Rajasthan High Court - Jaipur
Sugan Chand vs The State Of Raj. And Ors. on 2 April, 1995
Equivalent citations: 1995(3)WLC118, 1995(2)WLN418
Author: P.K. Palli
Bench: P.K. Palli
JUDGMENT J.R. Chopra, J.
1. By this writ petition filed under Article 226 of the Constitution, petitioner Suganchand has challenged the validity of Rule 250 of the Rajasthan Service Rules, 1951 (for short 'the Rules') and Regulation 4(2) of the Rajasthan Public Service Commission (Conditions of Service) Regulations, 1974 (hereinafter to be referred as 'the Regulations) and has prayed for the issuance of an appropriate writ, order or direction to the respondents to pay him pension on the basis of the last pay drawn by him as Member of the Rajasthan Public Service Commission (to be called as 'RPSC').
2. The facts, necessary to be noticed, for the disposal of this writ petition briefly stated are: that initially, the petitioner was appointed as Lecturer in Govt. College in the year 1965 and thereafter, he was promoted to the post of Head of the Department vide order Annexure-1 dated 7.5.1987 with effect from 1.4.1986 in the pay-scale of Rs. 3700-5700. Later on, he was appointed as Member of the RPSC vide order Annexure-2 dated 26.5.1986 and he joined as Member of the RPSC on 28.5.1986. He was also appointed as Chairman of the RPSC on officiating basis vide order dated 27.11.1989 and he continued on that post till 5.9.1990 when Shri Yatindra Singh was appointed as Chairman of the RPSC.
3. It has been contended that alter joining as Member of the RPSC, the petitioner had opted for fixation of his pension as per the provisions of Regulation 8(2) of the Regulations, which is clear from letter Annexure-5 dated 22.7.1991. It has been further contended by the petitioner that he retired as Member of the RPSC on 27.5.1992 and at that time the last pay drawn by him was Rs. 6,000/- and, therefore, he is entitled to pension on the last pay drawn by him as Member of the RPSC. According to the petitioner, the respondents have prepared and finalised his pension case on the basis of the last pay drawn by him as Head of the Department and not as Member of the RPSC.
4. He has submitted that the payment of pension to the Govt. servants is governed by the provisions contained in part III of the Rules and computation of pension of a Govt. servant is to be made as per Rule 256-D of the Rules. Rule 250 of the Rules defines emoluments, which reads as under:
Rule 250. Definition of 'Emoluments'- The term "Emoluments" when used in this Part of the Service Rules, means the emoluments, which the Govt. servant was receiving immediately before his retirement and includes:
(a) Substantive pay in respect of a permanent post other than a tenure post held in a substantive capacity.
(b) Special pay drawn by a Govt. servant in consideration of the specially arduous nature of duties or of increased work and responsibility or for discharge of duties which do not properly belong to his office for which there is no sanctioned post.
(c) Personal pay which is granted in lieu of substantive pay in respect of a permanent post other than a tenure post.
(d) Omitted.
(e) ...
(2) ...
He has, therefore, contended that the pay admissible to him as Member of RPSC was his substantive pay within the meaning of Rule 250 of the Rules and, therefore he is entitled to get pension on the pay which was admissible to him as Member of the RPSC. According to him on becoming a Member of the RPSC, he has retired from service before completion of 52 years of age, whereas if he had remained in Govt. service, he would have retired on attaining the age of 58 years.
5. According to the petitioner, he was appointed as officiating Chairman vide order dated 27.11.1989 and he has worked as officiating Chairman from 27.11.1989 to 5.9.1990 and, therefore, he is entitled to the salary of Chairman of RPSC from 27.11.1989 to 5.9.1990. He has submitted that in such similar circumstances, one Shri D.D. Chouhan, who was also appointed as officiating Chairman, was also paid the salary of Chairman for the period during which he worked as officiating Chairman.
6. A return has been filed on behalf of the respondents, whereby, it has been contended that the State Public Service Commission is constituted under Article 315 of the Constitution. Article 316 provides for the appointment of Chairman and other members of the Public Service Commission. Article 316(1-A) provides that if the Office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under Clause (1) to the vacant office has entered on the duties thereof or as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission and the Governor of the State in the case of a State Commission, may appoint; for the purpose. Article 316(2) further provides that a member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of Union Commission, the age of sixty-five years and in the case of a State Commission, or a Joint Commission, the age of Sixty two years, whichever is earlier. Article 316(3) categorically provides that a person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that post. Article 319(b) further provides that on ceasing to hold office, the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Govt. of India or under the Govt. of a State. Thus a Member or a Chairman of a State Public Service Commission can hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, whichever is earlier.
7. The Chairman and Members of the R.P.S.C. are governed by the Public Service Commission (Conditions of Service) Regulations, 1974, which have been framed by His Excellency the Governor of Rajasthan in exercise of the powers conferred upon him by Sub-clause (a) of Article 318 of the Constitution. It has been submitted that as per Regulation 5, a member who, on the date of his appointment to the Commission, was in the Service of the Central or a State Govt., shall be deemed to have retired from such service with effect from the date of his appointment as member of the Commission. Reference has also been made to Regulations 8, 9 and 10 of the Regulations and it has been averred that the petitioner has opted for grant of pension under Regulation 8(2) and, therefore, his tenure of six years as Member of the RPSC is only to be added for the purpose of computation of his pension, otherwise for all good purposes, he has retired from Govt. service from the date he joined as Member of the Commission.
8. According to the respondents, the case of the petitioner cannot be governed by the provisions of the Rajasthan Service Rules but his case is governed by the provisions of the aforesaid Regulations. It has been submitted that the pension case of the petitioner has been prepared and finalised and a P.P.O. has already been issued to him fixing his pension as Rs. 1720/- less commutation Rs. 573/-. Thus, the net pension payable to him is Rs. 1147/- + Dearness Allowance with effect from 28.5.1992. It has also been averred that the petitioner has already been paid Gratuity on the pay of Rs. 4450/-, which was worked out after calculating his notional pay for six years. According to the respondents, the petitioner is not entitled to the salary of Chairman but he is only entitled to the payment of Rs. 200/- per month as special pay for four months as per Regulation 4(2) of the Regulations.
9. A rejoinder has also been filed asserting the contentions raised in the writ petition. Written arguments have also been filed on behalf of both the parties. The petitioner has also filed additional submissions.
10. We have heard Mr. M.S. Singhvi, the learned Counsel appearing for the petitioner and Mr. L.S. Udawat, the learned Additional Advocate General for the State and have carefully gone through the record of the case.
11. Rule 2 of the Rules deals with extent of application and proviso (2) of Rule 2(iii)(b) lays down that these Rules shall not apply to the Chairman and Members of the Rajasthan Public Service Commission, who will be governed by regulations made under Article 318 of the Constitution of India. Thus, it is clear that the provisions of Rajasthan Service Rules are not applicable to the Chairman and Members of the Rajasthan Public Service Commission. The Chairman and Members of the Rajasthan Public Service Commission are only governed by the Regulations made under Article 318 of the Constitution as regards conditions of their service. In exercise of the powers conferred by Sub-clause (a) of Article 318 of the Constitution. His Excellency the Governor of Rajasthan has framed Rajasthan Public Service Commission (Conditions of Service) Regulations, 1974.
12. Regulation 5 provides that a member, who on the date of his appointment to the Commission, was in the service of the Central or a State Govt., shall be deemed to have retired from such service with effect from the date of his application as member of the Commission. As stated above, the petitioner has joined as Member of the RPSC on 28.5.1986 after being relieved from his parent department on 27.5.1986. Thus, he will be deemed to have retired from Government service on 27.5.1986. Regulations 6 and 7 pertain to the leave admissible to a member in the service of the Central or a State Govt. or to a member who was not in the service of the Central or a State Govt. respectively. Regulation 8 relates to the pension payable to the members, who were in the service of the Central or a State Govt. and it reads as under:
8. Pension payable to member who were in the service of the Central or a State Govt.
(1) A member who, at the time of his appointment as such, was in the service of the Central or a State Govt., shall, at his option to be exercised within a period of six months from the date of his appointment be entitled to draw his pension and other retirement benefits under the rules applicable to the service to which he belonged with effects from the date of his appointment as Member;
Provided that, in such an event, his pay as member shall be reduced by an amount equivalent to the gross pension (including any portion of the pension which may have been commuted) and the pension equivalent of other retirement benefits and he shall be entitled to draw his pension and other retirement benefits separately.
(2) Notwithstanding any thing contained in Regulation 5, a Member who at the time of his appointment as such, was in the service of the Central or State Govt., if he does not exercise the option mentioned in Sub-regulation (1), shall count his service as member for pension and retirement benefits under the rules applicable to the service to which he belonged immediately before such appointment.
Regulation 9 deals with pension payable to members who were not in the service of the Central or a State Govt. etc. As stated above, prior to his appointment as Member of the RPSC, the petitioner was in the Govt. service and, therefore, Regulation 9 will not govern his case for pension. Regulation 10 provides 'when pension not payable'. Regulation 11 deals with provisions for provident fund in respect of a Member who was in the service of the Central or a State Govt. Regulation 12 deals with option to subscribe to the Central Provident Fund. Regulation 3(2) provides that a member may be appointed by the Governor to perform the duties of Chairman absent on Leave or on the occurrence of a vacancy in the office of the Chairman until some person has been permanently appointed to the office and has entered upon the duties thereof. Regulation 4 pertains to the pay of the Chairman and Members of the Commission. Regulation 4(2) provides that the member appointed under Regulation 3(2) to perform the duties of the Chairman shall receive for the period that he performs such duties the salary to which he is entitled as a Member of the Commission plus Rupees Two Hundred per month as additional remuneration provided that such additional remuneration shall not be admissible if the period is less than 30 days and it will be admissible only for a maximum period of four months.
13. In his writ petition, the petitioner has also contended that if Rule 250 of the Rules excludes for computation of pension the last pay drawn by a Member of the Commission, then it be declared illegal and struck down. Likewise, he has also contended that Regulation 4(2) of the Regulations be also declared null and void and be struck down. So far as Regulation 4(2) of the Regulations is concerned, the petitioner has failed to point out as to how, it is against the Constitution. If a person who is appointed as Member of the Commission is asked to perform the duties of Chairman of the Commission absent on leave or on the occurrence of a vacancy in the office of the Chairman then he only officiates as Chairman of the Commission and he does not become a Chairman of the Commission and in that event, he is only entitled to the emoluments that are payable to him under Regulation 4(2) of the Regulations. This adhoc arrangement does not amount to his permanent absorption as Chairman and, therefore, it is only a case where the petitioner who was Member of the Commission was given the charge of a higher office i.e. Chairman of the Commission till the permanent Chairman joins. Thus, there is no unconstitutionally involved in Regulation 4(2) of the Regulations. If somebody else was posted as officiating Chairman and he retired as officiating Chairman, he should have also been paid additional remuneration as provided in Regulation 4(2) of the Regulations but if he has wrongly been paid the salary of the Chairman, that cannot be allowed to form a precedent because that action was against the Regulations. A wrong act cannot be cited to discredit the Regulations framed by His Excellency the Governor of Rajasthan in exercise of his powers conferred under Article 318 of the Constitution. In this view of the matter, when the petitioner has worked as officiating Chairman of the RPSC from 27.11.1989 to 5.9.1990, as per the provisions of Regulation 4(2) of the Regulations, he is only entitled to the salary as a Member of the Commission plus Rupees Two Hundred per month as additional remuneration only for a maximum period of four months. Thus, there is no illegality in Regulation 4(2) of the Regulations and so, the contention of the petitioner that he be paid regular salary of the Chairman for the period during which he worked as officiating Chairman cannot be sustained.
14. So far as the contention of the petitioner regarding fixation of his pension on the basis of his last pay drawn as Member of the RPSC is concerned, this too cannot be sustained. In his writ petition, the petitioner has made reference to Rule 250 of the Rules, which defines 'Emoluments' as under:
Rule 250. Definition of Emoluments:The term 'Emoluments' when used in this part of the Service Rules, means the emoluments which the Govt. servant was receiving immediately before his retirement and includes:
(a) Substantive pay in respect of a permanent post other than a tenure post held in a substantive capacity.
(b) Special pay draw by a Govt. servant in consideration of the specially arduous nature of duties or of increased work and responsibility or for discharge of duties which do not properly belong to his office for which there is no sanctioned post.
(c) Personal pay which is granted in lieu of substantive pay in respect of a permanent post other than a tenure post.
(d) Omitted
(e) Officiating pay of a Govt. servant without a substantive appointment if the officiating service counts under Rule 188 and allowances drawn by an officer appointed provisionally substantive or substantively pro-tempore, or in an officiating capacity to an office which is substantively vacant and on which no Govt. servant has a lien or to an office temporarily vacant in consequence of the absence of the permanent incumbent on leave without allowance or on transfer to Foreign Service.
(2) In the case of Govt. servant with a substantive appointment who officiates in another appointment or holds a temporary appointment, 'Emoluments' means:
(a) the emoluments which would be taken into account under this rule in respect of the appointment in which he officiates or of the temporary appointment as the case may be, or
(b) the emolument which would have been taken into account under this rule had he remained in his substantive appointment, whichever are more favourable to him.
Thus, Rule 250 of the Rules, which defines 'Emoluments' categorically provides that the term 'Emoluments' when used in this part of the Service Rules, means the emoluments, which the Govt. servant was receiving immediately before his retirement. As stated above, before joining as Member of the RPSC on 28.5.1986, the petitioner was in Govt. service and, therefore, as per Regulation 5 of the Regulations, he is deemed to have retired from Govt. service with effect from 27.5.1986, the date on which he was relieved to join his new assignment as Member of the RPSC. Thus, for the purpose of computation of pension of the petitioner, the emoluments which he was receiving immediately before his retirement can only be taken into consideration as per Rule 250 of the Rules and this emolument includes his substantive pay in respect of a permanent post other than a tenure post held in a substantive capacity and the special pay drawn by him in consideration of the specially arduous nature of duties or of increased work and responsibility or for discharge of duties which do not properly belong to his office for which there was no sanctioned post.
15. In this respect, it has been contended by Mr. L.S. Udawat, the learned Counsel appealing for the respondents that a Member of the RPSC is not a Govt. servant but he is a constitutional functionary. In this respect, he drew our attention to a Full Bench decision of this Court in Har Govind Pant v. Chancellor, University of Rajasthan and Ors. , which has been upheld by their lordships of the Supreme Court in Har Govind v. Raghukul , wherein it has been held that the Office of Governor of a State is not an employment under the Govt. of India and it does not, therefore, come within the prohibition of Clause (d) of Article 319 of the Constitution.
16. Mr. Udawat further drew our attention to a decision of this Court in Dr. Chandrabhansingh v. State of Raj. , wherein it has been held that ex-member of a State Public Service Commission is not debarred under Article 319(d) of the Constitution from being appointed as Advocate General for the State, since the Office of the Advocate General is not an employment under the State Govt. within the meaning of Article 319(d).
17. It is, therefore, clear from these authorities that the office of the Member of the Public Service Commission is not an employment under the State Govt. within the meaning of Article 319(d) as the Member of the Public Service Commission is a Constitutional functionary.
18. As stated above, Rule 250 of the Rules pertains to the 'emoluments' which are drawn by a Govt. servant and as the Office of the Member of the Public Service Commission is not an employment under the State Govt. within the meaning of Article 319(d) of the Constitution as the Member of the Public Service Commission is a constitutional functionary and so, the emoluments drawn by a Member of the Public Service Commission cannot be treated as emoluments drawn by that member as a Govt. servant.
19. It has been next contended by Mr. M.S. Singhvi, the learned Counsel appearing for the petitioner that since the petitioner has retired after 1.4.1970 and, therefore, his case will be governed by Rule 250(c) and Rule 7(24) of the Rules. Rule 7(24) of the Rules defines 'pay', which means the amount drawn monthly by a Govt. servant as the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and (ii) special pay and personal pay, and (ill) any other emoluments which may be specially classed as pay by the Governor. Rule 7(24) of the Rules defines pay of the Govt. servant and not the pay of a member of the Public Service Commission and, therefore, even if the petitioner has retired after 1.4.1970, the last pay drawn by him as Member of the Public Service Commission shall not be treated as emoluments drawn by him as a Govt. servant on 27.5.1986 on his elevation as a Member of the Rajasthan Public Service Commission.
20. It is an admitted case of the parties that after joining as Member of the RPSC, the petitioner did exercise his option for fixation of his option as per Regulation 8(2) of the Regulations, which provides that notwithstanding any thing contained in Regulation 5, a Member who at the time of his appointment as such, was in the service of the Central or a State Govt., if he does not exercise the option mentioned in Sub-regulation (1), shall count his service as member for pension and retirement benefits under the rules applicable to the service to which he belonged immediately before such appointment. Thus, the benefit of the services rendered as Member of the Public Service Commission has been allowed to a Govt. servant only for the purpose of computation of pension and retiral benefits under the rules applicable to the service to which he belonged immediately before such appointment. Regulation 8(2) does not provide that for the purpose of computation of pension, the pay which he was drawing as a Member of the Public Service Commission will be computed as his last drawn salary. As stated above, the Rajasthan Service Rules do not apply to the Members of the Rajasthan Public Service Commission as per Clause (d) of second proviso to Rule 2(iii)(b) of the Rules and, therefore, the case of the petitioner for computation of his pension will be governed by Regulations. Regulation 5 categorically provides that a member who, on the date of his appointment to the Commission, was in the service of the Central or a State Govt., shall be deemed to have retired from such service with effect from the date of his appointment as member of the Commission. Article 319(d) of the Constitution also provides that on ceasing to hold office, a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman of any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Govt. of India or under the Govt. of a State. Under these circumstances, for all good purposes, the petitioner has retired from Govt. service on 27.5.1986 on his elevation as a Member of the RPSC. It has been submitted by Mr. Udawat that for the purpose of computation of his pension, as per Regulation 8(2), his six years service as Member of the RPSC has been added to the services which he rendered as a Govt. servant and accordingly, his pension has been computed.
21. As stated above, Regulation 8(2) nowhere provides that for the purpose of computation of pension of a Member of the RPSC, who prior to his elevation as Member was in the service of the Central Govt. or the State Govt., the last pay drawn by him as Member of the RPSC shall be treated to be his last pay drawn by him as a Govt. servant. As stated above, Rajasthan Service Rules are only applicable to the Govt. servants and not to the members of the RPSC. It is only by fiction that the period spent by a Member of the RPSC has been added to his Govt. service for the purposes of computation of his pension and other retiral benefits and it has to be interpreted as such only. The fiction created by a statute cannot be extended beyond the purpose for which it is created in the Statute and it cannot be extended for importing another fiction. In this respect, we place reliance on a Division Bench decision of this Court in Mahendra Surana and Ors. v. State of Raj. and Anr. 1993(1) RLR 277.
22. As stated above, Rule 250 of the Rules governs the pay of the Govt. servant. The petitioner is deemed to have retired from the Govt. service on 27.5.1986 on his elevation as a Member of the RPSC. Rule 8(2) categorically provides that the period spent by a Member of the RPSC will be counted for the purpose of computation of his pension as a Govt. servant and, therefore, this fiction can only be extended to that extent. It cannot be further extended to include the last pay drawn by him as a Member of the RPSC to be treated as last pay drawn by him as a Govt. servant. On the basis of this legal fiction, Rule 250 of the Rules cannot be declared as ultravires of the Constitution. When a person ceases to be a Govt. servant on joining as Member of the RPSC and he has been further debarred from rejoining Govt. service, it clearly means that he has retired from service for all practical purposes on the date he joined as Member of the RPSC. It is only for the purpose of computation of his pension and other retiral benefits that it has been provided as a legal fiction in Regulation 8(2) that his term as Member of the RPSC shall be counted for the purposes of his pension and other retiral benefits. Thus, Rule 250 of the Rules is neither invalid nor ultra vires of the Constitution.
23. It has been next contended by Mr. Singhvi that the words of a Statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Reliance, in this respect, has been placed on a decision of their lordships of the Supreme Court in Workmen, D.T.E. v. Management D.T.E. and on another decision of Hon'ble Supreme Court in New India Sugar Mills v. Commissioner, Sales Tax AIR 1963 SC-1207. There is not conflict about this proposition of law. In this case, Regulation 5 categorically provides that a member who, on the date of his appointment to the Commission, was in the service of the Central or a State Govt. shall be deemed to have retired from such service with effect from the date of his appointment as Member of the Service. It is only by fiction of law, it has been provided in Regulation 8(2) that the term of a Member of the Commission shall be included in his Govt. service for the purpose of computation of his pension and other retiral benefits. These provisions do not provide that the last pay drawn by a Member of the Commission shall be treated to be the last pay drawn by him as a Govt. servant. Under these circumstances, this contention raised by Mr. Singhvi also cannot be sustained.
24. In the result, we find no force in "this writ petition and therefore, it is hereby dismissed. There will be no order as to costs.