Central Administrative Tribunal - Delhi
Smt. Shanti Devi vs Delhi Transport Corporation on 21 May, 2010
Central Administrative Tribunal Principal Bench, New Delhi.
OA-2384/2009 New Delhi this the 21st day of May, 2010.
Honble Mr. N.D. Dayal, Member (A) Smt. Shanti Devi, Widow of late Sh. Dilbagh Singh, R/o Village & P.O. Raanhola, New Delhi-41. .. Applicant (through Mr. Prashant Kataria for Sh. Anil Mittal, Advocate) Versus Delhi Transport Corporation, I.P. Estate, New Delhi-110002. .. Respondent (through Chairman-cum-Managing Director) (through Sh. N.K. Singh for Mrs. Avnish Ahlawat, Advocate) Order (Oral) The learned counsel Sh. Prashant Kataria appearing on behalf of the applicant has vehemently argued that the respondents by their letter at Annexure-F dated 29.10.2007 had clearly stated that the applicants husband had opted for pension and his nominee as per record was his wife. Therefore, it was expected that they might take further action to arrange for the pension to be released. However, by the order passed on 21.01.2009 at page-9 of the OA the representation for grant of pension was not agreed to as the applicants husband was found ineligible in terms of Rule 26 of CCS (Pension) Rules, 1972. A perusal of this Rule shows that in the event of resignation the past service would be forfeited. The learned counsel draws attention to sub-clause (2) of this Rule where past service is not forfeited if the resignation has been made with prior permission to take up another appointment under Government. However upon scrutiny of the documents with the OA the learned counsel fairly submits that this was not the case with the applicants husband. It is further argued that the Honble High Court of Delhi in the case of Sudarshan Kumar Vs. Delhi Transport corporation and another, 1994(7) SLR 163 has held that pension is to be paid to those who have rendered qualifying service and there cannot be artificial distinction between a person who has retired or who has resigned. On this basis it is contended that the resignation of the applicants husband should be treated as voluntary retirement and the pensionary benefits released along with arrears as prayed in the OA.
2. The learned counsel for the respondents Sh. N.K. Singh submits that the applicants husband had sought to resign by his request dated 26.09.2007 on account of ill health. Therefore his resignation was accepted after necessary formalities and in terms of Rule 26 of CCS Pension Rules since his past service had been forfeited, no pension could be released. The learned counsel has placed before Court judgment of a Division Bench of Honble High Court of Delhi in WP(C) Nos. 4793/1996 and 503/2003 which inter-alia referred to Honble Supreme Court judgment in U.O.I. Vs. Braj Nandan Singh, (2005) 8 SCC 325 wherein it has been held that resignation as per Rule 26(1) of the CCS (Pension) Rules, 1972 would entail forfeiture of past service and pensionary benefit would be denied. With regard to the validity of Rule 26 it has been emphasized that it is couched in mandatory terms and would therefore render the government employee disentitled to the benefit of past service for the purpose. It is denied that the applicants husband or the applicant had ever been told that he was entitled to pension, which is borne out by the documents on record.
3. It would be useful to reproduce Para-14 of the Honble High Court judgment which is as under:-
This Rule came up for interpretation before the Supreme Court in the case of Union of India and Ors. Vs. Braj Nandan Singh, (2005) 8 SCC 325 and the Court opined that in terms of the aforesaid Rule, resignation would entail forfeiture of past service and, therefore, deny such an employee the benefit of pension. In the process, the Court observed as under:-
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 or 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 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 service. 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 statute 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 leaned 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.
4. In the light of the submissions made and upon consideration of the case law relied upon, I am of the opinion that the judgment of the Honble Supreme Court in Brij Nandan Singh (supra) would hold the field. I am therefore unable to accede to the prayer of the applicant. The O.A. is dismissed. No costs.
(N.D. Dayal) Member(A) /vv/ Apex Court judgment in Braj Nandan Singh (supra):-
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 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 or 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 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 of 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 service. 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 statute 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 leaned 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. Said Rule deals with amount of pension and not with entitlement.