Sheshrao @ Shekhar S/O Pusaramji ... vs State Of Maha. Thr. Principal ...
2021 Latest Caselaw 2396 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                NAGPUR BENCH, NAGPUR



           WRIT PETITION NO.2413 OF 2017



Sheshrao @ Shekhar s/o.
Pusaramji Surjuse, Aged 64 years,
Occ. Retired, r/o. Flat No.102,
Gokul Apartments, 80, Nawab
Lane, Gokulpeth, Nagpur.        ..........   PETITIONER



     // VERSUS //



1.State of Maharashtra,
  Through Principal Secretary,
  Law and Judiciary Department.
  Madam Kama Road, Hutatma
  Rajguru Square, Mantralaya,
  Mumbai-32.

2.State of Maharashtra,
  Through Principal Secretary,
  Food, Civil Supplies and
  Consumer Protection Department,
  Madam Kama Road, Hutatma
  Rajguru Square, Mantralaya,
  Mumbai-32.
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3.State of Maharashtra,
  Through Principal Secretary,
  Finance Department,
  Madam Kama Road, Hutatma
  Rajguru Square, Mantralaya,
  Mumbai-32.

4.(The Lokayukta,
  State of Maharashtra)
  (Deleted vide Court's order
   dt.20.4.2017)              .........         RESPONDENTS


____________________________________________________________
Mr.R.L.Khapre, Senior Advocate assisted by Mr.D.R.Khapre
and Mr.D.M.Surjuse, Counsel for the petitioner.
Mrs.Kalyani Deshpande, A.G.P. for Respondent nos.1 to 3.


                          ********
Date of reserving the Judgment               : 2 nd February,
2021.
Date of pronouncement of the Judgment        : 5 th February,
2021.
                           ********


                   CORAM : DIPANKAR DATTA, CJ. and
                           PUSHPA V. GANEDIWALA, J.



JUDGMENT (Per Dipankar Datta, CJ) :

1. The issue we are tasked to resolve is, whether the

petitioner is entitled to draw pension.

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2. Resolving the aforesaid issue would require noticing

the basic facts giving rise to this writ petition.

3. The petitioner, born on 12th October, 1952, joined the

Maharashtra Judicial Service as a Civil Judge (Junior

Division) on 3rd December, 1990. In his fifth year of judicial

service, the petitioner was appointed as an Assistant Legal

Advisor-cum-Under Secretary to the Government of

Maharashtra, Law and Judiciary Department on 12 th

December, 1994. Having continued on such post for over

seven and a half years, the petitioner had applied for and

was selected for appointment as President of the Consumer

Disputes Redressal Forum (hereafter "the District

Forum"). Consequent to issuance of Government

Resolution dated 13th May, 2002, by which the petitioner

was appointed as President of the District Forum, he had by

his letter dated 5th June, 2002 requested the Principal

Secretary to the Government of Maharashtra, Law and

Judiciary Department to relieve him from service retaining

his lien on the post of Assistant Legal Advisor. By an order

dated 31st July, 2002, the petitioner was relieved from the 4 wp2413.17.odt

post of Assistant Legal Advisor without anything being said

in respect of retention/suspension/termination of lien.

Consequent to such relieving order, the petitioner joined as

President of the District Forum on 1st August, 2002. The

Government Resolution dated 13th May, 2002, inter alia,

stipulated that the petitioner shall be on probation for a

year and upon confirmation, shall continue as such

President for a further period of four years or until he

attains the age of 65 years, whichever is earlier. The

petitioner continued successfully as President of the District

Forum for the first term, which ended on 31 st July, 2007.

This is evident from the fact that he was offered

appointment for a second term, which he accepted without

demur. The appointment order dated 2nd July, 2007

stipulated that the petitioner shall continue on the post of

President of the District Forum for a period of five years or

until he attains 65 years of age, whichever is earlier, and in

furtherance thereof he discharged the duty of President of

the District Forum till 31st October, 2012, i.e., the last day of

the month in which he attained the age of 60 years. If

indeed the petitioner had continued in Judicial Service, he 5 wp2413.17.odt

would have retired on 31st October, 2010, on attaining the

age of superannuation of 58 years. A few months prior

thereto, 21st June, 2010 to be precise, the petitioner

addressed a letter to the Principal Secretary to the

Government of Maharashtra, Law and Judiciary Department.

While informing that he was due to retire on 31 st October,

2010, the petitioner requested for release of retiral benefits

in his favour. However, at no point of time prior to 31 st

October, 2010 did the petitioner express his intention to

revert to the Law and Judiciary Department.

4. Keeping in view the aforesaid factual narrative vis-a-

vis the law applicable thereto, meaning thereby the

Maharashtra Civil Services (General Conditions of Services)

Rules, 1981 (hereafter "the GCS Rules", for short) read

with the Maharashtra Civil Services (Pension) Rules, 1982

(hereafter "the Pension Rules", for short), we need to

decide the entitlement of the petitioner, if any, to pension.

In the process, we would also be guided by the decisions of

the Supreme Court cited by the parties which we consider

are relevant for such purpose.

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5. Before considering the rival contentions, we deem it

proper to place on record that previously orders have been

passed on this writ petition by co-ordinate Benches

expressing anguish as to why the petitioner despite putting

in twelve years of service in the Law and Judiciary

Department of the Government of Maharashtra is not

entitled to pension, when even a temporary employee,

having put in ten years of service, is entitled to pension. We

have found that based on such orders, the Law and

Judiciary Department relented and proposed to the Finance

Department of the Government of Maharashtra to extend

benefits of pension to the petitioner but the Finance

Department stood its ground and declined to extend such

benefits for the reason that the petitioner has not put in

qualifying service of 20 years; hence, he is not entitled to

pension in terms of the Pension Rules.

6. At the outset, we had indicated to Mr. Khapre,

learned Senior Advocate for the petitioner that it is not for

the Court to re-write the law and that the petitioner's claim

for pension would be examined by us without being 7 wp2413.17.odt

influenced by any of the observations contained in the

previous orders. We, thus, allowed Mr. Khapre to advance

arguments on the merits of the petitioner's claim afresh.

7. Appearing in support of the writ petition, Mr.

Khapre submitted that the petitioner had put in nearly

twelve years of service, initially as a Civil Judge (Junior

Division) and thereafter, as an Assistant Legal Advisor and

to such period of service, he was entitled to addition of 8

years in terms of Rule 53 of the Pension Rules (having

joined judicial service at the age of 38 years).

8. The fallacy in the argument was immediately

pointed out to Mr. Khapre by referring to clause (a) of Rule

53 of the Pension Rules. The petitioner having initially

joined as Civil Judge (Junior Division) as a direct recruit from

the Bar, he was entitled to addition of a maximum period of

five years which the Finance Department was willing to add

to twelve years of service under the Law and Judiciary

Department. Sensing that we were against him on such 8 wp2413.17.odt

point, Mr. Khapre rightly did not press it and proceeded to

advance other arguments before us for our consideration.

9. Drawing our attention to the petitioner's letter dated

5th June, 2002, it was contended by Mr. Khapre that the

petitioner had sought for being relieved from the post of

Assistant Legal Advisor upon retaining his lien on such post

and since the relieving order dated 31 st July, 2002, issued in

reference to the petitioner's letter dated 5 th June, 2002, did

not refuse retention of lien, it must be assumed that the

petitioner was relieved by allowing him to retain his lien on

the post of Assistant Legal Advisor. Mr. Khapre continued to

submit that at no point of time prior to 31 st October, 2010,

there was a termination of lien and the petitioner must be

considered to have been in service of the Government till

such date, thereby achieving the period of "qualifying

service" for drawing pension under the Pension Rules. It

was further contended that the petitioner, by his letter

dated 21st June, 2010, i.e., more than four months prior to

his date of retirement on superannuation (31 st October,

2010), sought for pensionary benefits from the Principal 9 wp2413.17.odt

Secretary, which was arbitrarily denied. Our attention was

drawn by Mr. Khapre to the decisions of the Supreme Court

reported in AIR 1976 SC 367 (T. R. Sharma vs. Prithvi Singh

and another) and (2002) 9 SCC 724 (State Bank of India vs.

E.K.Andrew and another) and the decision of this Court

reported in 2002(2) Bom.C.R. 740 (Parshuram Vithoba

Bhandare vs. State of Maharashtra and another), for the

proposition that there being no termination of lien, the

petitioner cannot be deprived of pension by reason of

technicalities to which the Finance Department has taken

recourse. It was finally contended that if indeed the Finance

Department were disinclined to grant pension to the

petitioner, he could have been duly informed prior to his

retirement on superannuation on 31 st October, 2010 so that

he could have made a choice of either reverting to the Law

and Judiciary Department or to continue as President of the

District Forum. Omission to give such a choice was argued

as arbitrary and violative of Article 14 of the Constitution.

Based on the above arguments, Mr. Khapre prayed that the

respondent no.1 be directed to settle the pension papers of 10 wp2413.17.odt

the petitioner and to start release of pension in his favour

as early as possible.

10. Opposing the writ petition, Mrs. K.R. Deshpande,

learned Additional Government Pleader referred to the

affidavit filed on behalf of the Finance Department as well

as the order passed by the Lokayukta on a complaint

lodged by the petitioner. According to her, the petitioner

had put in twelve years of actual service on a substantive

post under the Government of Maharashtra. In view of Rule

53 of the Pension Rules, five years were added to the twelve

years of actual service rendered by the petitioner, which fell

short of qualifying service by three years. Despite the

Lokayukta having opined in the order that legally the

petitioner was not entitled to pension and the Finance

Department ought to view his case sympathetically, every

avenue was explored but, unfortunately, the terms of the

GCS Rules as well as the Pension Rules did not permit the

Finance Department to act in derogation of the same and to

make special provisions for pension for the petitioner to

avail of.

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11. Our attention was drawn by Mrs. Deshpande to the

decision of the Supreme Court reported in (1996) 10 SCC

734 (Dr. S.K. Kacker vs. All India Institute of Medical

Sciences and Others) in support of the proposition that,

consequent upon the appointment as President of the

District Forum, the petitioner's lien on the post of Assistant

Legal Advisor stood terminated and that he had no right to

revert even before the date of his retirement on

superannuation (31st October, 2010). She, however,

hastened to add that the Supreme Court in Dr. S.K. Kacker

(supra) was considering a case which was covered by the

Fundamental Rules, which is pari materia with the GCS

Rules framed by the State of Maharashtra under Article 309

of the Constitution of India.

12. Referring to Rule 30 of the Pension Rules, Mrs.

Deshpande has contended that as on 31 st October, 2010,

the petitioner was neither holding a substantive post under

the Government of Maharashtra nor was his lien on the post

of Assistant Legal Advisor retained/suspended; on the 12 wp2413.17.odt

contrary, the petitioner was holding a permanent post

under the Consumer Affairs Department and, therefore,

entitled to pay and allowances as provided by Rule 3 of the

Maharashtra Consumer Protection Rules, 2000 and hence,

he is precluded in law from claiming that he is entitled to

draw pension in terms of the Pension Rules.

13. Mrs. Deshpande concluded her submission by

submitting that interference on this writ petition ought to be

declined.

14. We have heard learned Advocates for the parties,

perused the pleadings and considered the decisions cited at

the bar with meticulous care. Co-ordinate Benches of this

Court having previously expressed opinion, albeit prima

facie, that there was no sound reason to deprive the

petitioner of pension, we have taken additional care to

render our decision on the issue noted at the beginning of

this judgment.

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15. A Government servant, in terms of Rule 66 of the

Pension Rules, at any time after completing twenty years of

qualifying service may retire from service subject to the

provisions in the other sub-rules. It has not been disputed at

the Bar that without putting in qualifying service of twenty

years, a retiring Government servant cannot ordinarily

claim pension. Admittedly, the petitioner falls short of

qualifying service by three years. Rule 54 of the Pension

Rules, though provides for condonation of deficiency or

addition in service, even such provision would not clothe

the Government with the power to make up for the

deficiency either by condonation or by addition. Viewed

from this perspective, we unhesitatingly hold that the

petitioner has not put in qualifying service for pension and

is also not entitled to pension even if any of the clauses of

Rule 54 were pressed into service.

16. This takes us to the point of lien argued by Mr. Khapre.

In service jurisprudence, "lien" means the right of a public

servant to hold the post substantively on which he has been

appointed. It admits of no doubt that the existence of lien 14 wp2413.17.odt

and incidents thereof are governed by the Service Rules

applicable to a Government servant. Acquisition, retention,

suspension and cessation are different aspects of lien.

17. In terms of the GCS Rules, once appointed on a

substantive post, an incumbent acquires a lien. He

continues to retain the lien until such lien is either

suspended on the occurrence of any of the contingencies in

the Rules or such lien is terminated as provided therein. The

concept of suspension is based on the fundamental

principle that a Government servant cannot hold more than

one substantive post at the same time. Ordinarily, a

Government servant's lien on a post cannot be terminated

if such termination would result in leaving him without a

lien or a suspended lien on a permanent post; however,

such lien will stand terminated on acquisition of a lien on a

permanent post outside the cadre on which the

Government servant is borne.

18. Apart from the above, we have not been shown any

other provision dealing with lien. There is also no concept of 15 wp2413.17.odt

a deemed suspension of lien. If indeed a Government

servant holding a substantive post is inclined to accept an

offer of appointment on a post beyond his cadre, yet,

wishes to have his lien on his substantive post suspended,

there ought to be a written order in this regard. We are not

impressed by the argument of Mr. Khapre that the relieving

order dated 31st July, 2002 having been issued referring to

the letter of the petitioner dated 5 th June, 2002, suspension

of lien must be assumed. We had enquired of Mrs.

Deshpande as to whether appointment on the post of

Assistant Legal Advisor had been made after the petitioner

joined as President of the District Forum. She submitted

that an advertisement was published in 2004 but no

suitable candidate could be found, but ultimately

appointment was made in 2008. Assuming that there has

been a substantive appointment on the post of Assistant

Legal Advisor prior to the petitioner's retirement date (31 st

October, 2010), it is inconceivable that two incumbents

would hold lien in respect of the same post.

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19. In Dr. S.K. Kacker (supra), the appellant was working

as Professor and Head of the ENT Department in the

respondent-AIIMS. Pursuant to an advertisement for

appointment to the post of Director of the AIIMS on regular

basis, the appellant had applied for and was selected by the

Committee for appointment as a Director. He came to be

appointed by the Institute Body with the concurrence of the

Government of India. He assumed the office on 11 th

October, 1990 for a period of five years. His tenure came to

an end on 15th October, 1995. The question that emerged

for consideration before the Supreme Court was, whether

on expiry of five years' tenure as Director, the appellant

could revert to his parent post, i.e., Professor and Head of

the ENT Department. The Court, upon consideration of

clause (d) of FR 14-A, held that on appointment to a

permanent post, be it under the Central Government or the

State Government, outside the cadre on which the

Government servant is borne, his lien on the previous

permanent post stands terminated on his acquiring a lien in

a permanent post. The post of Director being the head of

AIIMS and independent of all the departments, the Director 17 wp2413.17.odt

is enjoined to supervise not only the administrative work of

AIIMS but also its management for and on behalf of the

Institute Body. Therefore, on his substantive appointment to

the permanent post as a Director, the appellant lost his lien

on the post of Professor and Head of the ENT Department.

Resultantly, when the tenure of the appellant had expired

by efflux of time or in case any of the eventualities

mentioned in Regulation 30-A had happened, he could not

revert to the post of Professor and Head of the Department.

20. The facts of the present case are not too dissimilar.

The difference is in respect of the applicable Rules and the

posts on which the petitioner had the occasion to work. We

note that FR 14-A(d) of the Fundamental Rules is pari

materia with Rule 25(2) of the GCS Rules. Rule 23 of the

GCS Rules provides for suspension of a lien. For facility of

appreciation, Rule 23 is quoted below:

"23.Suspension of a lien. - (1) A competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity -

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(a) to a tenure post, or
(b)   provisionally,   to   a   post   on    which    another

Government servant would hold lien had his lien not been suspended under this sub-rule.

(2) A competent authority may, at its option, suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service or in circumstances not covered by sub-rule (1) of this rule is transferred, whether in a substantive or in a officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.

Note- When it is known that a Government servant on transfer to a post outside his cadre is due to retire on superannuation within three years of his transfer, his lien on his cadre post cannot be suspended.

(3) Notwithstanding anything contained in sub-rule (1) or (2) of this rule, a Government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed substantively to another permanent post, his lien on the tenure post must be terminated.

(4) If a Government servant's lien on the post is suspended under sub-rule (1) or (2) of this rule, the 19 wp2413.17.odt

post may be filled substantively and the Government servant appointed to hold it substantively shall acquire a lien on it, provided that the arrangements shall be reserved as soon as the suspended lien revives.

Note 1. - This sub-rule also applies if the post concerned is a post in a selection grade of a cadre.

Note 2.-When a post is filled substantively under this sub-rule, the appointment will be termed a provisional appointment, the Government servant appointed will hold a provisional lien on the post, and that lien will be liable to suspension under sub-rule (1), but not under sub-rule (2) of this rule.

(5) A Government servant's lien which has been suspended under sub-rule (1) of this rule shall revive as soon as he ceases to hold alien on a post of the nature specified in sub-rule (1)(b).

(6) A Government servant's lien which has been suspended under sub-rule (2) of this rule shall revive as soon as he ceases to be on deputation out of India or on foreign service or to hold a post in another cadre, provided that a suspended lien shall not revise because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign 20 wp2413.17.odt

service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in clause (a) or (b), of sub-rule (1).

Instruction.- Under the existing provisions of this rule, it is possible for more than one person to be appointed in a provisional substantive capacity against a single post. The operation of this rule should, however, be restricted so as to permit only one provisional substantive appointment against one post. Accordingly, the lien acquired by a Government servant on his appointment in a provisionally substantive capacity under sub-rule (4) of this rule, should not be suspended if he is deputed out of India or is transferred to a post of the nature specified in sub-rule (2) of this rule. "

[emphasis supplied]

21. The substantive appointment of the petitioner as

President of the District Forum for five years is covered by

sub-rule (3) of Rule 23 and, therefore, there could be no

question of the competent authority suspending the

petitioner's lien on the post of Assistant Legal Advisor. The

circumstance that the post of President of the District

Forum is a tenure post does not make much of a difference.

21 wp2413.17.odt

After all, it is another permanent post beyond the cadre in

which the petitioner was borne and on which the petitioner

was appointed substantively with little or no likelihood of he

reverting to his permanent post of Assistant Legal Advisor

anytime before expiry of the term of five years. The lien of

the petitioner on the post of Assistant Legal Advisor not

having been suspended and on the contrary, there being a

termination of lien by operation of sub-rule (2) of Rule 25 of

the GCS Rules, coupled with non-fulfilment of the

requirement of the first proviso to Rule 30 of the Pension

Rules, leads us to the irresistible conclusion that the

petitioner is not entitled to pension in terms of the Pension

Rules.

22. We may, in this context, also refer to the decision of

the Supreme Court reported in (1989) 4 SCC 99 [Ramlal

Khurana (Dead) by LRS. vs. State of Punjab and Others].

Paragraph 8 of the said decision is relevant and accordingly,

is quoted below :

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"8.The other contention urged for the appellant that he was not confirmed in the Excise Department and unless con0firmed, 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."

[emphasis supplied]

23. In this regard, the conduct of the petitioner cannot

also be overlooked. It has not been disputed at the Bar that,

as an Assistant Legal Advisor, he was receiving lessor pay

than the pay received by him consequent upon his

appointment as President of the District Forum. We cannot

despise the petitioner pursuing a better career option but

the corresponding loss of benefits of pension, if he were to

continue as President of the District Forum till attaining 60

years of age, ought to have been comprehended by him.

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With his eyes open, the petitioner accepted the post of

President of the District Forum for two consecutive terms

with the result that he could serve for two additional years,

which might not have been possible had he continued to

serve the judiciary. In view of the benefits that the

petitioner received as President of the District Forum, he

cannot now claim benefits of pension, which he would have

otherwise been entitled to, if he were part of the Judicial

Service.

24. The decisions relied on by Mr. Khapre have been

perused. Law was declared having regard to the facts

obtaining in the cases before the Courts. Because of the

factual dissimilarities with the case at hand, we are unable

to apply the ratio of such decisions here.

25. In the case of T.R.Sharma (supra), the Court held that

since the Governor had de-confirmed the appellant from the

post of Block Development and Panchayat Officer, the

suspended lien of the appellant on the post of Agricultural

Inspector would stand revived w.e.f. February 26, 1969.

24 wp2413.17.odt

There is no order of de-confirmation in the present case and

therefore, the decision is distinguishable.

26. E.K.Andrew and another (supra) was a case relating to

termination of service of a permanent employee pursuant

to proceedings initiated by the Reserve Bank of India on the

basis of certain charges. We have failed to comprehend

the materiality of the said decision to the facts at hand. It is

not the case of any party that the petitioner had been

removed from service on disciplinary grounds.

27. The decision in the case of Parshuram Vithoba

Bhandare (supra) also does not advance the case of the

petitioner. There, the petitioner was working on daily

wages for years together and thereafter, promoted as a

Supervisor on daily wages, though declared as permanent.

It was held that the case of petitioner was wrongly dealt

with under Rule 57 of the Pension Rules, dealing with

exceptions to Rule 30 thereof, and also that the petitioner's

case was liable to be dealt with under Rule 30. That is not

the case here.

25 wp2413.17.odt

28. For the reasons assigned above, we cannot persuade

ourselves to agree with Mr. Khapre that the petitioner is

entitled to pension under the Pension Rules. The writ

petition is dismissed, without costs.

29. If the petitioner is entitled to any other benefit which

remains unpaid, he shall be at liberty to claim it in

accordance with law. Upon such a claim being received, the

competent authority shall proceed to deal with and decide

the same, also in accordance with law.

              JUDGE                     CHIEF JUSTICE




[ssjaiswal]
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