State Of Rajasthan vs Brijendra Swaroop Saiwal Son Of ...
2023 Latest Caselaw 3797 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          D.B. Civil Special Appeal (Writ) No. 987/2022
                                        In
                 S.B. Civil Writ Petition No.1082/2016
1.     State Of Rajasthan, Through Its Principal Secretary, Public
       Health Engineering Department, Rajasthan, Jaipur.
2.     Chief Engineer, Public Health Engineering Department,
       Rajasthan, Jaipur.
                                                                   ----Appellants
                                    Versus
1.     Brijendra Swaroop Saiwal Son Of Late Shri Nawal Kishore,
       D-18, New Lite Colony, Tonk Road, Jaipur. Retired From
       The Post Of Manager, Rajasthan Finance Corporation,
       Jaipur.
2.     Principal    Secretary,       Finance        Department,       Rajasthan,
       Secretariat, Jaipur.
3.     Director, Pension And Pensioners Welfare Department,
       Rajasthan, Jaipur.
4.     Rajasthan Finance Corporation, Through Its Managing
       Director, Jaipur.
                                                                 ----Respondents

For Appellant(s) : Mr. Anil Mehta, Additional Advocate General with Mr. Prawal Mishra Advocate.

For Respondent(s) : Mr. Mahendra Singh Advocate with Ms. Sejal Sharma Advocate.

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Judgment

19/08/2023

Heard.

This appeal is directed against order dated 30.03.2022

passed by the learned Single Judge whereby, the learned Single

Judge has dismissed the writ petition filed by the State in the

(2 of 6) [SAW-987/2022]

matter of challenge to the order dated 13.10.2014 passed by the

Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur

(hereinafter referred to as 'the Tribunal').

Relevant factual matrix of the case quintessential for

determination of the controversy involved in this appeal is that the

respondent No.1 was working as Cost Assistant in the PHED

Department of the State Government.

In order to avail better service, respondent No.1 applied for

appointment to the post of the Assistant Loan Officer in the

Rajasthan Finance Corporation (hereinafter referred to as 'RFC').

Eventually, he was appointed there.

Admittedly, respondent No.1 submitted a resignation from

the State Services vide letter dated 24.01.1978. He requested for

his resignation w.e.f. 17.11.1976. Thereafter, he continued in

service in the office of RFC until he attained the age of

superannuation on 30.11.2001. Not immediately but after many

years, he started making representation in 2013 that the services

rendered by him under the State should be counted for the

purposes of pensionery benefits and the State should undertake

the liability for the period of services rendered by him as the

government servant, claiming benefits of the order passed by a

Division Bench of this Court in the case of State of Rajasthan &

Others Versus B.P. Sharma, D.B. Civil Special Appeal (Writ)

No.687 of 2004, decided on 01.03.2007. As the claim was not

acceded to, the respondent No.1 filed an appeal before the

Tribunal, which was partly allowed vide order dated 13.10.2014.

Aggrieved by the said order, State preferred writ petition, which

(3 of 6) [SAW-987/2022]

was dismissed by the learned Single Judge giving rise to this

appeal.

Learned Additional Advocate General appearing for the State

would argue that the learned Single Judge and the Tribunal both

failed to appreciate that the case of the respondent No.1 was

completely distinguishable from the case of State of Rajasthan

& Others Versus B.P. Sharma (Supra). That was the case of

absorption, whereas, present is a case of resignation. He would

submit that respondent No.1 having submitted his resignation, the

case of the respondent No.1 would fall within mischief of Rule 25

of the Rajasthan Pension Rules, 1996 (hereinafter referred to as

'the Rules of 1996) and not the one which was referred and relied

upon by the Division bench of this Court in the case of State of

Rajasthan & Others Versus B.P. Sharma (Supra).

Further submission is that even if it is assumed that perforce

provision contained in Rule 25(2) of the Rules of 1996, in the case

of permission, resignation may not entail forfeiture, the

respondent No.1 did not claim that he had secured appointment in

another undertaking with due permission of the State. Pleadings in

this regard were vague.

Yet another submission is that unless in terms of provision

contained in Rule 25(2) of the Rules of 1996,

undertaking/information is given, even if, it is assumed that

permission was taken, the consequences of forfeiture would not be

attracted and the respondent No.1 is having waived his right

cannot reclaim the benefit of past services rendered by him.

Learned Additional Advocate General would also submit that,

though, there is no specific period of limitation prescribed,

(4 of 6) [SAW-987/2022]

respondent No.1 slept over his alleged claim for more than a

decade and approached the Tribunal only in the year 2013,

therefore, for this additional reason also, respondent No.1 was not

entitled to any relief.

On the other hand, learned counsel for the respondent No.1

would argue that the orders passed by the Tribunal and the

learned Single Judge are based on the fact that the respondent

No.1 was a government servant and he had taken up employment

in government undertaking and, therefore, in such circumstances,

provisions contained in Rule 9 of the Rules of 1996 would be

applicable. Learned counsel would also submit that in the appeal

filed before the Tribunal, where a specific plea was taken that he

had sought appointment under the RFC through proper channel,

in the absence of any specific denial made by the appellants that

no permission was granted, reliance on provisions contained in

Rule 25 of the Rules of 1996 is misplaced in law and fact both.

We have heard learned counsel for the parties and perused

the record and various documents. We have also perused the

provisions contained in Rule 9 and Rule 25 of the Rules of 1996.

Rule 9 of the Rules of 1996, on its plain reading, reveals

that it is applicable to a case of absorption. Present is not a case

of absorption, but is of resignation. However, Rule 25(2) of the

Rules of 1996 provides for saving past services from forfeiture in

certain contingencies. Provisions contained in Rule 25 of the Rules

of 1996 is reproduced as below:-

"25. Forfeiture of service on resignation

(1) Resignation from a service or a post, entails forfeiture of past service.

(5 of 6) [SAW-987/2022]

(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 admissible 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.

A fair and logical interpretation of the aforesaid rule would be

that resignation from government service would result in forfeiture

of past service which is clear from the plain language of Rule

25(1) of the Rules of 1996. However, the matter does not end

there. Sub-Rule (2) of the Rules of 1996 provides for certain

contingencies in which forfeiture will not follow even in a case of

resignation. It provides that a resignation shall not entail forfeiture

of past services if it has been submitted to take up, with prior

permission, another appointment, whether temporary or

permanent, under the Government where service qualifies.

Therefore, in case where the other appointment is taken up

with prior permission, the forfeiture of service shall not entail.

If we look into the pleadings of the parties, we find that in

the writ petition, the respondent No.1 has pleaded that he took up

the employment and had applied through proper channel. True it

is that detailed pleadings in this regard have not been made by

the appellants. However, while replying to the averments made in

the appeal, nothing stopped the appellants from taking specific

stand that the respondent No.1 never sought permission and

without such permission, he secured employment in the RFC.

(6 of 6) [SAW-987/2022]

The submission of the learned Additional Advocate General

appears to be quite technical. Strict rules of pleadings cannot be

applied in the proceedings before the Tribunal or before this Court.

Nothing prevented the State from taking specific stand that the

respondent No.1 never sought permission before taking up

employment under the RFC, which is State undertaking. Having

not taken any such plea and on the face of specific plea taken by

the respondent No.1 that he had applied for the appointment to

the post under the RFC through proper channel, in our considered

opinion, the same would not lead to a conclusion that respondents

had not sought any permission before taking up appointment.

Therefore, even if, it is held that Rule 9 of the Rules of 1996 will

not come to the aid of respondent No.1, it being not a case of

absorption, Rule 25(2) of the Rules of 1996 saves the services

from being forfeited.

As the claim of the respondent is with respect to right to

pension, which is recurring cause of action, we are not inclined to

deny relief of pension on the ground of delay.

As the conclusion drawn by us is the same as the learned

Single Judge, through for different reasons, appeal is, therefore,

dismissed.

(ASHUTOSH KUMAR),J (MANINDRA MOHAN SHRIVASTAVA),J

Sanjay Kumawat-1

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