, April 7, 2014

Service matter - option given at the time bifurcation of Rajasthan - as per the option rules, the respondent ought to have retire at the age of 58 years, but he was forced to go on superannuation at the age of 55 years only - High court set aside the orders of trial court and appellate court and allowed the claim - Apex court held that once the State of Rajasthan, with the previous approval of the Central Government, gave an option to Respondent No.1 not confined to any particular age of retirement but to elect between Regulations and the Rules of 1951, Respondent No.1 cannot be subsequently deprived of the benefits of enhanced age of retirement accruing to him on account of amendments in the Regulations made in the year 1962 when Respondent No.1 was still in service. After that amendment in the Regulations, his retirement age legally became 58 years. = State of Rajasthan & Anr. …..Appellants Versus C.P. Singh & Ors. …..Respondents= 2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41386

Service matter - option given at the time bifurcation of Rajasthan - as per the option rules, the respondent ought to have retire at the age of 58 years, but he was forced to go on superannuation at the age of 55 years only - High court set aside the orders of trial court and appellate court and allowed the claim - Apex court held that once the State of Rajasthan, with the previous approval of the Central Government, gave an option to Respondent  No.1 not confined to any particular age of retirement but to elect  between Regulations and  the  Rules  of   1951,   Respondent  No.1  cannot  be subsequently deprived of the benefits of enhanced  age  of  retirement accruing to him on account of amendments in the  Regulations  made  in the year 1962 when Respondent No.1 was still in service.  After  that amendment in the Regulations, his retirement  age  legally  became  58 years.  =
By the impugned judgment, the  High  Court  allowed  the
      Second Appeal, set aside the judgment and decree  of  Trial  Court  as
      well as the First Appellate Court and decreed the Suit  of  Respondent
      No.1  (Plaintiff)  with  a  finding  that  Respondent  No.1  had  been
      illegally made to superannuate on 19.6.1974 at the age  of  55  years,
      as prescribed under the Rajasthan  Service  Rules,  1951  (hereinafter
      referred to as ‘the Rules of 1951’).  
The High Court has also declared
      that Respondent No.1 (Plaintiff) was entitled to continue  in  service
      upto the age of 58 years, i.e., the age  of  retirement  as  per   the
      Central  Civil  Service Regulations (hereinafter referred to  as  ‘the
      Regulations’).  The consequent benefits like pay, increments and other
      service  benefits  have  also  been   granted   to   Respondent   No.1
      (Plaintiff).=

 A careful appraisal of the wordings in Rule 11 of the  Rules  of  1957
      also supports the conclusions indicated above.  
 The  option  for  the
      rules applicable to the employee immediately before the appointed  day
      does not contain any restriction  that   the   option  shall   be   to
      such rules excluding the one providing for age of retirement  or  only
      as they stood on a particular day.  
The clause ‘immediately before the
      appointed day’ occurring after the clause ‘rules  applicable  to  him’
      clearly relates to the word ‘applicable’ and it cannot be read to mean
      the rules as ‘existing’ before the appointed day.  
The  elected  rules
      cannot be restricted for any  good  reasons  only  to  the  provisions
      existing in the past on  the  appointed  day  so  as  to  exclude  any
      amendment made in such rules  during  the  service  of  the  concerned
      employee.  
In fact, the  elected  pension  rules  are  to  govern  the
      concerned employee in future also. 
 If the Rules of 1951 will apply to
      the concerned employee who opts for the  same  along  with  amendments
      made in the future, there can be no rationality in the view  that  the
      other rules applicable  before  the  appointed  day  shall  apply  but
      without any amendments even when such amendments are made  during  the
      service period of the employee opting for the same.
  13. The Appellant-State of Rajasthan may be correct in its submission that
      the proviso to sub-section (7)  of  Section  115  of  the  States  Re-
      organisation Act, 1956 does not help Respondent No.1 directly  because
      the age of retirement under the Regulations even before the  appointed
      day  was  only  55  years  and  that  has  not  been  varied  to   his
      disadvantage.  
However, once the State of Rajasthan, with the previous
      approval of the Central Government, gave an option to Respondent  No.1
      not confined to any particular age of retirement but to elect  between
      Regulations and  the  Rules  of   1951,   Respondent  No.1  cannot  be
      subsequently deprived of the benefits of enhanced  age  of  retirement
      accruing to him on account of amendments in the  Regulations  made  in
      the year 1962 when Respondent No.1 was still in service.   
After  that
      amendment in the Regulations, his retirement  age  legally  became  58
      years.  
As discussed above, there is no good reason  to  take  a  view
      contrary to that of the High Court which has answered the  substantial
      question of law  involved  in  the  Second  Appeal  appropriately  and
      correctly.
  14. In the facts of the case, we find no merit in the Civil Appeal and  it
      is accordingly dismissed but without costs.

      2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41386
ANIL R. DAVE, SHIVA KIRTI SINGH
                                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1195 OF 2007

State of Rajasthan & Anr.                          …..Appellants

      Versus

C.P. Singh & Ors.                                        …..Respondents




                               J U D G M E N T



SHIVA KIRTI SINGH, J.

   1. State of Rajasthan has preferred  this  Civil  Appeal  to  assail  the
      judgment and  order  dated  19.3.2004  in  S.B.  Civil  Second  Appeal
      No.136/1995.  By the impugned judgment, the  High  Court  allowed  the
      Second Appeal, set aside the judgment and decree  of  Trial  Court  as
      well as the First Appellate Court and decreed the Suit  of  Respondent
      No.1  (Plaintiff)  with  a  finding  that  Respondent  No.1  had  been
      illegally made to superannuate on 19.6.1974 at the age  of  55  years,
      as prescribed under the Rajasthan  Service  Rules,  1951  (hereinafter
      referred to as ‘the Rules of 1951’).  The High Court has also declared
      that Respondent No.1 (Plaintiff) was entitled to continue  in  service
      upto the age of 58 years, i.e., the age  of  retirement  as  per   the
      Central  Civil  Service Regulations (hereinafter referred to  as  ‘the
      Regulations’).  The consequent benefits like pay, increments and other
      service  benefits  have  also  been   granted   to   Respondent   No.1
      (Plaintiff).
   2. The essential facts relevant for deciding the  issue  raised  in  this
      appeal are not in dispute as indicated hereinafter.   Respondent  No.1
      (Plaintiff) was appointed initially in the  State  of  Ajmer  and  was
      governed by service conditions in the Regulations.  The State of Ajmer
      was a Centrally Administered Part ‘C’ State till its integration  with
      the  State  of  Rajasthan  w.e.f.  01.11.1956.   Respondent  No.1  was
      absorbed in the services of the State of Rajasthan from that  date  as
      Cane Development Assistant.  Thus, his service  at  the  time  of  re-
      organisation came to be governed  generally  by  Rules  of  1951.   As
      provided under these Rules, Respondent No.1  was  made  to  retire  on
      attaining the age of 55 years on 19.6.1974.
   3. Respondent No.1 filed Suit No.89/1976 at Jaipur claiming that  he  was
      illegally retired at the age of 55 years and also sought a decree that
      he is entitled  to  continue  in  service  till  30.6.1977  under  the
      Regulations  and  was  entitled  to  consequential  benefits  of  pay,
      increments, seniority, promotions etc.  On contest made by  the  State
      of Rajasthan, the Suit was dismissed with a finding that the  services
      of Respondent No.1 (Plaintiff) were governed  by  the  Rules  of  1951
      which prescribed the age of retirement as 55 years.
   4. On facts, there  was  no  dispute  at  any  stage  of  the  Suit  that
      Respondent No.1 was entitled to  exercise  option  under  Rule  11  of
      Rajasthan Services (Protection of  Service  Conditions)   Rules,  1957
      (hereinafter  referred to  as  ‘the Rules of 1957’) and  he  exercised
      that option and elected to be governed, as regards leave and  pension,
      by the rules applicable to him immediately before the  appointed  day,
      i.e., the Regulations in place of the Rules  of  1951.   The  relevant
      part of Rule 11 is as follows :
      “11.  Leave  and  Pension  Rules.-As  regards  leave  and  pension   a
      Government servant may exercise option of electing  either  the  rules
      applicable to him  immediately  before  the  appointed  day  or  rules
      incorporated in the Rajasthan Service Rules, 1951.
      ... … … …”

   5. The learned Munsif, however, came to the view that the option given by
      the Plaintiff related only to leave and pension and not to  retirement
      or age of retirement.  He came to such a view because Rule  11  begins
      with the words – “As regards leave and pension” and omits to mention -
      “age of retirement”.
   6.  Respondent  No.1’s  Regular  First  Appeal  No.192/1980  came  to  be
      dismissed by the  learned  District  Judge,  Jaipur  City,  Jaipur  on
      17.12.1994 and the view of the Trial Court was upheld.  Second  Appeal
      preferred by Respondent No.1 was, however, allowed by the  High  Court
      by the impugned judgment and order dated 19.3.2004.
   7. A perusal of the judgment and order under appeal shows that  the  High
      Court has noticed the relevant facts correctly and, on  the  basis  of
      admitted facts,  has  decided   the  question  of  law  in  favour  of
      Respondent No.1 by holding that the option  in respect  of  leave  and
      pension  exercised by Respondent No.1 (Plaintiff) made the Regulations
      applicable  to  his  service  conditions  relating  to  pension   and,
      therefore, he could not have been retired  on  the  basis  of  service
      conditions with regard to pension in the  Rules  of  1951.   The  High
      Court noted that though immediately prior to re-organisation of  State
      of Rajasthan, i.e., 30.10.1956, the age of  superannuation  under  the
      Regulations was also 55 years but on account of amendment in the  year
      1962 it had been raised to 58 years and, therefore, in the  year  1974
      when the State of Rajasthan decided to  consider  case  of  Respondent
      No.1  for  retirement  he  should  have  been  given  the  benefit  of
      provisions in the  Regulations  as  existing  on  that  date  and  not
      provisions in the Rules of 1951.
   8. On behalf of the Appellants, the simple contention is that the  option
      under Rule 11 of the Rules of 1957 should be confined to the  benefits
      of pension  under  the  Regulations  alone  and  not  to  the  age  of
      retirement.  In other words, the age at which Respondent No.1  was  to
      be retired under the Regulations should have been ignored and for this
      purpose the age of superannuation in the Rules of  1951  alone  should
      have been held to be applicable.  In the alternative, it has also been
      submitted that since the age of superannuation immediately before  the
      re-organisation of State of Rajasthan even under the  Regulations  was
      55 years, Respondent no.1 should not  have  been  allowed  benefit  of
      enhanced age of superannuation on account of subsequent  amendment  in
      the Regulations made in the year 1962.

   9. To the contrary, it has been submitted on behalf  of  Respondent  No.1
      that proviso to sub-section (7) of  Section  115  of  the  States  Re-
      organisation Act, 1956 protected the conditions of service  applicable
      immediately before the appointed day and they could not be  varied  to
      the disadvantage of Respondent no.1 except with the previous  approval
      of the Central Government.  It has further been submitted  that  Rules
      of 1957 were framed under Article 309 of  the  Constitution  of  India
      under directions issued by the Central Government under Section 117 of
      the States Re-organisation Act, 1956 and the option under Rule 11 with
      regard to leave and  pension  rules  was  by  way  of  protecting  the
      conditions of service applicable to Respondent No.1 immediately before
      the appointed day.  Once Respondent  No.1  exercised  his  option  and
      elected to be governed by the Rules regarding  pension  applicable  to
      him immediately before the appointed day, i.e., the  Regulations,  the
      age  of  retirement  prescribed  under  the  Regulations  like   other
      pensionary  provisions  would  continue  to  govern  him  as  per  the
      Regulations amended from time to time till the age  of  superannuation
      as per the Regulations which, since the year 1962 came to be 58 years.
  10. On considering the rival submissions, we find merit  in  the  case  of
      Respondent No.1 because the State of Rajasthan itself framed Rules  of
      1957 and granted wide and comprehensive option to Respondent  No.1  to
      elect either to be governed by the Rules applicable to him immediately
      before the appointed day or  the  Rajasthan  Service  Rules,  1951  in
      respect of leave and pension.  The  option  was  not  limited  to  any
      specific provision in the Regulations relating to pension or those  in
      the Rajasthan Service Rules, 1951.  Since Respondent  No.1  opted  for
      the Regulations as a whole, his retirement benefits had to be governed
      by the provisions contained in the Regulations including  the  age  of
      retirement as applicable  at  the  relevant  date  when  he  could  be
      retired.  His other pensionary benefits would also be governed by  the
      provisions of the Regulations including amendments made therein and on
      this latter aspect there is no dispute.
  11. If the submission advanced on behalf of the Appellants is accepted and
      if it is held that the age of retirement mentioned in the  Regulations
      on 30.10.1956 would govern persons like  Respondent  No.1  and  others
      governed by the Regulations independently of  any  option  would  have
      different age of  retirement  after  1962  amendment,  would  lead  to
      inequity as well  as  denial  of  equality  amongst  persons  who  are
      admittedly  to  be  governed  by  the  Regulations.    It   would   be
      unreasonable to hold that since a class of employees had opted for the
      Regulations, they would not get the  benefit  of  its  amendments  and
      would retire at 55 years whereas another class of employees would have
      the benefit of retiring at 58 years of age on account of amendment  in
      the year 1962.
  12. A careful appraisal of the wordings in Rule 11 of the  Rules  of  1957
      also supports the conclusions indicated above.   The  option  for  the
      rules applicable to the employee immediately before the appointed  day
      does not contain any restriction  that   the   option  shall   be   to
      such rules excluding the one providing for age of retirement  or  only
      as they stood on a particular day.  The clause ‘immediately before the
      appointed day’ occurring after the clause ‘rules  applicable  to  him’
      clearly relates to the word ‘applicable’ and it cannot be read to mean
      the rules as ‘existing’ before the appointed day.  The  elected  rules
      cannot be restricted for any  good  reasons  only  to  the  provisions
      existing in the past on  the  appointed  day  so  as  to  exclude  any
      amendment made in such rules  during  the  service  of  the  concerned
      employee.  In fact, the  elected  pension  rules  are  to  govern  the
      concerned employee in future also.  If the Rules of 1951 will apply to
      the concerned employee who opts for the  same  along  with  amendments
      made in the future, there can be no rationality in the view  that  the
      other rules applicable  before  the  appointed  day  shall  apply  but
      without any amendments even when such amendments are made  during  the
      service period of the employee opting for the same.
  13. The Appellant-State of Rajasthan may be correct in its submission that
      the proviso to sub-section (7)  of  Section  115  of  the  States  Re-
      organisation Act, 1956 does not help Respondent No.1 directly  because
      the age of retirement under the Regulations even before the  appointed
      day  was  only  55  years  and  that  has  not  been  varied  to   his
      disadvantage.  However, once the State of Rajasthan, with the previous
      approval of the Central Government, gave an option to Respondent  No.1
      not confined to any particular age of retirement but to elect  between
      Regulations and  the  Rules  of   1951,   Respondent  No.1  cannot  be
      subsequently deprived of the benefits of enhanced  age  of  retirement
      accruing to him on account of amendments in the  Regulations  made  in
      the year 1962 when Respondent No.1 was still in service.   After  that
      amendment in the Regulations, his retirement  age  legally  became  58
      years.  As discussed above, there is no good reason  to  take  a  view
      contrary to that of the High Court which has answered the  substantial
      question of law  involved  in  the  Second  Appeal  appropriately  and
      correctly.
  14. In the facts of the case, we find no merit in the Civil Appeal and  it
      is accordingly dismissed but without costs.

                                       ……………………………….J.
                                       [ANIL R. DAVE]


                                       ………………………………..J.
                                       [SHIVA KIRTI SINGH]

New Delhi.
April 04, 2014.
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