The State Of Bihar & Anr vs Dr.Smt.Shahida Hassan on 27 January, 2010

[Cites 3, Cited by 6]

Patna High Court - Orders

The State Of Bihar & Anr vs Dr.Smt.Shahida Hassan on 27 January, 2010

Regard being had to the commonality of controversy in both the appeals it was thought apposite to hear them analogously and, accordingly, they were heard together and are disposed of by singular order. It is imperative to state the factual matrix of each case separately although the interpretations of rules involved are the same.

2. In L.P.A. No. 373 of 2004 the exposé of facts are that 3 the respondent had joined the service as Medical Officer under Health Department, Government of Bihar on 15.7.1981 and submitted her resignation from the said service which was accepted by the State Government with effect from 21.01.1995. Though her resignation was accepted, she was not paid gratuity, full pension, G.P.F., group insurance, leave encashment and arrears of salary. Being aggrieved by the aforesaid action of the State Government she preferred writ petition forming the subject matter of C.W.J.C. No. 1678 of 2003. It was contended in the petition that she had completed more than thirteen years and six months service and, hence, was entitled for pension and other post retiral benefits under clause 18 of Appendix 6, contained in Part II of the Bihar Pension Rules, 1950 (for short „the Rules‟) which prescribes ten years of minimum service as qualifying service for payment of pensionary benefits. The stand put forth by the writ petitioner was resisted by the State and its functionaries stating, inter alia, she is not entitled to get pension and gratuity, etc. As far as arrear salary is concerned it is pleaded that a sum of Rs. 38,659/- had been handed over to her counsel on 13.05.2003. In oppugnation of the said stand, it was urged that her services stood forfeited under Rule 101(a) of 4 the Rules and, therefore, no fault can be found with the decision taken by the State Government.

3. Learned single Judge upon analysing the provisions, namely, Rule 101(a) and Rule 135 of the Rules and Rule 74(b)(i) of the Bihar Service Code (for short „the Code‟) and placing reliance on the decisions rendered in Tapan Kumar Chatterjee v. The State of Bihar & Ors., 1998(1) P.L.J.R. 707, Union of India & Ors. v. Braj Nandan Singh & Anr., 2003(3) P.L.J.R. 409 and Union of India & Ors. V. Lt. Col. P.S. Bhargava, (1997) 2 S.C.C. 28 came to hold that there is a distinction between resignation simpliciter and resignation which is given for misconduct, insolvency and insufficiency; that Rule 101(a) of the Rules is contradictory to the provision contained in Rule 135 of the Rules; that it is difficult to reconcile Rule 135 of the Rules with Rule 74(b)(i) of the Code; and that when there is manifest contradiction, construction should be placed which emphasises the meaning of the words; that once resignation has been accepted, denial of pension after completion of qualifying service would be violative of Articles 14 & 16(1) of the Constitution of India; and that writ petitioner is entitled to get pension, gratuity, leave encashment and G.P.F. 5

4. In L.P.A. No. 688 of 2009 the predecessor-in-interest of the present appellants had invoked the jurisdiction of this Court in C.W.J.C. No. 8869 of 2003 assailing letter no. 578 dated 10.6.2003 issued by the Senior Accounts Officer of Accountant General, Bihar by which his claim for pension was rejected. The stand of the original petitioner was that he was entitled to pension and gratuity, as his resignation was accepted with effect from 07.05.1977 and the same should not be treated as a resignation but an application for voluntary retirement. During the pendency of writ petition, the original writ petitioner expired and the present appellants impleaded themselves to prosecute the lis. As is evincible from the facts brought on record, the original petitioner was appointed as a teacher in the Middle School, Shirnia on 01.04.1949. The said school was taken over by the State Government with effect from 01.01.1971. In the month of June, 1976 he was transferred from the Middle School, Shirnia to the Middle School, Gangaur. He submitted a representation before the District Superintendent of Education, Munger that his health did not permit him to serve at the transferred place of posting. He was relieved from the School on 06.07.1976 for joining at the transferred place of 6 posting but he chose not to join and decided to go on leave. He extended his period of leave till 15.05.1977. Eventually he tendered his resignation on 07.05.1977, which was accepted with effect from that date. In the application for resignation it was put forth that leave for one year should be granted and regularized and he should be paid pension and gratuity. It was set forth in the petition that on 09.06.1978 his service book along with pension papers were forwarded to the Director, Primary Education, Government of Bihar for appropriate direction and eventually on verification of the service book and pension papers a decision was taken that as it was a case of resignation from service payment of pension is not admissible in view of Rule 101(a) of the Rules. Being dissatisfied with the said action the original writ petitioner had preferred C.W.J.C. No. 696 of 2003, which was disposed of on 03.04.2003 granting liberty to the petitioner to submit an appropriate representation before the Additional Secretary and Incharge of Pension Cell in Finance Department with a direction to consider his claim and pass a reasoned order. In pursuance of the order passed in the aforesaid writ petition, the competent authority rejected his claim maintaining the stand that because of resignation he was 7 not entitled for payment of pension and gratuity.

5. Learned single Judge after scanning the letter written by the original writ petitioner came to hold that the claim of the original writ petitioner that his resignation was to be treated as an application for voluntary retirement was untenable and as the letter of resignation was clear and the same was accepted, the claim for pension was unsustainable in view of the language employed in Rule 101(a) of the Rules.

6. We have heard Mr. S.K. Ghosh, learned Additional Advocate General II along with Mr. Arup Kumar Chongdar for the appellants in LPA No. 373/2004 and Mr. Ashwini Kumar Singh learned Senior Counsel along with Mr. Gajendra Pratap Singh for the respondent. In LPA No. 688/2009 we have heard Mr. Gyanand Roy, learned counsel for the appellants and Mrs. Nilu Agrawal, learned Government Advocate X, Mr. Zaki Haider and Mr. Sanjay Kumar for the respondents.

7. The core question that falls for consideration is whether services of an employee, who has fulfilled the qualifying service, can be forfeited on the base or foundation of Rule 101(a) of the Rules. In this context it is apt to reproduce Rule 101 of the Rules:

"101.(a) Resignation of the public 8 service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.

(b) Resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service."

8. Mr. Ghosh, learned Addl. Advocate General II appearing for the State submitted that the language of Rule 101(a) is clear and unambiguous and it does not conceive of any kind of resignation simpliciter and resignation otherwise except what has been carved out as an exception in Rule 101(b) of the Rules. It is canvassed by him that the decision rendered in Tapan Kumar Chatterjee (supra) does not lay down the law correctly as in the said decision Rule 101 has not been appositely interpreted. It is his further submission that the decision rendered in Braj Nandan Singh & Anr. (supra) cannot be regarded as a precedent as the Bench was concerned with Rule 101(a) of the Rules.

9. Mr. Ashwini Kumar Singh, learned Senior Counsel appearing for the respondent, per contra, would contend that on a proper scrutiny of the Rules in entirety it would be quite vivid that upon fulfilling the qualifying service the question of 9 forfeiture does not arise. He has referred to Rule 3, Rule 6 and Appendix 6 of the Rules and various provisions of the Code. He has also referred to Rule 135 of the Rules to bolster the stand that an anomalous situation is being created. He has also referred to Rules 144 and 145 of the Rules. Learned counsel has also drawn our attention to Rule 74 of the Bihar Service Code, especially Clause (b) of the said Rule. Learned counsel has also drawn inspiration from the provisions of the Bihar Service Code to highlight that there has been an amendment with regard to qualifying service for all purposes to ten years and hence Rule 135 of the Rules has to succumb to the same.

10. At this stage we may refer with profit the relevant part of Rule 135 of the Rules which is reproduced hereunder:-

"135. Government servants mentioned in rule 5 are entitled, on their resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years. ......"

On a reading of the said Rule there can be no iota of doubt that it carves out an exception as regards resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years. On a perusal of Rule 144 and Rule 145 of the Rules which have been pressed into service by 10 Mr. Singh, learned Senior Counsel for the respondent, it is patent that they deal with computation of pension and not entitlement of pension and, therefore, they really have no signification.

10A. The learned counsel for the respondent has also placed reliance on Part II, Appendix 6, Clause 18 of the Rules, which is in Hindi. The same being translated into English would read as follows:

"18. Minimum Qualifying Service for Pension

- As per present Rule, minimum qualifying service for pension for permanent/temporary government servants are 10 years and 15 years respectively. Now it has been decided that minimum qualifying service for pension for both the categories shall be 10 years."

Relying on the said provision it is contended by Mr. Singh that in praesenti the minimum qualifying service for pension is 10 years and, therefore, the same has to be read into Rule 135 of the Rules. On a first flush the submission appears to be quite attractive but on X-ray of the provisions in entirety it has to pale into insignificance. What Clause 18 states is the reduction of the period pertaining to qualifying service. It is general in nature. Rule 135 deals with a special situation. It deals with resignation and its acceptance and, in that context, 11 the period. Thus, the reduction of period as brought by way of amendment in Clause 18 does not render any assistance to the submission propounded by the learned counsel for the respondent.

11. At this juncture we may refer to the citations that have been commended to us. In Tapan Kumar Chatterjee (supra) the learned single Judge after referring to Rule 101 of the Rules has held as follows:-

"9. If the argument advanced by the counsel for the University is accepted then it is to be interpreted that in all cases of resignation the past service of an employee will forfeit, clubbing them with the same class of employees dismissed or removed from service for mis-conduct or other reason. Such interpretation will amount to make the two unequals as equal, as an employee resigned, by way of resignation simpliciter for one or other purpose like employment in other organization or to take rest in life (like voluntary retirement) will be placed at par with the employees dismissed or removed from service because of stigma."

12. In Braj Nandan Singh & Anr. (supra) a Division Bench of this Court while dealing with the matter arising from the Central Administrative Tribunal dealt with the stand of the Union of India which is reproduced hereunder:-

"2. It is now contended that on merits the tribunal was wrong in having ordered the payment of post retirement benefits for the 12 reason that the incumbent (Braj Nandan Singh) while tendering his resignation was not joining public service. In the circumstances, this disentitled him for reliefs in the nature of post retirement benefits. The second contention is that the prayer for post retirement benefits was sought after inordinate delay, that is, after about 20 years."

The said stand has been dwelled upon in paragraph 4 which reads as follows:-

"4. In so far as the other aspect is concerned that pension is payable and it is qualified with a condition that should there be a resignation it must follow with joining the public service. This aspect does not appeal to the court either. If a person has qualified the minimum period to receive pension he is entitled to receive whatever pension is payable for the period during which he was in service.

This matter should not be mixed up as continuous service which may be added, should a person be joining another service." It is worth noting in the said case the Bench was dealing with retiral benefits and no rules have been referred.

13. Quite apart from that it was not a case which related to interpretation of Rule 101 of the Rules and, therefore, it cannot be treated as a precedent on the said issue.

14. In Lt. Col. P.S. Bhargava (supra) a two-Judge Bench of the Apex Court was dealing with pension rules for the Army. Their Lordships referred to various Regulations, viz. 13 Regulations 22, 25, 26, 38 and came to hold that on completion of qualifying service, an officer, like the respondent therein would be entitled to get pension and gratuity. After so expressing their Lordships adverted to three provisions, namely, Regulations 3, 4 and 16. Regulation 3 of the said Regulations stipulated that full rate of pension or gratuity provided for in these Regulations shall not be granted unless the service rendered has been satisfactory and if the service has not been satisfactory, the competent authority may make such reduction in the amount of pension or gratuity as it thinks proper. Regulation 16(a), which was referred to by their Lordships, stipulated that when an officer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his/her pension may, at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he/she would have otherwise qualified, had he/she retired on the same date. Regulation 16(b) of the said Regulations stipulates that when an officer who has to his/her credit the minimum period of qualifying service required to earn a pension is called upon to retire or to resign or in the event of his/her refusing to 14 do so is retired from or gazetted out of the service, he/she may at the discretion of the President be granted a pension at a rate not exceeding that for which he/she would have otherwise qualified, had he/she retired on the same date in the normal manner. Interpreting the said Regulation their Lordships expressed the view as follows:-

"18. Regulation 16(a) gives the President the power either to forfeit or to reduce the rate of pension in the event of an officer being cashiered, dismissed or removed from the service. Under sub-regulation (b) of Regulation 16, if an officer is called upon to retire or resign, he may at the discretion of the President be granted a pension at a rate not exceeding what he would have otherwise qualified. Regulation 16 gives the power to the President to reduce or forfeit the pension of an officer who has to his credit the minimum period of qualifying service only in the event of his being cashiered, dismissed or removed from the service. Even in such a circumstance, there is no automatic forfeiture of pension or gratuity. An officer whose service is terminated by reason of his being cashiered, dismissed or removed from the service would normally be entitled to get his pension though the President has a right to forfeit or reduce the pension.

19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulations intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a 15 specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits."

15. In view of what has been stated in the aforesaid paragraphs it is graphic that the provisions were different and, in fact, their Lordships have opined that had the Regulations intended to take away the right of a person to the terminal benefits on his voluntarily resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations.

16. In view of the aforesaid decision rendered in Braj Nandan Singh & Anr. (supra) is not applicable to the case at hand. As far as the decision in Lt. Col. P.S. Bhargava (supra) is concerned, the ratio laid down therein is not attracted; on the contrary, in a different way, lays down that if a provision is made for forfeiture which would have nexus with resignation, the matter would be different.

17. In this context we may profitably refer to the decision in Union of India & Ors. v. Braj Nandan Singh, (2005) 8 SCC 325 wherein the Apex Court was dealing with Rule 26 of the Central Civil Services (Pension) Rules. The said Rule reads as under:-

"26. Forfeiture of service on resignation.-(1) 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.

(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."

While interpreting the said Rule their Lordships have expressed thus:

"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 17 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 learned 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."

18. Be it noted, Mr. Singh, learned Senior Counsel appearing for the employees submitted that the interpretation on Rule 24, as has been done by the Apex Court, cannot be pressed into service while interpreting Rule 101(a) in view of the entire scheme of the Rules. It is also canvassed by him that there is an 18 anomaly between Rule 101(a) and Rule 135 of the Rules and, if they are appreciated in the context of Rule 74 of the Code, it is difficult to harmoniously reconcile them. He has also emphasised on the fact that Rule 101(a) has to be purposively interpreted to convey that there is a distinction between resignation simpliciter and resignation otherwise. The aforesaid submissions of Mr. Singh do not merit acceptation inasmuch Rule 101(b) carves out an exception to Rule 101(a) of the Rules. Rule 135 deals with a different situation altogether. It confers a right on an employee, who submits his resignation after 25 years and the same is accepted by the employer. The said Rule, if we cull out ourselves to say so, is a further exception to Rule 101(a). We perceive no anomaly or repugnancy between Rule 101(a) and Rule 135 of the Rules, for they deal with different situations which is permissible. The reference of the Code that there has been an amendment that one would qualify to get pension after expiry of 10 years is of no aid or assistance but as that does not deal with the factum of resignation, qualifying service for the purpose of pension and being entitled to get pension on resignation being accepted are in two different realms. It is a well settled principle of law of 19 interpretation that the object and purpose of the provisions and the language employed in each rule or provision is to be appositely understood.

19. In view of the aforesaid we are of the considered opinion the decision rendered in Tapan Kumar Chatterjee (supra) does not laid down the correct law and, accordingly, the same is overruled and any other decision following that decision has to follow the similar path and we so direct.

20. The case of the respondent in LPA No. 373/2004 is squarely covered within Rule 101(a) of the Rules and, therefore, the order passed by the learned single Judge is unsustainable and, accordingly, set aside.

21. As far as LPA No. 688/2009 is concerned, on a perusal of the facts it is luminescent that the original writ petitioner, the predecessor-in-interest of the present appellants had already completed 25 years of service and his resignation was accepted. On a query being made, Mr. Ghosh, learned Additional Advocate General II as well as Mrs. Agrawal, learned counsel for the State fairly conceded to the said position that Rule 135 is attracted and, therefore, the 20 order passed by the learned single Judge is set aside and it is directed that the appellants shall be entitled to all the retiral benefits.

22. Consequently, LPA No. 373/2004, preferred by the State, is allowed and LPA No. 688/2009, preferred by the legal representatives of the original writ petitioner, stands allowed. In the facts and circumstances of the case there shall be no order as to costs.

( Dipak Misra, C.J.) (Shiva Kirti Singh, J.) Patna High Court.

The 27th January,2010.

Arun Kr.S/Dilip.

AFR.

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Patna High Court - Orders