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Wednesday, February 18, 2015

the respondent was, therefore, entitled to get the benefit of his services rendered from "03.01.1966" onwards as mentioned by him in the Form (Annexure- P-1) for assessing his pension, gratuity and other retiral benefits etc.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELALTE JURISDICTION

                       CIVIL APPEAL No. 1892   OF 2015
                   (ARISING OUT OF SLP(C) No. 21865/2014)

      State of Madhya Pradesh & Others           Appellant(s)


                 VERSUS


Hitkishore Goswami                                 Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.          Leave granted.
2.           This  appeal  is  filed  by  the  State  of  M.P.  against  the
judgment/order dated 09.10.2013 passed by the High Court  of  M.P.  in  W.A.
No.478 of 2013 which arise out of judgment/order dated 05.07.2013 passed  by
the Writ Court in W.P. No.1475/2009 (S).
3.          By impugned judgment, the  Division  Bench  of  the  High  Court
dismissed the appeal filed by the State (appellant herein)  and  upheld  the
order  of  the  Writ  Court  (learned  Single  Judge)   which  allowed   the
respondent's writ petition by issuing directions in the nature  of  mandamus
against the appellant (State) in relation to respondent's pension case.
4.          The question, which arises for consideration in this  appeal  is
whether the Courts below were justified in allowing  the  respondent's  writ
petition and in consequence  justified in issuing directions in  the  nature
of writ of mandamus in relation to respondent's pension case.
5.          Facts of the case lie in a narrow compass. They,  however,  need
mention, which are taken from the list of dates and  the  pleadings  of  the
parties infra.
6.          The respondent was appointed as Lecturer (Botany) on  02.07.1963
in the School Education Department of the  State.   He  was  posted  in  the
Government Higher Secondary School  at  Kannod,  District  Dewas  and  later
transferred to another Government Higher Secondary School at Agar (Malba).
7.          In the year  1965,  the  respondent  applied  for  the  post  of
Lecturer in the Government Degree  College,  Narsinghgarh  pursuant  to  the
advertisement issued by  the  M.P.  Public  Service  Commission  (for  short
MPSC). The respondent  was  selected  for  the  said  post.  He,  therefore,
tendered his resignation in December, 1965 from the  post  of  lecturer   to
enable him to  join  the  new  service.  The  respondent's  resignation  was
accepted.
8.          The respondent, accordingly, on 03.01.1966 joined  on  the  post
of Lecturer in the Government Degree College, Narsinghgarh and  worked  till
30.04.1976. He was then  sent  on  deputation  as  Reader  on  selection  at
Barkatulla University, Bhopal. The respondent continued to work  there  when
his services were  absorbed  permanently  on  29.08.1979  with  effect  from
01.05.1978.  The  respondent  attained  the  age  of  superannuation    and,
accordingly, retired from the services on 31.5.2004.
9.          The respondent  then  applied  for  assessing  his  pension  and
payment of gratuity (annexure-P-1) to the concerned authorities.  In  Column
No. 7 of the Form, he  mentioned the date of beginning  of  his  service  as
"3rd January 1966".  However, later, the respondent  joined  an  issue  with
the State that while calculating his pensionery benefits,  the  past  period
of his services, which he rendered as lecturer in  the   government  schools
from "02.07.1963 to 02.01.1966", should also be counted. The State  did  not
accept the prayer made by the respondent.
10.         This gave rise to filing of the writ petition by the  respondent
against the State for determination of the question as  to  whether  he  was
entitled to take benefit of his past services from 02.07.1963 to  02.01.1966
so as to include the said  period  in  his  total  length  of  services  for
counting  qualifying services to fix his pension and other retiral  benefits
payable to him.
11.         The State  contested  the  respondent's  writ  petition  on  two
grounds. In the first place it was contended that  the  claim  made  by  the
respondent is inordinately delayed and hence the writ  petition  was  liable
to be dismissed on the ground of delay and laches.  The  second  ground  was
that since the respondent had voluntarily resigned from earlier services  to
enable him to join the new post of  Lectureship  in  the  Government  Degree
College and his resignation having been  accepted by the State, he  was  not
entitled to claim  any  benefit  of   earlier  services   for  counting  his
qualifying services  for fixing his pension and  payment  of  other  retiral
benefits.
12.         The Writ Court, by order dated 05.07.2013, did  not  accept  the
grounds taken by  the  State  and,  while  allowing  the  respondent's  writ
petition, issued the following directions against the State:
"(i)  The respondents shall count the services rendered  by  the  petitioner
from July 1963 to 3.1.1966  for  the  purpose  of  qualifying  services  for
counting pension, gratuity and other retrial dues.

(ii)   While  refixing  and  revising  the  pension  and  retrial  dues  the
respondents shall consider whether petitioner is entitled  for  any  benefit
as  per  the  circulars  issued  by  the  State  Government,  Annexure  P-12
(cumulative).

(iii)       The aforesaid exercise be positively completed  within  60  days
and revised pension and consequential benefits arising there to be  paid  to
the petitioner within the aforesaid time.  If it  is  not  done  within  the
aforesaid period, it  will  carry  6%  interest  till  the  date  of  actual
payment."

13.         The State felt aggrieved filed intra court appeal.  By  impugned
order, the Division Bench dismissed the appeal  and  upheld  the  directions
issued by the  Writ  Court.  It  is  against  this  order;  the  State  felt
aggrieved and has filed this  appeal, by special leave.
14.         Learned Counsel for the appellant (State)  while  assailing  the
legality and correctness of the impugned order reiterated the  same  grounds
as were urged before the courts below and made two-fold submissions. In  the
first place, he contended that the courts below erred  in  entertaining  and
eventually allowing the respondent's writ petition by issuing  the  impugned
directions. It was his  submission  that  once  the  respondent  voluntarily
tendered his resignation from his earlier service, which on its  acceptance,
enabled him to join the new service as Lecturer  in  the  Government  Degree
College, the period spent in  past services  was  not  available  for  being
counted nor it could be a part of the qualifying service  while  fixing  his
pension. In other words, the submission was that acceptance of  respondent's
resignation by the State (competent authority) resulted in severance of  his
relationship with the State so far  as  that  particular  service/employment
was concerned because it brought to an end the said services/employment  for
all purposes.  It was for this reason the  learned  counsel  for  the  State
urged that the period spent in  such  services  was  not  available  to  the
respondent while counting the qualifying service  for  fixing  his  pension.
This submission urged by the learned counsel was not  decided  by  the  High
Court in its proper perspective. His second submission  was  that  when  the
respondent himself  mentioned in his Pension Form  (Annexure-P-1)  that  his
date  of  beginning  in  the  service  for   assessing   the   pension   was
"03.01.1966", then in such circumstances he had no right to turn around  and
request the State to count his services rendered  prior to 03.01.1966.
15.         In contra, learned counsel  for  the  respondent  supported  the
impugned order and contended that no case is made out to interfere with  the
impugned order and hence, the  same  should  be  upheld  by  dismissing  the
appeal.
16.         Having heard the learned counsel for the parties and on  perusal
of the record of the case, we find force in the submissions of  the  learned
counsel for the State.
17.         In our considered opinion, the respondent was  not  entitled  to
claim the benefit of his  past services which he rendered  from  "02.07.1963
to 02.01.1966" as Lecturer in the Government Schools while  determining  his
qualifying service for fixing his pension etc.
18.         It  was  for  the  reason  that  respondent  having  voluntarily
tendered his resignation from the  said  service  without  there  being  any
condition much less a condition to enable him  to  claim  any  kind  of  its
benefit in the event of his  joining  other  services  with  the  State,  no
benefit of such past services was available to the respondent.
19.          In  our  considered  opinion,  the  effect  of  tendering   the
resignation by the  respondent  -  may  be  for  any  reason  was  that  the
relationship between the parties insofar as that particular  employment  was
concerned got severed for all purposes  leaving  no  benefit  to  remain  in
respondent's favour. It  had  no  connection  with  respondent's  subsequent
employment  which began from "03.01.1966".
20.         Indeed,  in  order  to  claim  continuity  in  the  service  for
claiming any benefit arising therefrom, it was necessary for the  respondent
to have shown any specific rule or condition recognizing such right  in  his
favour. The respondent, however, was not able to show any such  rule  or/and
condition in his favour.
21.         It is a trite law that a right to claim pension  is governed  by
the statue.  An employee has, therefore, no right to claim  any  benefit  in
relation to pension dehores the statute.
22.         Learned counsel for the respondent,  however,  vehemently  urged
that keeping in view the respondent's unblemished service  record  with  the
State, it can safely be taken that there was no break in the service,  which
entitled the respondent to claim benefits flowing from his past and  present
services including its continuity qua State.
23.         We find no merit in this submission in the light of our  finding
recorded in the preceding paragraph.
24.         In the light of foregoing discussion, we are of  the  considered
opinion that the courts below erred in directing the State to  give  benefit
to the respondent of his services which he had rendered from "02.07.1963  to
02.01.1966" for fixing his pension without properly examining the effect  of
his tendering resignation on the issue raised in the writ petition.
25.         In our opinion, the respondent was, therefore, entitled  to  get
the  benefit  of  his  services  rendered   from  "03.01.1966"  onwards   as
mentioned by him in the Form (Annexure- P-1)   for  assessing  his  pension,
gratuity  and other retiral benefits etc.
26.         Since we have   dismissed  the  respondent's  writ  petition  on
merits hence, it  is  not  necessary  to  deal  with  another   question  in
relation to  delay and laches in filing the  writ  petition  raised  by  the
appellant (State) which was decided by  the  courts  below  in  respondent's
favour.  In any event, we are inclined  to  uphold  the  finding  of  courts
below on this issue and,  accordingly,  hold  that  writ  petition  was  not
liable for dismissal  on the ground of delay  and  laches  on  the  part  of
respondent.
27.         In view of foregoing discussion, we allow the appeal, set  aside
the impugned judgment  and  orders  and  in  consequence  dismiss  the  writ
petition filed by the respondent.
28.         We direct the appellant (State) to  finalize the  claim  of  the
respondent for fixing his pension and other retiral benefits  in  the  light
of what is held above, as per rules, and pay  the  same  to  the  respondent
within three months from the date of this judgment.  No costs.



       .............................................................J.
                       [FAKKIR MOHAMED IBRAHIM KALIFULLA]



..............................................................J.
                       [ABHAY MANOHAR SAPRE]


      New Delhi;
      February 16, 2015.

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