wp 578.05
dss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.578 OF 2005
Smt. Nagaveni R. ]
R/o. A-3, Near Wearhouse ]
Road, Mangalore-575003 ] ... Petitioner
Vs.
1. The Joint Director of Higher ]
Education, Mumbai Region ]
Elphinstone Technical College ]
Campus, 3, Mahanagar Palika ]
Marg, Dhobi Talao, Mumbai-41]
2. The Divisional Secretary ]
M.S. Board of Secondary & ]
Higher Secondary Education, ]
Mumbai Division, Vashi ]
3. The State of Maharashtra, ]
The Principal Secretary to the ]
Government, Higher and ]
Technical Education, 4th Floor ]
Mantralaya Annexe, ]
Mumbai-400 032. ] ... Respondents
***
Mr. N. Jayaraman for the Petitioner
Mr.M.D.Naik, AGP for Respondent Nos.1 & 3.
Mr.P.P. Chavan i/b. Little & Co. for Respondent No.2
***
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wp 578.05
CORAM : V. M. KANADE, AND
M. S. SONAK, JJ.
DATE : DECEMBER 10, 2013
JUDGMENT : (PER M.S.SONAK, J.)
1] By this petition, the Petitioner seeks pension and other retiral
benefits by counting her services from 25.2.1975 to 5.11.1984 rendered with the Maharashtra State Board of Secondary and Higher Secondary Education (Board) alongwith her service as a clerk-cum-
stenographer at the PD Lions College of Commerce and Economics, Malad (West), Mumbai (School), an aided Institution with effect from 6.11.1984 to 31.1.2002.
2] There is no serous dispute that the Petitioner is entitled to pension and other retiral benefits on the basis of her service with the School rendered from 1984 to 2002. The only reason this has remained to be paid till date is because the Petitioner refused to sign the pension papers by excluding period of service with Board from 25.2.1975 and 5.11.1984 apprehending that the signing of such papers might be construed as waiver of her larger claim.
2 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 3] The only question which remains is whether the Petitioner's service from 1975 to 1984 with Board is to be counted for the purposes of determination of her pension and other retiral benefits.
4] Mr. Jayaraman, learned counsel appearing for the Petitioner primarily made the following two submissions:
(a) In terms of Rule 46(2) of the Maharashtra Civil Services (Pension) Rules, 1982, a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment.
Relying upon resignation letter dated 6.8.1984 and further letter dated 9.10.1984, it was submitted that the Petitioner's appointment as a clerk with the school consequent upon her resignation from the board services or 'with proper permission' and therefore the benefit of Rule 46(2) ought to have been extended to the Petitioner;
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(b) The denial of the benefit to the Petitioner was on the basis of clear misconception that the Petitioner's services with the Board from 1975 to 1984 were 'non pensionable' at the time of her resignation with effect from 5.11.1984. In fact, vide G.R. dated 1.11.1985, the State had made pension scheme applicable to the Board initially prospectively, but later on from 10.2.1987 retrospectively, i.e., with effect from 1.8.1983. Since the Petitioner was very much in service on 1.8.1983, her services with the Board at the time of her resignation was 'pensionable service'. Therefore, the benefit of such pensionable service has been wrongfully denied to the Petitioner.
5] Mr. Jayaraman placed reliance upon number of rulings of the Supreme Court, which hold that the pension is neither a bounty, nor a matter of grace depending upon sweet will of neither the employer, nor an ex-gratia payment. It is a payment for the past services rendered. It 4 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 is a social welfare measure rendering socio economic justice to those who in the hayday of their lives ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.
Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. A person serving for a long period earns his legitimate expectation. It is not something which he seeks as a begging bowl.1 6] Mr. Jayraman also placed reliance upon a decision of the Supreme Court in the case of T.S. Thiruvengadam vs. Union of India2, wherein it has been held that :
"...... Rule 37, thus, provides that a Government servant who has been permitted to be absorbed in service in a Central Government public undertaking in 1 D.S.Nakara vs. Union of India - (1983) 1 SCC 305, State of Kerala vs. M. Padmanabhan Nair -
1985(1) SCC 429, Deokinandan Prasad vs. State of Bihar & ors - 1971(2) SCC 330 and Dhan Raj vs. State of J & K - (1998) 4 SCC 30.
2 (1993) 2 SCC 174 5 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits in accordance with the orders of the Government applicable to him. It is not disputed that the appellant was permitted to be absorbed in the Central Government public undertaking in public interest. The appellant, as such, shall be deemed to have retired from Government service from the date of his absorption and is eligible to receive the retirement benefits. It is not doubt correct that the retirement benefits envisaged under Rule 37 are to be determined in accordance with the Government orders but the plain language of the Rule does not permit any classification while granting the retirement benefits.
When the rule especially provides that all the persons who fulfill the preconditions prescribed therein shall be deemed to have retired from Government service from the date of absorption and shall be eligible to receive retirement benefits then the Government while granting benefits cannot deny the same to some of them on the basis of arbitrary classification. All those persons who fulfill the conditions under Rule 37 are a class by themselves and no discrimination can be permitted within the said class. The Government action in restricting the benefits under the revised Memorandum dated June 16, 1967, only to those who are absorbed after that date goes contrary to the Rule and cannot be sustained."
7] There is and there can be no dispute whatsoever with the propositions enunciated by the Supreme Court that pension is neither a bounty nor a matter of grace depending upon whim and caprice of the 6 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 employer. In the present case however the question is whether the Petitioner is entitled to insist that her services with the Board from 1975 to 1984 be counted for the services of pension and other retiral benefits. This is, in our opinion, not a case where pension has been denied to the Petitioner on basis of 'whim' or 'caprice' of the Respondents.
8] The first submission is based upon Rule 46 of the Maharashtra Civil Services (Pension) Rules, 1982 and the same reads thus:
Rule 46. Forfeiture of service on resignation:
(1) Resignation from a service or a post entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The appointing authority may consider the 7 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 request of a person who had earlier resigned his post under Government, to take him back in service in the public interest on the following conditions, namely:-
(a) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(b) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(c) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(d) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
(5) Request for taking him back in service shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
8 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 (6) When an order is passed by the appointing authority allowing a person to be taken him back in service and to resume duty the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.
9] There is no clarity whether the Pension Rules, 1982 at all apply to the case of the Petitioner. Such Rules have been made by the Governor of Maharashtra in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. The Petitioner was earlier an employee of the Board and thereafter of an aided school.
Service conditions of employees of a Board or an aided school are not per se determined by Rules framed under proviso to Article 309. In any case, Rule 2 specifies the categories of employees to whom such Rules have been made applicable. The Petitioner does not appear to answer the description of any of the said categories. However, as no submissions were advanced by either parties on the issue of applicability or otherwise of the said Rules, we proceed on the basis that Rules were indeed applicable to the Petitioner. Even then in our opinion, the Petitioner does not comply with the conditions prescribed 9 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 under Rule 46(2) for the purposes of avoiding forfeiture of service with the Board for the purposes of pension and other retiral benefits. In fact, in this case, there has been no forfeiture as such, because the Petitioner has been paid and has received without any demur her terminal benefits from the Board consequent upon the acceptance of her resignation with effect from 5.11.1984.
10] Rule 46(2) provides that resignation shall not entail forfeiture of past service if it has been submitted to take up, 'with proper permission', another appointment. Except for a bald assertion that such permission was obtained, there is no material produced on record by the Petitioner evidencing any such permission.
11] Mr. Jayaraman, however, placed reliance upon letter of resignation dated 6.8.1984 and further letter dated 9.10.1984 to urge that the same be construed as 'proper permission'. We are however, unable to agree. In the first place, the two letters came to be address by the Petitioner to the Board. There is no corresponding response from 10 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 the Board, at least none is pointed out to us. Secondly, letter dated 6.8.1984 merely states that "due to unavoidable circumstance" the Petitioner is constrained to resign with effect from 6.11.1984. There is no reference in this letter to taking up employment elsewhere much less seeking any permission in that regard. The second letter dated 9.10.1984 intimates that the Petitioner "With effect from the date of cessation of my employment in this office, i.e., 6.11.1984, I have already taken up another employment in another establishment on the strength of your acceptance of my resignation".The letter proceeds to seek a discharge certificate on or before 6.11.1984 indicating last drawn salary and other particulars. The letter also request for relief even prior to 6.11.1984 if possible. We are unable to read anything in the two letters which could be construed as "proper permission" for taking up another employment. Rule 46(2) is, therefore, not attracted to the facts and circumstances of the present case and on basis thereof it is impermissible for the Petitioner to insist that her services with Board be counted for the purposes of determination of pension and other retiral benefits.
11 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 12] In order to appreciate the second submission of the Petitioner, reference is required to be made to G.R. dated 15.11.1985 by which pension scheme was made applicable to the employees of the Board.
G.R. provides that the Government has sanctioned scheme "on the basis that the Board will implement this scheme on their own finances and for will not seek financial help from Government". Further the G.R. provides that while applying the scheme the Board has to observe the conditions stated therein, which are broadly as follows:
(I) The Board shall itself prepare pension papers, but get the same scrutinized through the office of Chief Auditor, Local Funds Account, State of Maharashtra by payment of prescribed fees. Pension amount shall have to be paid by Money Order or Demand Draft (II) Age of retirement for employees in service made continued to be 60 years. However, for employee who joins the Board after the date of G.R., the same will be 58 years.
(III) The Pension Scheme will be made applicable from 12 / 21 ::: Downloaded on - 29/03/2014 18:43:39 ::: wp 578.05 1.11.1985.
(IV) Option should be given to the Board's employees to choose between Pension scheme and Contributory Provident Fund and period for that purpose will be six months from the date of Government Order.
(V) The contribution of the Board's employees who accept Pension Scheme should be deposited in the General Provident Fund of the Board.
(VI) The rate of contribution should be according to the Government rates instead of 12% rate fixed by the Board.
The aforesaid Government Resolution dated 15.11.1985 was supplemented by yet another Government Resolution dated 10.2.1987, which in terms provided that the pension scheme for the employees of the Board will be made applicable from 1.8.1983 instead of 1.11.1985.
13] Mr. Jayaraman, laying emphasis upon subsequent G.R. dated 10.2.1987, strenuously urged that since the pension scheme was made applicable to the employees of the Board from 1.8.1983, on which 13 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 date, admittedly, the Petitioner was in service with Board, the Petitioner's service from 1975 to 1984 with the Board is liable to be regarded as 'pensionable'. Refusal to count the Petitioner's services with the Board from 1975 to 1984, on the ground that such service was 'non-pensionable' was a clear error apparent on the face of record.
In this regard as observed earlier, Mr. Jayaram placed strong reliance upon judgment of the Supreme Court in the case of T.S.
Thiruvengadam (supra).
14] In the present case, there is no dispute that on 6.11.1984, i.e., the date on which the Petitioner ceased to be an employee of the Board, there was no pension scheme applicable to the employees of the Board. The employees were presumably governed by a Provident Fund scheme. The Petitioner has tacitly admitted receipt of benefits under the Provident Funds scheme and even offered to refund/restore such benefit, in case the pension scheme is made applicable to her.
The affidavit in reply on behalf of the Board states that upon acceptance of the Petitioner's resignation she was paid Provident Fund 14 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 and all other terminal benefits as due. The Petitioner has also not denied this position. Thus it is clear that as on 6.11.1984, there was a complete cessation of 'employer-employee relationship' between the Petitioner and the Board.
15] Even if we were to consider the Petitioner's submission based upon the G.R. dated 15.11.1985 read with G.R. dated 10.2.1987, it is to be noted that the pension scheme made applicable to employees of the Board was subject to fulfillment of certain conditions. The first condition was that the very sanction of the scheme was on the basis that the Board will implement the same from out of its own finances without seeking any financial help from the Government. In the present case, the Petitioner seeks pension and retiral benefits from the school, which is a Government aided school. Secondly, the G.R. dated 15.11.1985 offered an option to the Board's employees to choose between the pension scheme and the contributory Provident Fund scheme within a period of six months from the date of G.R., i.e., 15.11.1985. Admittedly, the Petitioner has failed to exercise any such 15 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 option within the period of six months as stipulated. In case, the Petitioner were to have opted for the pension scheme, then she was required to deposit the benefit of the Provident Fund scheme, which she had already availed into the General Provident Fund of the Board.
16] Mr. Jayaraman, however contends that since the Petitioner was not an employee of the Board as on the date of the issuance of G.R.
dated 15.11.1985, there was no question of the Petitioner exercising any such option. Besides, G.R. dated 15.11.1985 made applicable scheme to the employees of the Board only with effect from 1.11.1985 by which date, the Petitioner had ceased to be in the employment of the Board. It is only by virtue of G.R. dated 10.2.1987, when the pension scheme was made applicable to the employees of the Board with effect from 1.8.1983, that pension scheme became applicable to the Petitioner. Therefore, the Petitioner cannot be faulted for not having opted for the pension scheme within six months from the date of G.R. dated 15.11.1985.
16 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 17] We are unable to agree with the contention of Mr. Jayaraman.
The Petitioner cannot on one hand claim benefit of G.Rs. dated 15.11.1985 and 10.2.1987 and on the other hand seek exemption from compliances of the terms prescribed by the very same Government Resolutions. Even if some latitude is extended and the contention of Mr. Jayaraman is accepted, nothing prevented the Petitioner from exercising option within six months from the date of issuance of G.R.
dated 10.2.1987 and in terms thereof refund the benefits availed by her under the Provident Fund scheme. Having failed to do this, the Petitioner cannot on the basis of G.R. dated 15.11.1985 read with G.R.
dated 10.2.1987 urge that her services with Board from 1975 to 1984 be counted for the purposes of pension and other retiral benefits.
18] The two G.Rs. dated 15.11.1985 and 10.2.1987 at the highest make the pension scheme applicable to the employees of the Board with effect from 1.8.1983. There is nothing in the two Government Resolutions from which it could be deduced that the services rendered by an employee with the Board prior to his/her resignation ought to be 17 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 counted for purposes of pension and retiral benefits by the State or an institution aided by the State. The position in case of S.
Thiruvengadam (supra) was by no means comparable. In the said case the Appellant was permitted to be absorbed in a Central Government Public undertaking in public interest and Rule 37 of the Central Civil Services (Pension) Rules, 1972 which came to be interpreted by the Supreme Court provided that a Government servant who has been permitted to be absorbed in services in a Central Government public undertaking in public interest, be deemed to have retired from the service from the date of such absorption and shall be eligible to receive retirement benefits in accordance with the orders of the Government applicable to him. In the present case, the Petitioner has resigned from her services with Board. There was no issue of her absorption in public interest or otherwise either by the State or any State aided institution. The judgment of the Supreme Court in the case of T.S. Thiruvengadam (supra) is therefore clearly distinguishable and has no application to the facts and circumstances of the present case.
18 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 19] In the circumstances, we see no merit in the contentions raised on behalf of the Petitioner that her services with the Board from 1975 to 1984 need to be counted for the purposes of pension and other retiral benefits payable to her by Respondent Nos.1 and 3.
20] There is however, no justification for denial of pension and other retiral benefits to the Petitioner by counting her service with the school from 1984 to 2002, which is admittedly pensionable service.
21] Mr. M.D. Naik, AGP appearing for Respondent Nos.1 and 3 submitted that at no stage the State was averse to payment of pension to the Petitioner on the basis of her service with the school from 1984 to 2002. It was the Petitioner who refused to sign the pension papers and therefore her case for payment of pension and retiral benefits could not be processed. Though this submission is right, we are of the opinion that nothing really prevented the State from disbursing pension and retiral benefits to the Petitioner on the basis of the undisputed position. Further the amount payable to the Petitioner by 19 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 way of pension and retiral benefits remained with the State for all these years. Taking into consideration the totality of circumstances, we are of the view that Respondent Nos.1 and 3 should pay interest at the rate of 9% per annum upon arrears of pension and retiral benefits payable to the Petitioner for the services rendered by her with the school for the period between 1984 and 2002.
22] Accordingly, we issue the following directions.
(i) Respondent Nos.1 and 3 are directed to pay pension and other retiral benefits to the Petitioner in respect of her service with the school from 6.11.1984 to 31.1.2002 alongwith arrears and interest thereon at the rate of 9% per annum;
(ii) The Petitioner may sign the pension papers and submit the same with the Principal of P.D. Lions College of Commerce and Economics, Sundar Nagar, S.V. Road, Malad (W), Mumbai (School). The Principal of the School shall thereafter forward the said papers within a period of 20 / 21 ::: Downloaded on - 29/03/2014 18:43:40 ::: wp 578.05 two weeks to Respondent No.1 and Respondent Nos.1 and 3 shall process the said papers expeditiously and in any case not later than within four weeks from the date of receipt of such pension papers.
23] Rule is made partly absolute to the aforesaid extent. There shall however be no order as to costs.
[M. S. SONAK, J.]
ig [V. M. KANADE, J.]
Dinesh
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