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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