Bombay High Court
Smt. Nagaveni R vs The Joint Director Of Higher on 10 December, 2013
Bench: V.M. Kanade, M.S. Sonak
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.
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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;
and
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wp 578.05
(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
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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
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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
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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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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