Jharkhand High Court
Raju Gope vs Union Of India Through Its Secretary on 22 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3933 of 2023
Raju Gope, aged about-44 years, S/o Late Gangadhar Gope, R/o Mandru
Sahi, Ward No. 8, P.O. + P.S.- Kharswan, Dist: Seraikella-Kharswan,
Jharkhand ...... Petitioner
Versus
1. Union of India through its Secretary, Ministry of Defence, South
Block, P.O. + P.S.- New Delhi, Dist:New Delhi
2. Chief Post Master General, Jharkhand, Circle, Doranda, P.O. + P.S.-
Doranda, Ranchi, Jharkhand
3. Sr. Supdt. Of Post Offices, Singhbhum Division, P.O. +P.S.-
Jamshedpur, Dist: East Singhbhum, Jharkhand
4. A.A.O/N.P.S., Postal Accounts Office, Jharkhand Circle, Doranda,
P.O. + P.S.- Doranda, Ranchi, Jharkhand. ......Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. Abhishek Kumar Dubey, Advocate For the Respondent(s) : Mrs. Leena Mukherjee, Advocate .....
Order No.06/ Dated:22.01.2024 Per Sujit Narayan Prasad, J
1. The writ petition has been filed for quashing of order dated 13.02.2023 (Annexure 8) passed by learned Central Administrative Tribunal Patna Bench in OA No.051/00097/2021 whereby and where under learned Central Administrative Tribunal has rejected the prayer of the petitioner to pay him the entire pension amount payable to his father for the period 01.10.2014 to 28.09.2019 (with defaulting interest on account of unreasonable delay), as per the old pension scheme and for issuance of appropriate writ(s)/Order(s)/ direction (s), in the nature of 2 W.P.(S) No.3933 of 2023 mandamus directing the concerned respondents to pay to petitioner entire pension amount payable to his father for the period 01.10.2014 to 28.09.2019 (with defaulting interest on account of unreasonable delay), as per the old pension scheme, after deducting the amount already paid.
2. The brief fact of this case as per the pleading made by the writ petitioner required to be consider.
3. It is evident from the pleading made as referred herein above that the father of the writ petitioner, namely, Gangadhar Gope, was working as Gramin Dak Sevak and he was recommended by Departmental Promotion Committee, in its meeting held on 17.10.2003 for appointment as Group D cadre for the year 2000 and 2001 in the department of post in the same year, i.e. sometime in the year 2003, however the father of the appellant joined on 10.02.2004.
4. Father of the petitioner after serving for the period of more than 10 years of continuous service has retired on attaining the age of superannuation on 30.09.2014. It is the grievance of the writ petitioner that initially the file was processed after retirement of his father for fixation of pension under the Old Pension Scheme which was prevalent up to 31.12.2003. However, on 01.01.2004 the old pension scheme has been substituted by National Pension Scheme (NPS). But subsequently, the said file was returned by the concerned Section of the department based upon the date of appointment of the father of writ petitioner which is 10.02.2004.
5. The father of the writ petitioner, in the meanwhile, has died on 28.09.2019, thereafter, the writ petitioner being the son of the concerned 3 W.P.(S) No.3933 of 2023 employee, namely, Gangadhar Gope has agitated grievance for the purpose of holding his father entitlement for pension under the old pension scheme, by filing representation to the concerned respondents asking them as to why the petitioner's father was not paid pensionary benefit despite rendering 10 years of continuous service.
6. The said representation was dealt with by the authority and a decision was taken on 04.11.2019 (annexure 5). The writ petitioner aggrieved with the said order has challenged by approaching the learned Central Administrative Tribunal along with the consequential prayer to extend the benefit under the old pension scheme on the ground that his father was already working in the Dak Sevak and prior to 01.01.2004 the selection process for such appointment was already completed.
7. The learned Tribunal after calling upon the respondents wherein, ground has been taken by the concerned respondents by disputing the said claim upon the reason that the benefit of deduction from the salary has already been availed by late father of the writ petitioner which was requisite condition for the purpose of getting the benefit of CPF under the NPS.
8. Learned Tribunal based upon the aforesaid fact has come to the findings that once the father of the writ petitioner has accepted the benefits to be given CPF under the NPS, now is not available for his son to make a claim that his father should be under the fold of the old pension scheme.
9. Hence, the order passed by the learned Tribunal is under question in this writ petition.
4 W.P.(S) No.3933 of 2023
10. Learned counsel Mr. Abhishek Kumar Dubey appearing for the petitioner has argued this case by questioning the said order inter alia, on the following grounds.
I. The father of the writ petitioner has already worked as Gramin Dak Sevak and being a senior Gramin Dak Sevak employee Departmental Promotion Committee in its meeting dated 17.10.2003 recommended the name of the father of the petitioner for appointment on the post of regular cadre in group D service which was communicated to him vide Memo dated 10.11.2003. His father has joined on 09.02.2004, hence, submission has been made that the father of the writ petitioner was already working and even though he has been appointed on 10.02.2004 the same will be construed to have no effect because his father was already in the roll of the respondent prior to 01.01.2004.
II. Second ground has been taken that the process of selection for the purpose of fulfilling the post of Gram Dak Sevak, on substantive basis has already been completed even prior to 01.01.2004. Therefore, the moment the entire process was completed then there is no question of denial of the benefit under old pension scheme.
III. Third ground has been taken that since the process of selection has already been completed and have known that the father of the applicant has not joined prior to 01.01.2004 but the said selection process has been completed prior to 01.01.2004 and as 5 W.P.(S) No.3933 of 2023 such a right has been accrued in favour of the late father to be in the old pension scheme.
11. The learned counsel for the petitioner based upon the aforesaid ground submitted that the learned tribunal has not allowed the original application on the principle of estoppel merely because the deceased father of the petitioner has accepted the contribution which was made from the salary which was required for the purpose of getting the benefit under new pension scheme. Submission has been made in this regard that merely an amount has been deducted from the salary that will not create estoppel so far as the right to get the benefit of pension under the old pension scheme is concerned.
12. Learned counsel for the petitioner based upon the aforesaid grounds has submitted that the learned tribunal has failed to appreciate these grounds and as such the order passed by the learned tribunal suffers from error and as such not sustainable under law.
13. Per contra, learned Central Administrative Government counsel, Mrs. Leena Mukherjee appearing for the respondent has vehemently opposed the said ground by defending the impugned order.
14. It has been submitted by her that the learned tribunal while rejecting the claim of the writ petitioner denying the benefit to be given under old pension scheme cannot be said to suffer from any error due to the reason that his father during his life time has availed the benefit under new pension scheme by allowing deduction from his salary. It has been contented that the moment the old pension scheme has been substituted from the NPS then all the employees enrolled will be in fold of the NPS. 6 W.P.(S) No.3933 of 2023
15. The further submission has been made that the ground has been taken on behalf of the writ petitioner that process of selection since has been completed prior to 01.01.2004 and hence the right has been accrued in favour to get the benefit of pension under the old pension scheme cannot be said to be correct proposition due to the reason that the father of the petitioner has not accrued any right, since, he has not joined his duty prior to 01.01.2004.
16. The ground has also been taken that the question of accrual of right will of the paramount consideration and once the late father of the writ petitioner has accepted the benefit, now it is not available for the writ petitioner in capacity of legal heirs to come forward and claim the benefit under old pension scheme contrary to the wish of his father who has not questioned the said deduction which was made from the salary as per the condition of the NPS.
17. The submission has been made based upon the aforesaid ground that the learned tribunal after taking into consideration these facts has dismissed the original application, the said order cannot be said to suffer from any error and hence, this writ petition is fit to be dismissed.
18. Heard the learned counsel for the parties and gone across the finding on record of the learned trial court.
19. The order dated 13.02.2023 passed by learned Central Administrative Tribunal Patna Bench, Circuit Bench, Ranchi in OA No. 051/00097/2021 whereby and whereunder the claim of the writ petitioner for benefit to be given under old pension scheme by virtue of the fact that the father of the petitioner although came in service as per recommendation by the 7 W.P.(S) No.3933 of 2023 Departmental Promotion Committee, which was held on 17.10.2003 but joined on 10.02.2004, while the National Pension Scheme, (NPS) has come into force from 01.01.2004.
20. The learned Tribunal has refused the same benefit on the ground that no such grievance was ever been raised by the father of the writ petitioner during his lift time, rather, the deceased father has accepted the deduction from the salary which was required to be deducted under the NPS for the purpose of getting the benefit under the Contributory Provident Fund (CPF).
21. This court before proceeding with to examine the legality and propriety of the impugned order deem it fit proper to refer the law on accrued vested right. The vested right has been defined in Black's Law Dictionary (6th Edition) at page-1563, means fixed; accrued; settled; absolute; complete.
Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.
In Webster's Comprehensive Dictionary (International Edition) at page-1397, the word 'vested' is defined as a tenure subject to no contingency; complete; established by law as a permanent right, vested interest.
8 W.P.(S) No.3933 of 2023The word 'vested' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word 'vest' has also acquired a meaning as "an absolute or indefeasible right". It had a 'legitimate' or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfillment due to change in law by the legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course. In the light of the definition of the "vested right", it is evident that right accrues to person or persons attached to an institution or building or anything whatsoever, meaning thereby, if an incumbent is claiming a vested right, he is to substantiate before the court of law that the right has been created in his favour by an order passed in pursuance to the applicable law.
Further it is evident from the meaning of the 'vested' as per the Black's Law Dictionary which means the settled or absolute right and the settled or absolute right will only be said to be a right in this nature if the right has been created as a permanent right."
22. The word accrued and vested right has elaborately been dealt with the Hon'ble Apex Court in the case of MGB Gramin Bank v. Chakrawarti 9 W.P.(S) No.3933 of 2023 Singh, (2014) 13 SCC 583, relevant paragraph needs to be referred herein which reads as under:
11. The word "vested" is defined in Black's Law Dictionary (6th Edn.) at p.
1563, as:
"Vested.--fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute 'vested rights'."
12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, "vested" is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.
23. It is evident from the aforesaid judgment that the accrued right is said to be a right which has legally been accrued in favour of a party said to be vest upon him and before snatching away the said right procedure has been laid down under law need to be followed.
24. This Court is now proceeding to examine as to whether the father of the writ petitioner has got any vested right to benefit of pension under old pension scheme.
25. This Court in order to consider the aforesaid issue has taken in to consideration the some admitted facts herein.
26. Admittedly, herein, the father of the writ petitioner was working as Gram Dak Sevak but not on substantive basis rather, on ad hoc basis in temporary capacity.
27. Thus, it is admitted case of the petitioner that the father of the petitioner was not under the regular establishment which is the pre- 10 W.P.(S) No.3933 of 2023 condition for getting the benefit of pension under the Central Civil Services Pension Rule, 1972 as under 49 thereof, for the assumption Rule 49 of the said rule is being referred as.
49. Amount of Pension 5[ (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service. {(1A) The dearness allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule (1).} Inserted vide notification GSR No.928 (E), dated 21st December, 2012 [F.No.38/80/08- P&PW] (2) [In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensem and maximum of forty-five thousand rupees per mensem.]; Substituted vide notification GSR No.928 (E), dated 21st December, 2012 [F.No.38/80/08- P&PW] (2A) In addition to pension admissible in accordance with sub-rule (2), after completion of eighty years of age or above, additional pension shall be payable to the retired Government servant in the following manner:-
Age of Pensioner Additional pension
From 80 years to less than 85 years 20% of basic pension
From 85 years to less than 90 years 30% of basic pension
From 90 years to less than 95 years 40% of basic pension
From 95 years to less than 100 years 50% of basic pension 100 years or more 100% of basic pension *substituted vide notification GSR No.928 (E),dated 21st December, 2012 [F.No.38/80/08-P&PW] 2(3) In calculating the length of qualifying service, fraction of a year equal to 3[three months] and above shall be treated as a completed one half-year and reckoned as qualifying service.
2(4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee. 4(5) & (6) Deleted
28. The substantive service has been defined which means that the service of a person is of the regular establishment being protected by the service code and the applicable conduct rules.
11 W.P.(S) No.3933 of 2023
29. Herein, the admitted case of the writ petitioner is that his father was working not under the substantive capacity, rather, on ad hoc basis that is the reason his father, when got a chance to participate in the process of selection for appointment as Dak Gram Sevak in substantive capacity, has offered his candidature for the same before the duly constituted Departmental Promotion Committee.
30. A meeting of the Departmental Promotion Committee was conducted on 17.10.2003 in which, the father of the appellant was found to be eligible and a selection list was prepared as appended as annexure 2 to the writ petition.
31. It is further admitted fact that the father of the writ petitioner had joined in the substantive capacity only on 10.02.2004.
32. The contention has been made that since the father of the appellant was working in the Dak Gram Sevak and joined on 10.02.2004. Hence, the said joining given by his late father on 10.02.2004 is to be treated as continuity in service treating the ad hoc service under the regular establishment.
33. The question herein is that on the one hand if the petitioner had accepted the fact that his appointment prior to 10.02.2004 was in ad hoc capacity then where is the question to derive the benefit by coming to the conclusion that the service rendered by his father on ad hoc basis as Gramin Dak Sevak to be treated on substantive basis on the day he had been inducted in service to allow to discharge his duty in ad hoc capacity as on the said post; Otherwise, if the same plea is accepted by this Court 12 W.P.(S) No.3933 of 2023 then question will be that for what purpose the Departmental Promotion Committee was constituted.
34. The accrual of right is only to be made in favour of the holder of the substantive post, meaning thereby, if the appointment will be against the substantive post, then concerned employee i.e. the holder of the said post will be said to have lien in his favour and only in such circumstance, appointment will be said to be substantive in nature. So long as the service of one and other in not under substantive capacity, rather, ad hoc capacity, then there is no question of creation of lien by such person against the post which was holding. The reference of judicial pronouncement in this regard is also required to be made on the issue of 'lien'.
(i) The Hon'ble Apex Court in the case of State of Rajasthan & Anr.
vs. S.N. Tiwari & Ors, (2009) 4 SCC 700 has been pleased to hold by taking into consideration the applicable rule under Rajasthan Service Rules as would appear from paragraph nos. 14, 15, 17, 18, 19 and 21. For ready reference, the said paragraphs are being referred as under:
"14. It is not the case of the State that any competent authority terminated the lien of the respondent in the parent department. There is no material made available by the State to show that the respondent had been confirmed in any permanent post and that he was holding that appointment in a substantive capacity on permanent basis. On the other hand, even while working as homoeopathic doctor in ESI Corporation, the respondent employee obtained directions as against the State and the Directorate of Economics and Statistics Department to determine the yearwise vacancies and to make promotions from the post of Statistical Inspector to Statistical Assistant in accordance with the Rules. That order attained its finality. The same would demonstrate that the 13 W.P.(S) No.3933 of 2023 respondent employee always had a lien in the Department of Economics and Statistics.
15. It may be necessary to notice Rule 18 of the Rajasthan Service Rules which is reproduced in its entirety hereunder:
"18. Termination of lien. -- (a)A government servant's 'lien' on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a 'lien' or a suspended 'lien' upon a permanent post.
(b) A government servant's lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Governments) outside the cadre on which he is borne."
A bare reading of the Rule makes it clear that a government servant's lien on a post cannot be terminated in any circumstances even with his consent if it results in leaving the government servant without a lien or a suspended lien upon a permanent post. A government servant's lien on a post stands terminated only on his acquiring a lien on a permanent post outside the cadre on which he is borne.
17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the 'lien' of the employee shifts to the new permanent post. It may not require a formal termination of 'lien' over the previous permanent post.
18. This Court in Ramlal Khurana v. State of Punjab [(1989) 4 SCC 99 : 1989 SCC (L&S) 644 : (1984) 11 ATC 841] observed that: (SCC p. 102, para 8) "8. ... lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
19. The term "lien" comes from the Latin term "ligament" meaning "binding". The meaning of 'lien' in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed.
21. Be it noted that no objections were raised when the respondent employee gave his option on 8-4-1991 duly informing all the concerned that his lien in the Subordinate Statistical Service had to be maintained for the purposes of promotions to higher posts/protection of financial interests, etc. In such view of the matter the respondent employee always had his 'lien' in his parent department. The State at this stage cannot be allowed to turn round and say that the respondent employee did not retain lien against his post in the parent department."
14 W.P.(S) No.3933 of 2023
It is evident from paragraph 17 of the aforesaid judgment that the Hon'ble Apex Court has been pleased to observe regarding the settled position that when a person with a 'lien' against the post is appointed substantively to another post, only then he acquires a 'lien' against the latter post. Such observation has been made on the basis of the interpretation of Rule 18(b) of the Rajasthan Service Rules. The word ''lien'' has also been defined interpreting it under parapgraph 19 as per which the terms ''lien'' comes from the Latin term "ligament" meaning "binding". The meaning of 'lien' in service law is different from other meanings in the context of contract, common law, equity, etc. The 'lien' of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed.
(ii) The Hon'ble Apex Court in another judgment rendered in State of Madhya Pradesh & Ors reported in Sandhya Tomar and Anr., (2013) 11 SCC 357, in particular paragraph no. 10, has been pleased to observed which is quoted hereunder as:
"10. "lien" connotes the civil right of a government servant to hold the post "to which he is appointed substantively". The necessary corollary to the aforesaid right is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post. "The word ''lien'' is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law." Whether a person has lien, depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post."15 W.P.(S) No.3933 of 2023
It is evident from the aforesaid proposition that a person can be said to have acquired 'lien' as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post.
Whether a person has 'lien', depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post.
(iii) The Hon'ble Apex Court in Ramlal Khurana (Dead) by Lrs. Vs. State of Punjab & Ors., (1989) 4 SCC 99, has been pleased to hold at paragraphs 7, 8 and 9 which are quoted hereunder as:
"7. We do not think that the contention urged for the appellant as to Rule 3.14 could be accepted. Rule 3.14 provides that a competent authority shall suspend the lien of a government servant when he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. It seems to us that this rule cannot be operated to the prejudice of a government servant who on his own has acquired legal right to an ex cadre post. Indeed, the rule is for the benefit of a government servant who intends to return back to his parent department. That was also the view expressed in T.R. Sharma case. But then, the appellant never wanted to return back to his parent department. He was stoutly opposing repatriation and asserting his right to remain in the ex cadre post. He has thus denied himself of the benefit of that rule.
8. The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is a well-accepted principle of service jurisprudence.
9. In that instant case, the civil court has already ruled that the appellant had a right to continue in his substantive appointment as Excise SubInspector. He secured that declaration when the Excise Department repatriated him to his parent department. After obtaining that decree from a court of competent jurisdiction, he could not turn round and say that he still retained lien against his 16 W.P.(S) No.3933 of 2023 post in the parent department. The lien in his parent department must be held to have been cancelled consequent on the decree of the civil court. Therefore, the Excise Commissioner seems to be the only competent authority to pass the order compulsorily retiring him from service."
(iv) The Hon'ble Apex Court in L.R. Patil vs. Gulbarga University, Gulbarga, 2023 SCC OnLine SC 1110 while dealing with the issue of 'lien' has been pleased to hold that the moment a public servant is being appointed to a permanent post on substantive capacity, the 'lien' of the erstwhile post will stand terminated.
However, the facts of the said case as would appear from paragraph-4 thereof is that applications were invited by the University in the year 1993 to fill the post by way of direct recruitment. The appellant of the said case applied for the said post and was selected. As per the terms of the appointment, the appellant had to serve as a probationer for a period of two years, before he could be confirmed on the said post. On his appointment, respondent-University vide office order dated 08.04.1993 relieved the appellant from the post of Office Superintendent w.e.f. 04.02.1993, and duly recorded that he is being relieved to accept the another appointment as 'Assistant Registrar' in the Gulbarga University. The order further recorded that its contents shall be noted in the service book.
During pendency of the said writ petition, the respondent University vide order dated 03.02.1996, promoted 'Sri. A. Raghavendra' and 'Sri Shankar Rao Kamble' looking to their seniority and posted them as Assistant Registrar, Examination Branch and Assistant Registrar, Administrative Branch respectively. But, on account of the pendency 17 W.P.(S) No.3933 of 2023 of aforesaid writ petition, the appellant continued on probation on the post of Assistant Registrar. The High Court had quashed the appointment of the appellant. The same had been confirmed under the intra-court appellate jurisdiction. The University in consequence thereof, has withdrawn the appointment of the appellant as Assistant Registrar.
Thereafter, the appellant of the said case has gone to give joining to the post of Office Superintendent. His joining was accepted. The appellant had made representation for fixation of his seniority in the cadre of Office Superintendent and further requested for promotion on the vacant post of Assistant Registrar at par with his two juniors, namely, Sri. A. Raghavendra and Sri. Shankar Rao Kamble who were promoted to the post of Assistant Registrar by the respondent University.
The grievance having not been redressed, writ petition was filed being Writ Petition No. 22838 of 2001 which was disposed of on 21.03.2005 with a direction upon the respondent concerned to take decision. The decision was taken and the representation was rejected and, in the meantime, the appellant superannuated on 30.06.2007 from the post of Office Superintendent. The appellant had again filed writ petition being Writ Petition No. 4066 of 2006 challenging the rejection order dated 08.02.2006 and prayed for restoration of his seniority. The matter finally gone before the Hon'ble Apex Court and in the background of the aforesaid fact, the Hon'ble Apex Court has considered while deciding the issue, the judgment rendered by the 18 W.P.(S) No.3933 of 2023 Hon'ble Apex Court in Ramlal Khurana (Dead) by Lrs. Vs. State of Punjab & Ors. (supra); Triveni Shankar Saxena vs. State of U.P. and Ors., 1992 Supp (1) SCC 524 wherein the Hon'ble Apex Court has observed that a person can be said to acquire a 'lien' on a post only when he has been confirmed and made permanent on that post and not earlier. The Hon'ble Apex Court on consideration of the judgment rendered by the Hon'ble Apex Court in State of Rajasthan and Anr. Vs. S.N. Tiwari and Ors. (supra) and State of Madhya Pradesh and Ors. vs. Sandhya Tomar and Anr., (supra) has held as under paragraph-26 which reads as under:
"26. In view of the discussion made herein above, we answer the questions framed above as follows -
(i) Order dated 08.04.1993 passed by respondent-University, relieving the appellant to take up the new appointment as 'Assistant Registrar' is not to be treated as resignation in terms of Rule 252(b) of KCS Rules.
(ii) The appellant's lien on the original/previous post of 'Office Superintendent' shall be maintained and deemed to be continued from the date when he was relieved by respondent-University, i.e., 08.04.1993.
(iii) Considering the facts and circumstances of the case and in order to do complete justice, the appellant will be entitled to all the service benefits including seniority, consequential promotions and pensionary benefits at par with his juniors, though notionally, since he superannuated on 30.06.2007 and has not worked on the promoted post."
It is evident from the aforesaid conclusion as under paragraph-26 thereof that the appellant's 'lien' on the original/previous post of 'Office Superintendent' shall be maintained and deemed to be continued from the date when he was relieved based upon the fact that the appellant was not allowed to continue in service as Assistant Registrar and appointment was withdrawn within the probation period of two years. Hence, he was continued on temporary basis despite the 19 W.P.(S) No.3933 of 2023 completion of two years and in that view of the matter the 'lien' which was earlier been held by the appellant of the said case of the post of Office Superintendent has been directed to be remained there.
35. This Court has considered the argument of the writ petitioner on the basis of the aforesaid proposition and considering the admitted fact that the father of the writ petitioner was not having any lien to the permanent post and hence, there is no question of accrual of a right said to be vested so as to allow the father of the writ petitioner to get the benefit of old pension scheme. It is for the reason that admittedly the father of the writ petitioner had joined in the substantive post after 01.01.2004 the day when NPS has come into force replacing the old pension scheme.
36. The further admitted fact that has been taken by the learned Tribunal at under paragraph 10 thereon that the late father of the writ petitioner while was alive after superannuation there was deduction from his salary which is the sine quo non for grant of benefit under the NPS. It is also admitted fact that there was no objection by late father of the writ petitioner on his behalf during his life time, however, when he has died then his son, who is petitioner, applicant before the tribunal had raised the issue that his father held to be entitled for the benefit under the fold of old pension scheme.
37. Learned tribunal by taking the note of the fact that the concerned employee i.e. the father of the petitioner since has accepted the benefit to be given under NPS by allowing the deduction from his salary to be deposited in the CPF account which is the condition precedent for benefit to be given under the NPS. Hence, it is not available for the petitioner in 20 W.P.(S) No.3933 of 2023 the capacity of the son of the deceased employee who already accepted the NPS to raise the issue by claiming the benefit of old pension scheme to be given in favour of his father.
38. The issue of estoppel, therefore, has been applied by the learned tribunal which has seriously been questioned by the writ petitioner.
39. This Court is of the view that once a benefit has been accepted by the concerned employee and not only acceptance rather it has been acted upon also by allowing deduction from his salary without any demur and objection then once the decision has been accepted based upon the policy decision of the competent authority, it is not available for his legal heirs to raise the issue against the action of the recourse taken by the person who are actually to make objection.
40. Law has been settled in this regard that once a thing has been accepted now it is not available for concern to retract and question the same that too not by the person concerned who was to agitate the issue rather by the legal heirs.
Reference has been made in this regard in the case of State of Punjab v. Krishan Niwas, (1997) 9 SCC 31 "4. The learned counsel for the respondent contends that the offence with which he was sentenced under Section 325 IPC does not involve his moral turpitude and, therefore, the imposition of punishment of reduction of his scale of pay and also denial of back wages, is clearly illegal and that the appellants are not entitled to challenge the order. We find no force in the contention. The respondent having accepted the order of the appellate authority and joined the post on 5-6-1989, it was not open to him to challenge the order subsequently. By his conduct he has accepted the correctness of the order and then acted upon it. Under these circumstances, the civil court would not have gone into the merits and decided the matter against the appellants."
21 W.P.(S) No.3933 of 2023
41. Discussing the fact of the legal issue and coming back to order passed by the learned tribunal is of the view that since the court has been conferred the power of judicial review against the order passed by the learned tribunal under Section 14 of the Administrative Tribunal Act , 1985 and hence as per the judgment laid down as per the constitution bench of the Hon'ble Apex Court in the case L. Chandra Kumar Versus Union of India reported in (1997) 3 SCC 261 wherein this Court has been conferred the power of judicial review under Article 226 of the Constitution of India.
42. The power of Judicial review is only to be exercised by the High Court under Article, 226 there is any error apparent on face of the record or the order passed said to be without jurisdiction or if the order passed in absolute violation of the statutory provision.
43. Reference in this regard is made in the judgment rendered by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 SC
477. Paragraph no.7 of the said judgment is being reproduced as under:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on 22 W.P.(S) No.3933 of 2023 the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held in paragraph no.21 as under:
"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject- matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."
In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under 23 W.P.(S) No.3933 of 2023 Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:
"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
In the case of West Bengal Central School Service Commission & Others Vs. Abdul Halim & Others reported in (2019) 18 SCC 39, their 24 W.P.(S) No.3933 of 2023 Lordships have been laid down pleased to hold at paragraph no. 30 that the power of the judicial review must be exercised by the Court after determining that the impugned is vitiated by an error apparent on the face of the record and not the same has been established by a process of reasoning, Para-30 of the aforesaid judgment reads as under:-
"30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the fact of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the fact of the record, as held by this Court in Satyanarayan Vs. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari."
In the case of T.C. Basappa Vs. T. Nagappa reported in (1955) 1 SCR 250, their Lordship hold that the patent error in a decision can be corrected by writ of certiorari, when it is manifested by the error apparent on the face of the proceedings. The relevant portion of the aforesaid judgment is quoted hereunder:-
10. ........... An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the fact of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. ...........25 W.P.(S) No.3933 of 2023
44. Herein, it is not the case of the writ petitioner of any jurisdictional issue of the violation of the decision said to be taken contrary to the statutory provision rather, ground has been agitated by showing the error apparent on the face of the order.
45. This Court, on the basis of the factual aspect and legal position as referred hereinabove, is of the view that it cannot be said that the order passed by the learned tribunal is having any error apparent on the face of it.
Hence, this Court is of the view that it is not a case where power of judicial review is to be exercised by showing interference with the impugned order.
46. Accordingly, this writ petition is dismissed.
47. Learned counsel for the petitioner at this juncture has submitted by referring the direction passed by the learned tribunal wherein the direction has been passed for disbursement for the amount under the NPS which was deducted from the salary of the late father of the writ petitioner but there is no reference of interest. The said amount to be paid along with the accrued interest.
48. The learned counsel appearing for the respondent has submitted that as per the admissibility the amount under the NPS is to be paid.
49. Considering the said submission, we are of the view, let the admissible amount, if any, be paid to the petitioner.
(Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Rajnish/-A.F.R.