Gujarat High Court
Ghanshyambhai Harishankar Dave vs Secretary on 24 November, 2003
Author: P.B. Majmudar
Bench: P.B. Majmudar
JUDGMENT P.B. Majmudar, J.
1. The petitioner, who is at the fag end of his life and is aged about 90 years, as stated in the affidavit at page 5 of the compilation, has approached this Court for the purpose of getting the pensionary benefits, which, according to him, are denied by the State Government.
2. The petitioner had taken part in the freedom struggle movement and is accordingly given the benefit of "freedom fighter pension" by the Union of India. So far as the present petition is concerned, the same is confined in relation to pension for the services rendered by the petitioner for the period between 1936 and 1943. Before independence, the petitioner was serving in the Forest Department of the State and it is, as such, not disputed that he has served for the period from 1936 to 1943 and that in the said year 1943 the petitioner gave resignation in order to join the freedom movement of the country. Thereafter, after considerable time, even after getting the independence, the petitioner had never approached the authority for reinstating him in service, nor has he submitted any application for the purpose of reinstating him in service. It is, however, not in dispute that the petitioner was already in service of the State Government in its forest department for a period of more than 7 years. It has come on record by way of some correspondence that the petitioner had served in the office of the Assistant Conservator of Forests as a clerk for about 7 years and 5 months. After considerable time, the petitioner started making correspondence with the Government to give him pension, treating him as having retired from the service on the basis of attaining the age of superannuation in the year 1972.
For the above purpose, the petitioner earlier even approached this Court by way of filing Special Civil Application No.5712 of 1984. The prayer of the petitioner in that petition was that it may be declared that he was in service of the State Government up to the year 1972, with right to obtain promotions and perquisites available to the government servants and it was prayed that he may be awarded full pension, treating him as having retired in the year 1972, with other consequential benefits. This Court came to the conclusion that as per the petitioner's own case, he had served erstwhile State of Vadodara from 1936 to 1943, but he had never shown his willingness to get the reinstatement order and he was also paid some ex-gratia pension even though he was not having to his credit the qualifying service. This Court also found that the petitioner would have freed himself from the freedom struggle movement on 15th August, 1947 or 26th January, 1950 but till 1968 he never prayed for taking him back in service. The court, therefore, found that he was not interested in work and therefore the claim which was made by him, i.e. reinstatement in service is a belated claim, made after 21 years. This Court has found that the petitioner has made his claim for reinstatement in the service only after 21 years after independence and no such bleated claim can be allowed. On the aforesaid ground this Court rejected the said petition filed by the petitioner. The said order was confirmed in appeal and as pointed out by the learned AGP, the SLP was also dismissed. Therefore, the claim of the petitioner regarding getting full pensionary benefits treating him to be in government service till 1972 is negatived by this Court and the said decision has become final.
However, it is required to be noted that subsequently, by the order dated 6th December, 2000 the Additional Secretary of the Forest Department wrote a letter to the Principal Secretary, Forest Department, on 6th December, 2000, in which it is mentioned that the petitioner has served the State Government between 1936 and 1943 and after considering documents produced by the petitioner in connection with his service during the aforesaid period, he has recommended that since the petitioner is a freedom fighter and is of advanced age, the government has decided to give him compassionate pension, and, accordingly, the Principal Secretary was requested to prepare the necessary papers in this connection by giving top priority. The said letter dated 6.12.2000 is produced at page 9 of the petition. It seems that, initially, the Government decided to give compassionate pension to the petitioner but, subsequently, by another letter dated 6th May, 2002, the petitioner was informed by the Deputy Secretary of the Government that after considering all the aspects of the case, it has been found that compassionate pension cannot be paid to the petitioner and the Government has not accordingly accepted the said proposal for giving compassionate pension to the petitioner. The said order dated 6th May, 2002 is produced at page 10 of the petition. The petitioner again made certain representations for the purpose of giving aforesaid compassionate pension. However, he was informed by letter dated 20th March, 2003 that the petitioner is not entitled to any such benefit. The said letter is produced at page 6 of the petition. Being aggrieved by the aforesaid decision of the State Government in not granting compassionate pension to the petitioner, the petitioner has filed the present petition. Ms V.L. Bhatt, learned Advocate, has appeared for the petitioner. At the request of the Court, the learned advocate Mr. Mukul Sinha has appeared in this matter as Amicus Curiae.
3. At the time of hearing of this petition, it is argued by learned advocate Mr Sinha, who was requested by the Court to assist the Court as Amicus Curiae, that so far as the claim of the petitioner for getting the regular pension, considering his total length of service and the date on which he might have reached the age of superannuation, is concerned, the same is finalised by this Court by the earlier judgement. He, however, submitted that subsequently the request of the petitioner for getting the compassionate pension for the period from 1936 to 1943 was considered by the State Government and it was initially decided to give the said benefit to the petitioner but, subsequently, the same is denied by the State Government by reviewing the earlier decision. It is submitted by Mr Sinha that there is no reason as to why the aforesaid benefit of compassionate pension should not be given to the present petitioner. Mr Sinha further submitted that when the petitioner has taken part in the freedom movement of the country and in order to serve the country, he was compelled to resign, such resignation should not come in his way for considering his case for compassionate pension.Mr Sinha has also further submitted that at least from the date on which the government has taken the decision to grant compassionate pension to the petitioner, the government should be directed to pay the same to the petitioner as per the Bombay Civil Service Rules. It is not in dispute that the petitioner has been given fixed amount of ex-gratia pension, which comes to Rs.12,500/--. It has been pointed out that in the year 1982, he was paid the fixed amount of Rs.5,000/= and in March 2001 he was paid Rs.7,500/=. Mr Sinha further submitted that as per the BCS Rules, the ex-gratia pension amount that is paid to the petitioner may be adjusted in the amount of compassionate pension amount but there is no reason not to give the compassionate pension to the petitioner. Mr Sinha also submitted that simply because the petitioner was required to give resignation for the purpose of joining the freedom movement of the Country, he cannot be put to any disadvantageous position. Mr Sinha further submitted that after considering the facts and circumstances, the Government had, initially, decided to give compassionate pension to the petitioner but subsequently, the said decision is changed without giving any reasons. Mr Sinha further submitted that the present petition is filed in view of the subsequent cause of action of giving compassionate pension to the petitioner for a short period during which he has served the State i.e. during the period 1936-1943. He submitted that the cause of action for filing this petition arose in view of taking of decision by the State Government for sanctioning the compassionate pension to the petitioner and subsequently when the same was cancelled and finally when the representation of the petitioner was rejected by the State Government in the year 2003. It is submitted by Mr. Sinha that, even though the petitioner is not entitled to regular pension till the date of reaching the age of superannuation, there was no reason in not granting the pension for the period for which the petitioner had put in service prior to 1943.
4. On behalf of the State Government, the petition is resisted mainly on the ground that since the petitioner has resigned from the government service in the year 1943 and since he was not dismissed from the service, the petitioner is not entitled for compassionate pension. It is submitted by learned AGP Mr Sheth that it is not a case where the petitioner was removed from the service at the relevant time, but since he has resigned from service, which is a voluntary act, he may not get the pensionary benefits as per BCSR. He submitted that the petitioner has been given the benefit of freedom fighter pension by the Government of India but so far as pensionary benefits as per the service rules are concerned, unless the case of the petitioner falls within the four corners of the BCSR, he cannot get any pensionary benefit. Mr Sheth also alternatively submitted that if it is held that the petitioner is entitled to get compassionate pension as per the rules, whatever amount which has been given to the petitioner towards ex gratia pension is required to be adjusted towards the same and such benefit of compassionate benefit can be made available to the petitioner only from the date of filing of this petition and not for the entire earlier period, i.e. the date on which the petitioner had tendered his resignation.
5. I have heard both the learned advocates in detail and I have also gone through the various documents submitted by both the sides at the time of hearing of this petition. It is required to be noted that as per the documents of both the sides, the following factual aspect is not in dispute:-
(i) The petitioner has served in the Government Department between 1936-1943 and during the aforesaid period, the petitioner had served for 7 years and 5 months at the relevant time;
(ii) Somewhere in the year 1943, the petitioner has resigned from the service for the purpose of joining the freedom movement of the country;
(iii) The petitioner had not made any attempt after 1950 to be reinstated in service;
(iv) The State Government decided to give compassionate pension to the petitioner, for which the Additional Secretary has written a letter to the Principal Secretary on 6th December, 2000; and
(v) The State Government subsequently reviewed the said decision on 6th May, 2002 and informed the petitioner that the petitioner is not entitled to get compassionate pension.
The point which is therefore required to be considered in this petition is whether the petitioner is entitled to get compassionate pension for the service which he has put in between 1936 and 1943 and if he is found eligible, then, from which date.
6. Since the facts of the case are discussed by me in the earlier part of the judgement, at this stage it is necessary to refer to the stand taken by the Government in the affidavit-in-reply. One Shri K.L.Khant, Under Secretary, Forest Department,hasfiled affidavit-in-reply on behalf of the State Government. In paragraph 5 of the reply it is stated as under:-
"With regard to the contentions raised in para 2 of the petition, it is true that the petitioner had worked in the erstwhile State of Baroda from July, 1936 to May 1943. The total period of service as available from the records is 7 years, 5 months & 10 days. Petitioner had resigned on 30th April, 1943 from the service (Annexure-A). It is the contention of the petitioner that he had resigned from the service and had joined freedom struggle in June 1943. It is also the say of the petitioner that the service of the persons who had suffered taking part in freedom struggle were reinstated and their break in the period treated as leave without pay and this period was to be treated for pension. Here, it is to be noted that the petitioner had applied for his reinstatement in the service and benefits of superannuation. On the other hand petitioner has been sanctioned Rs.300/-- monthly pension under "Sainik Sanman Pension Yojana, 1980" introduced by Government of India. In fact, the petitioner is already receiving this pension as a freedom fighter. As per Government policy prevailing at that time Mr Maganlal Harishankar Dave, the brother of petitioner was reinstated in service in the year 1949 (Annexure-B). At that time if the petitioner wanted to join the service, he could have joined in, but petitioner had not applied for it at that juncture and after 20 years of independence. In the year 1968 petitioner had made a representation to take him back in service. As such petitioner's claim was time-barred. Hence, it cannot be compared with his brother's claim, which was within due time. If petitioner had not tendered his resignation in the year 1943, he would have retired in the year 1972. It is clear that after independence he would served in the State Government for 25 years But he had applied to take him back in State service first time in the year 1968 i.e. before four years of his superannuation age. So it become clear that he was not interested in work and hence it is very difficult to accept his claim as he has remained silent for these many years after the freedom movement was over. In spite of the above fact, the State Government has sanctioned him Rs.5,000/-- and Rs.7,500/= as ex gratia payment in November, 1982 and March 2001 respectively. It is submitted before this Hon'ble Court that the petitioner has preferred a Special Civil Application No.5712/84 before this Hon'ble Court. A copy of the oral judgement is attached herewith as Annexure-C. It is submitted by judgment and order dated 11.12.96 petitioner prayer that to treat the case of the petitioner no.1 as in service of the Government up to the year 1972 (date of superannuation) with right to obtain promotions and perquisites available to a government servant and award full pension to the petitioner no.1 that he would be entitled to from the date of his retirement in the year 1972 with right to get gratuity under the rules and the prayer of the petitioner was not granted on the ground no such belated claim can be allowed on the ground that petitioner has participated in the freedom movement of the country. Aggrieved by this Hon'ble Court's order dated 11.12.1996 petitioner had filed LPA No.350/97 in this Hon'ble Court (Annexure-D). The said LPA was dismissed by this Court. The petitioner filed SLP No.6136/98 in the Hon'ble Supreme Court against the judgement of LPA arising out of SCA No.5712/84. The Hon. Supreme Court have dismissed the said SLP (Annexure-E). Aggrieved by this position of the Court cases the petitioner had given in writing on 23rd November, 2000 that he is not being given justice and he will self immolate himself. Resting on some such correspondence from the petitioner, the State Government had given more consideration to his case, as his case had become very much sensitive. A copy of the Govt.letter No.VNM-10-2000-JASAK-22-D1 dated 6th December 2000 addressed to the Principal Chief Conservator of Forests was also given to the petitioner. In this letter it was requested to the Pr.C.C.F. by the Government to prepare the pension case of the petitioner and send it to Director, Pension and Provident Fund in 4 days. On receipts of the pension papers the Director, Pension and Provident Fund had contacted the Department on phone and mentioned the following defects in the proposal and requested to comply the same.
1). All such matters should not be ordered by letter, but, there should be specific order after obtaining concurrence from the Finance Department.
2). This sanction of pension should be decided under Bombay Civil Service Rule 274 and 301 (Annexure-F) Now, papers were again moved to Finance Department for the consideration of this pension case on compensate ground.The Finance Department had opined that the petitioner has rendered only seven years Government duty, which is not enough for obtaining retiring pension. As per provision of BCSR 274, compassionate pension can be sanctioned only in the cases of removal of Govt. employee. It is a significant point that petitioner was not removed from Govt. service but he has rendered resignation from Govt. service and it was sanctioned in year 1943. When the petitioner has wilfully left out the Govt. service, it becomes clear that he was not removed from Govt. service and he can not be entitled from compassionate pension as provided in B.C.S.R.274. Hence, petitioner's demand is against the statutory rules and cannot be accepted. The case of the petitioner was submitted twice before the Government, but, Government has found it unacceptable as per rule and as per verdicts of this Hon. Court, Hon.Supreme Court and Hon. VISAMA Court.(Annexure-G). It is submitted that the petitioner is approximately getting Rs.4220/= as Freedom fighter pension as on today. It is submitted that as petitioner case does not fall in any category not even allowing as a special case. It is submitted, once the petitioner has accepted the freedom fighter pension from Union of India it would be difficult to consider his demand for retiring pension as a special case."
In the said paragraph 5 of the reply, it is further stated that the Finance Department had opined that the petitioner had rendered only 7 years' government duty, which is not enough for obtaining pensionary benefits. As per provision of Rule 274 of B.C.S.R., compassionate pension can be sanctioned only in cases of removal of Govt. employee. It is further stated in the reply that since the petitioner was not removed from the Government service but he has tendered the resignation from the government service, which was sanctioned in the year 1943, it can be said that the petitioner has wilfully left the government service, and that since he was not removed from the government service, he is not entitled to get the compassionate pension as per Rule 274 of the BCSR. During the course of the hearing, the averments made in the reply are reiterated by Mr Sheth. Mr Sheth has also argued that since the petitioner has resigned from the government service in 1943, it is clear that he had wilfully left the government service. Mr Sheth submitted that if the petitioner was removed from the government service, he would have been entitled to the benefit of compassionate pension.
At this stage, it is useful to refer to certain provisions of BCSR. Rule 185 of the BCSR provides as under:-
"Rule 185:
In any case in which pension is not admissible under any specific provision of these rules, Government may sanction the grant of a pension, which shall not save, in the most exceptional circumstances, exceed Rs.40 a month, or of a gratuity not exceeding the equivalent calculated in accordance with the table prescribed under Rule 320-A of the value of such a pension, if the grant is not inconsistent with the general spirit of these rules.
Note 1: See Note 3 below Rule 6 in Appendix XIV-C Note 2: Pension sanctioned under this rule need not be given any special name. They may be styled as "Invalid","Retiring", "Superannuation," or "Extraordinary", in accordance with the circumstances of each case. Such pension should be borne by Government that sanctioned the scheme."
Rule 251 prescribes various types of pension payable to a government servant. Rule 251 reads as under:-
"251. The following different classes of pension may be granted to a Government servant or their families:-
(1). Superannuation pension, which is a pension granted to a Government servant from Government service at an age at which he is by rule entitled or required to retire.
(2). Retiring pension, which is a pension granted to a Government servant who retires voluntarily, or is required by Government to retire from Government service after completing prescribed period of duty and service or duty alone but before reaching the age of superannuation.
(3). Invalid pension, which is a pension granted to a Government servant who retires from Government service, before reaching the age of superannuation, on account of mental or bodily infirmity.
(4). Special additional pension, which is a pension granted to a Government servant in addition to a superannuation, retiring or invalid pension, in consideration of the nature of the duties which he has performed.
(5). Compensation pension, which is a pension granted to a Government servant, otherwise than on medical certificate and for no fault of his own, before earning a retiring or superannuation pension.
(6). Wound or injury pension, which is a pension granted to a Government servant wounded or injured while in Government service.
(7). Compassionate pension, which is a pension granted to a Government servant who is removed from Government service for misconduct, insolvency, or inefficiency.
(8). Family pension, which is a pension granted to the family of a deceased Government servant."
Rule 274 provides for compassionate pension. Rule 274 reads as under:-
"274.. When a Government servant is removed or required to retire from Government service for misconduct or insolvency, or is removed or required to retire from Government service on ground of inefficiency before he is eligible for a retiring or superannuation pension, Government may, if the case is considered deserving of special treatment, sanction the grant to him of a compassionate pension.
Note 1: A dismissed Government servant is not eligible for compassionate pension.
Note 2: See also Rule 186 and 165-A Note 3: Government servants who are removed or compulsory retired from Government service on the ground of inefficiency, insolvency or misconduct, and are granted by Government, compassionate pension under this rule, are eligible to get with the sanction of Government death-cum-retirement gratuity (which shall be subject to the limits prescribed for the amount of pension in the Bombay Civil Service Rule 301) and the reduction of the amount of maximum gratuity admissible being made in the same proportion as is adopted in the case of pension. The grant of family pension should be regulated on the basis of compassionate pension in accordance with the provision in the Section IV of these rules."
Rule 301 prescribes how the pension is payable to a person who has been given the benefit of compassionate pension under Rule 274. Rule 307 provides for the special circumstances under which the compassionate pension can be paid, and the date from which the pension shall be payable to the petitioner. Rule 307 reads as under:-
"307.. Except in cases covered by Rules 291(b) and 309, a pension shall be payable from the date on which the pensioner ceased to be in Government service:
Provided that a pension granted to Government servant in special circumstances long after the retirement shall be payable from the date of sanction unless Government otherwise direct."
As pointed out earlier, the Government has initially sanctioned the aforesaid pension under the head of "compassionate pension", which was subsequently reviewed by the Government, and, ultimately, it was decided not to give pension to the petitioner. It is required to be noted that as per the stand taken by the Government, if the petitioner was removed from the service at the relevant time, as per Rule 274, he would have got the compassionate pension but since he has resigned from the government service, according to the government, he is not entitled for the same. It is required to be noted that at the relevant time when the petitioner was compelled to resign in order to join the freedom movement of the country, the said Rules were not in force and they were enacted in the year 1959. It is, no doubt, true that after 1943, the petitioner never tried to assert his right for being reinstated in service and as he had not remained in service, the provisions of giving option for the purpose of opting for pension scheme etc., naturally, cannot apply to the petitioner because after 1943, he was not in service at all.
Under the above circumstances, the question which is required to be examined is whether the claim of the petitioner for getting compassionate pension, which, initially, the Government decided to give, is a justifiable one or not.
7. The learned AGP Mr Sheth has mainly contested the matter on the ground that the petitioner has left the services voluntarily and therefore, his case cannot be equated with the case of removal from service and therefore he is not entitled to get compassionate pension. At this juncture, however, as per Rule 185 of the BCSR, as quoted earlier, even if pension is not admissible under any specific provision of the BCS Rules, the Government can sanction the said pension under Rule 185 and such pension even need not be described in any special name as provided in note 2 of Rule 185. It is required to be noted that this case cannot be equated with a case where a government servant on his own volition wanted to leave the government service. The resignation of the petitioner is required to be considered in the special facts and circumstances of the case. It is required to be noted that at the relevant time the petitioner had no option but to resign as he wanted to join the freedom movement of the country. Such type of resignation, naturally, has to be considered as a special case.While considering the case of the petitioner, it seems that rule 185 is not taken into consideration. Considering the affidavit-in-reply as well as considering the arguments of learned AGP, the main grievance of the Government for not sanctioning the compassionate pension to the petitioner is that the petitioner has resigned on his own volition. As stated hereinabove, BCSR was enacted after considerable time after the resignation of the petitioner from the government service. If a government servant is removed on the ground of misconduct, he is entitled for compassionate pension as per Rule 274. In the peculiar facts of the case, the resignation of the petitioner in the year 1943 cannot be treated as voluntarily giving up government service as he had resigned from the service for joining the freedom movement of the country, which fact cannot be lost sight of. Under these circumstances, considering the fact that the petitioner was compelled to resign as otherwise he was not allowed to join the freedom movement, such action of the petitioner cannot be treated as voluntarily giving up the government service. This aspect about resignation cannot be taken into consideration keeping aside the facts and circumstances under which the petitioner was compelled to resign. Even otherwise, this type of cases can certainly be treated as falling under the special cases, as, at the relevant time, these provisions were not in existence. In that view of the matter, in my view, the matter is required to be sent back to the State Government for reconsideration. In my view, the case of the petitioner for compassionate pension cannot be thrown out simply because he had left the government service on his own volition in the year 1943. These provisions under BCSR are required to be considered meaningfully so as to advance the object of the Rules. The Government should have read all these provisions in harmony with each other and should have taken a pragmatic view. Even otherwise, as stated earlier, Rule 185 of the Rules was required to be considered at the time of taking the appropriate decision by the State Government. Since the decision is not taken after considering all the aforesaid provisions of BCSR, as quoted hereinabove, and since the resignation tendered by the petitioner cannot be treated as a "resignation" in the sense of Rule 274, as the petitioner was required to resign from the service with a view to joining the freedom movement and not with a view to giving up the employment on his own volition, the decision of the Government cannot be upheld.Under the above circumstances, the State Government is directed to reconsider the question about giving compassionate pension to the petitioner as per the provisions of BCSR, indicated hereinabove.
8. The Government is accordingly directed to take appropriate fresh decision after considering the provisions of BCSR and the Government is also directed to treat this case as a special case in connection with sanctioning pension. The Government may accordingly take appropriate fresh decision on or before 31st December, 2003, taking into account the observations made by this Court and the relevant provisions of BCSR, like Rule 185 as well as Rule 274. The Government may also consider as to from which date the said benefit is to be given and at that time, proviso to Rule 307 may also be taken into consideration. Ultimately, if the Government decides to give pension to the petitioner, such benefit be given to the petitioner with effect from the date on which the Government had earlier decided to sanction the pension to the petitioner, i.e. from 6.12.2000. It will be open for the State Government to adjust whatever amount which is paid to the petitioner by way of ex gratia pension.
The petition is accordingly allowed. Rule is made absolute with no order as to costs.
Writ to be sent down forthwith.
9. Before parting with this matter, the Court places on record its appreciation for the services rendered by Mr. Mukul Sinha, who appeared in this matter as Amicus Curiae, as well as Ms. V.L. Bhatt, for rendering her services in deciding the issue.
It is clarified that this order is passed only in connection with the service rendered by the petitioner for the period from 1936 to 1943 and for the subsequent period, in view of the earlier decisions, the petitioner is not entitled to get any benefit.