Punjab-Haryana High Court
Narinder Nath Saini & Others vs State Of Punjab & Others on 30 July, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CWP No.11275 of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.11275 of 2002
Date of decision:30.07.2012
Narinder Nath Saini & others
......Petitioners
Vs.
State of Punjab & others
...Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. Madan Mohan, Advocate for the petitioners.
Mr. Suveer Sehgal, Additional Advocate General, Punjab.
***
Tejinder Singh Dhindsa, J. (Oral)
The precise grievance as raised in the present petition was seeking directions to the respondent/authorities to work out correct amount of commutation of pension in the light of instructions dated 21.07.1998 i.e. applying the multiplier of 15 and accordingly, release the pensionary benefits.
Vide order dated 15.05.2003, passed by this Court, the matter had been adjourned sine die in terms of granting liberty to revive the hearing of the petition after the decision in LPA No.412 of 2003. It appears that such directions for adjourning the matter sine die was passed on account of wrong impression as LPA No.412 of 2003 was in relation to grant of eligibility certificate for exemption of sales tax under the provisions of Haryana General Sales Tax Rules, 1975 and as such the matter had no relation whatsoever to the claim and controversy raised in the present petition.
CWP No.11275 of 2002 -2-Learned counsel appearing for the State has placed reliance upon the Division Bench judgment of this Court dated 10.10.2002 passed in CWP No.816 of 2002 Rattan Chand & others Vs. Bhakhra Beas Management Board & another. Learned State counsel submits that the claim as raised in the present petition is clearly covered in terms of Division Bench judgment passed in Rattan Chand's case (Supra). Learned counsel appearing for the petitioners clearly concedes that the present petition stands covered in terms of the aforementioned Division Bench judgment. The relevant part of the aforementioned judgment is reproduced as under:
"15. Therefore, the contention of the learned counsel for the petitioners, that instead of multiplier of 12 the multiplier of 15 should be applied in our view is not sustainable and is not provided for either under the Rules or in any of the instructions on which reliance is placed.
16. The emphasis placed on the basis the order of the Hon'ble Lok Adalat in Harinder Pal Singh Sidhu's case (supra) is not of much significance. In the said case, the petitioner retired from the Directorate of Prosecution and Litigation on 30.6.1998. His payment of retiral dues was delayed. He was paid the amount of his G.P.F. one month after his retirement. However, the other retiral dues were delayed by six months from his retirement. The primary claim of the petitioner was for the grant of interest on delayed payment which was declined. The Hon'ble Lok Adalat, however, applied the multiplier of 15 on the basis that commuted portion of pension is eligible for restoration after 15 years from the actual date of commutation. As already noticed above, the Rules and the instructions do not provide for the application of multiplier of 15. The revised instructions dated 21.7.1998 only provide that employees retiring after 1.1.1996 would be permitted to commute pension equivalent to 40% of their basic pension, which was earlier 1/3rd in the manner as indicated above. It is further provided CWP No.11275 of 2002 -3- that the commuted portion of pension would be eligible for restoration after 15 years from the actual date of commutation. This does not in any manner mean that multiplier of 15 is to be applied. In the circumstances, the Hon'ble Lok Adalat, though rightly held that the petitioner therein was entitled to commutation of pension at 40% of the basic pension, however, in our view, it erred in holding that the multiplier of 15 was applicable.
17. The State Government assailed the order dated 17.2.2000 of the Hon'ble Lok Adalat by way of Civil Writ Petition No. 7988 of 2000, which was dismissed on 2.8.2000, in view of the concession given by the learned Advocate General, appearing for the State. Thereafter, the State Government filed Review Application No. 95 of 2001, which was dismissed on 2.5.2001, on the ground that the order was passed in the presence and after hearing the Learned Advocate General for the State, who had examined the matter and stated that he found that the terms in which Award had been made by the Lok Adalat was quite reasonable. It was also observed that the Advocate General had gone on record to state that Government would accept the same and comply with the order and that it had not even remotely been averred that there was a mistake on the part of the Advocate General in making the statement before the court on 2.8.2000. Accordingly, the Review Application was dismissed. Special Leave Petition (C) No. 5038 of 2001 against the order dated 2.5.2001 in Review Application was dismissed on 13.8.2001. The order dated 13.8.2001 passed by the Hon'ble Supreme Court of India reads as under :-
"Since the Advocate General has conceded before the High Court on the basis of which the order was passed we are not inclined to entertain the merits of the objection taken in the Special Leave Petition. The Special Leave Petition is dismissed."
Therefore, it may be noticed that the said case was primarily CWP No.11275 of 2002 -4- considered and disposed of in view of the concession given by the learned Advocate General, Punjab. The Board, however, was not a party to the said litigation. Therefore, the concession is not binding on the Board and it is binding between the parties to the said case. Besides, in the case titled B.S. Bajwa v. State of Punjab, 1998(1) SCT 670 (SC) : (1998) 2 SCC 523, the Additional Advocate General while appearing on behalf of the State extended concession for fixation of seniority from a previous date even when the claim of seniority suffered from laches. This Court accepted the concession. It was held by the Hon'ble Apex Court that the concession made on behalf of the State cannot bind others who would be adversely affected thereby. Those affected persons were held to have an independent right to assail the view taken by the Division Bench.
18. Insofar as the dismissal of the Special Leave Petition in limine is concerned, the same does not mean that the order from which the petition for Special Leave to Appeal was filed has been affirmed by the Hon'ble Apex Court. When the Hon'ble Supreme Court declines to grant leave to appeal then there is no appeal. Consequently, the doctrine of merger or fusing the judgment of the lower court to that of the Appellate Court does not apply to such situation as held by a Full Bench of this Court in Punjab State Electricity Board v. Ashok Kumar Sehgal, AIR 1990 P&H 117. Besides, the Hon'ble Supreme Court in V.M. Salgaocar and Bros. Pvt. Ltd. v. Commissioner of Income-Tax, AIR 2000 Supreme Court 1623, at page 1628 held as follows :-
"Different considerations apply when a special leave petition under Article 136 of the Constitution of is simply dismissed by saying dismissed and an appeal provided under Article 133 is dismissed also with the words `the appeal is dismissed'. In the former case it has been laid by this Court that when special leave petition is dismissed this Court does not comment on the CWP No.11275 of 2002 -5- correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Articles 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under Clause (3) of Article 133. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed order of the High Court is merged with that of the Supreme Court."
19. Similar is the position in case of Kunhayammed and others v. State of Kerala and another, 2000(3) R.C.R.(Civil) 671 : AIR 2000 Supreme Court 2587, wherein it was held as follows :-
"Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter."
20. In a more recent judgment S. Shanmugavel Nadar v. State of T.N. and another, 2002(4) R.C.R.(Civil) 299 : 2002(2) R.C.R.(Rent) 404 : (2002) 8 Supreme Court Cases 361. The ratio of the judgment in Kunhayammed and others case (supra) has been reiterated. In the present case, it is Special Leave petition which has been dismissed and, therefore, the doctrine of merger is in-applicable as there was no appeal before the Hon'ble Supreme Court.
21. Therefore, we are of the view that the case of Harinder Pal Singh Sidhu (supra), which is based on the concession given by the Advocate General Punjab would not in any case, bind the CWP No.11275 of 2002 -6- Board."
Accordingly, the present writ petition is dismissed in terms of the judgment dated 10.10.2002 passed in Rattan Chand's Case (Supra).
The writ petition is dismissed.
July 30, 2012 (TEJINDER SINGH DHINDSA) harjeet JUDGE