Dr. Ss Tak vs State Of Rajasthan And Ors. ...
2023 Latest Caselaw 2441 Raj

[2023/RJJD/007410]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12910/2016

Dr S.S. Tak S/o Shri Tikam Singh Tak, 75-76, Adarsh Nagar, Road No. 3, Opp. ICICI Bank, Lal Sagar, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan Through The Chief Secretary, Secretariat Government Of Rajasthan, Jaipur Raj.

2. The Principle Secretary, D.O.P Secretariat, Government Of Rajasthan, Jaipur Raj.

3. The Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan

----Respondents

For Petitioner(s) : Dr. S.S. Tak, petitioner in person For Respondent(s) : Mr. A.K.Gaur, AAG Mr. Shreedhar Purohit

JUSTICE DINESH MEHTA

Order

Reportable 27/03/2023

I.A.No.01/2023:-

Mr. Tak, the petitioner present in person submitted that

having attained 80 years of age, he has already reached twilight

of his life and hence, he would like to see that the issue flagged by

him is brought to its logical end. While submitting that the

controversy involved in the writ petition lies in a very narrow

compass, he prayed that the matter be heard at an early date so

that not only he, even other Members who have served the

Rajasthan Public Service Commission are benefited, in case this

Court holds in his favour.

[2023/RJJD/007410] (2 of 10) [CW-12910/2016]

Considering the age of the petitioner and the controversy

involved in the case, this Court deems it appropriate to give some

priority to the matter.

The application for early listing is, therefore, allowed.

The matter is taken up for consideration today itself.

S.B. Civil Writ Petition No. 12910/2016:-

1. With the consent of all the parties, the matter has been

heard finally.

2. The petitioner having served Jai Narayan Vyas University as

a Professor was appointed as a Member of the Rajasthan Public

Service Commission (hereinafter referred to as 'RPSC').

3. The petitioner having joined as a Member on 10.11.1999

continued for six years till his engagement came to an end on

09.11.2005.

4. Service conditions, including pension payable to Chairman

and Member are governed by Rajasthan Public Service

Commission Regulations, 1974 (hereinafter referred to as

'Regulations of 1974').

5. It is to be noted that by way of notification dated

21.07.2015, the Regulations have been amended and retroactive

affect has been given to the newly inserted/substituted provisions

from 01.09.2006.

6. The petitioner feels aggrieved of the fact that in spite of the

amendment in the Regulations of 1974, the State is paying him a

paltry amount of Rs.500/- per month as pension, whereas as per

amended regulations, he is entitled for Rs.15,000/- per annum for

each year of service.

[2023/RJJD/007410] (3 of 10) [CW-12910/2016]

7. The petitioner has tried to persuade the respondents and

even sent a notice for demand of justice, but no heed has been

paid to his request.

8. The petitioner argued that the amendments which have been

brought in the Regulations apply with full force to his case and

therefore, he is entitled for pension of Rs. 90,000/- per annum

calculated at the rate of Rs.15,000/- for each year out of six years

he has remained in the Commission, as against the meagre sum

of Rs.6,000/- per annum which he is currently getting.

9. Mr. Gaur, learned Additional Advocate General argued that

the Regulations of 1974 have been amended with effect from

01.09.2006 and since petitioner's tenure as Member of the

Commission was over on 09.11.2005, i.e. prior to the coming into

force of the amendment (on 21.07.2015), he is not entitled for the

increased pension. According to him, the petitioner is rightly

getting pension at the rate of Rs. 6,000/- per annum (Rs.500/-

per month) according to the Regulations which existed when he

retired.

10. He read Clause No.1(2) of the notification, and highlighted

that amended provisions are applicable only with effect from

01.09.2006 to buttress his argument that no benefit can be

claimed by the petitioner on the basis of the amendment which

has been brought in clause 9 of the Regulations of 1974.

11. Mr. Purohit, learned counsel appearing for the respondent -

Commission also opposed petitioner's prayer.

12. Heard.

[2023/RJJD/007410] (4 of 10) [CW-12910/2016]

13. Provisions relevant for the present purposes are clause 1, 2

and 9 of the Regulations of 1974 as enacted on 11.05.1974 (or

unamended clauses) which read thus:-

"(1) Short title, commencement and application -

(1) The Regulations may be called(sic) the Rajasthan Public Service Commission (Conditions Of Service) Regulations, 1974.

(2) They shall come into force on the date of their publication in Official Gazette (published on 6-6-74).

(9) Pension payable to Members who were not in the Service of the Central or a State Government, etc. (1) Subject to the provisions of these regulations, a Member, who on the date of his appointment, was not in the service of the Central or a State Government, a local body or any other body wholly or substantially owned or controlled by Government, shall on his ceasing to hold office as Member, be paid a pension:

Provided that no such pension shall be payable to a Member-

(a) unless he has completed not less than three years of service as Member; or

(b) if he has been removed from office as Member;

(2) Pension under these regulations shall be payable to a Member for life;

Provided that no such pension shall be payable during any period for which such member may, after his retirement hold office as Member of the Union Public Service Commission or Member of a Public Service Commission of another State.

(3) Pension under this regulation shall be paid at the following rates, namely:-

(i) In the case of the Chairman, Rupees * Six hundred fifty per month

[2023/RJJD/007410] (5 of 10) [CW-12910/2016]

(ii) In the case of a Member, Rupees ** Five hundred per month if he has completed six years of service."

14. The regulations were amended by way of notification dated

21.07.2015 and given retrospective effect by virtue of clause 1(2).

Relevant extract of the Amendment Regulations, 2015 read thus:-

"(1) Short title and commencement - (1) These Regulations may be called the Rajasthan Public Service Commission (Conditions of Service) (Amendment) Regulations, 2015.

(2) They shall be deemed to have come into force with effect from 01.09.2006.

(2) Deletion of Regulation 8 - The existing Regulation 8 of the Rajasthan Public Service Commission (Conditions of Service) Regulations, 1974, hereinafter referred to as the said Regulations, shall be deleted.

(5) Substitution of Regulation 9- The existing Regulation 9 of the said Regulations shall be substituted by the following, namely:-

(9) Pension payable to members - Pension under these regulation shall be paid at the following rates, namely:-

(i) in the case of the Chairman, Rupees Sixteen thousand per annum for each completed year of service in the Commission.

(ii) in the case of a Member, Rupees Fifteen thousand per annum for each completed year of service in the Commission:

Provided that no such pension shall be payable to Chairman/Member of the Commission,-

(a) unless he has completed minimum three years of service as Chairman/Member; or

(b) if he has been removed from office as Chairman/Member.

[2023/RJJD/007410] (6 of 10) [CW-12910/2016]

... ... ...

... ... ...

Provided also that no arrear shall be payable for the period from 01.09.2006 to 31.12.2006. Cash payment shall be payable from 01.01.2007."

15. According to this Court, the stand of the respondent - State

that since the petitioner's tenure as Member of the Rajasthan

Public Service Commission had ended on 09.11.2005, the

amendments brought into force with effect from 01.09.2006, are

not applicable to him, is absolutely untenable. The reasons are set

out here infra.

16. It is true that para No. 1(2) of the notification dated

21.07.2015 renders the amendments retroactive (from

01.09.2006), but one cannot lose sight of the fact that clause 9 of

the Regulations dealing with pension payable to Members and

Chairman of the Commission has been substituted and an entirely

new mechanism for calculation of pension has been provided. The

same is clear from a simple reading of para 5 of Amendment

Regulation, 2015 which reads as:

"(5) Substitution of Regulation 9- The existing Regulation 9 of the said Regulations shall be substituted by the following, namely:-"

17. The effect of para 5 of the Notification is that clause 9 of the

Regulations of 1974 has been deleted with effect from 01.09.2006

and new provisions given thereunder have been inserted. Hence, if

rights of a Member/Chairman as on 01.09.2006 are to be

determined, they are required to be reckoned as per the provision

[2023/RJJD/007410] (7 of 10) [CW-12910/2016]

existing in the Regulations and not in terms of the earlier

provisions which have ceased to exist.

18. As a consequence of the amendment introduced by

notification dated 21.07.2015, the earlier provisions of pension

which provided for Rs.500/- per month stand deleted. Hence, the

State cannot continue paying Rs.500/- per month or Rs.6,000/-

per annum. If the notification dated 21.07.2015 is given a

harmonious construction and purposive interpretation, the net

result would be that the amendments which have been brought

into effect by notification dated 21.07.2015 shall be applicable

with effect from 01.09.2006.

19. The fact that a Member or the Chairman has retired or has

completed his tenure before 01.09.2006 is hardly of any

relevance.

20. Aforesaid view of this Court is based on close and conjoint

reading of the Regulations of 1974 after giving effect to the

Amendment Regulations of 2015 or the Provision which are

prevailing after 21.07.2015.

21. When it comes to the entitlement of the person having

served as a Member of the Rajasthan Public Service Commission,

the State's view in a given case may be tenable that the person

having worked as Member/Chairman of the Commission prior to

date of promulgation of Regulations of 1974 shall be entitled for

pension as per the date given in the Regulations of 1974. But

since the petitioner's eligibility/entitlement to get the pension has

already been acknowledged and accepted, his rights cannot be

curtailed by reading Clause (2) of para No.1 of the notification

dated 21.07.2015 in the manner attempted to.

[2023/RJJD/007410] (8 of 10) [CW-12910/2016]

22. Aforesaid view of this Court is fortified by judgment of

Hon'ble the Supreme Court in the case of Gottumukkala

Venkata Krishamraju Vs. Union Of India & Ors., reported in

(2019) 17 SCC 590. The Court while dealing with the meaning of

word "substitution" held thus:-

"18. Ordinarily wherever the word "substitute" or "substitution" is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the legislature may construe the word "substitution" as an "amendment" having a prospective effect. Therefore, we do not think that it is a universal rule that the word "substitution" necessarily or always connotes two several steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that the legislature intended otherwise. Insofar as present case is concerned, as discussed hereinafter, the legislative intent was also to give effect to the amended provisions even in respect of those incumbents who were in service as on 1-9-2016.

19. The effect, thus, would be to replace Section 6 as amended with the intention as if this is the only provision which exist from the date of introduction and the earlier provision was not

[2023/RJJD/007410] (9 of 10) [CW-12910/2016]

there at all. The effect of this would be that all those incumbents who are holding the post of Presiding Officer on 1-9-2016 would be governed by this provision."

23. The provision relating to pension which presently exists in

the eye of law is the one, that has been substituted with effect

from 01.09.2006. Earlier provisions have neither been saved nor

has any stipulation been made about the persons whose tenure

has ended before 01.09.2006. In absence of any provision

restricting the applicability of amendment of 2015 to the persons

retiring after 21.07.2015 (or 01.09.2006) it cannot be said that

the same would not apply to the members who had served prior to

01.09.2006.

24. Neither the existing nor did the provisions existing prior to

the amendment of 2015 make the pension dependent upon the

fortuitous event of date of retirement. It is settled proposition of

law that the provisions are required to be read as they exist. The

extant provision relating to pension payable to the Member of the

Commission makes no reference of the date of retirement. Hence,

the State's stand of infusing the 'date of retirement' in the

provision is absolutely illegal.

25. The argument of Mr. Gaur that as the petitioner had retired

prior to coming into force of the Amendment Regulations, 2015,

the same are not applicable to his case, has no substance. If that

be so, a Member demeting office on 30.06.2006 will get pension of

Rs. 6,000/- per annum whereas another member retiring just a

day after would get Rs.90,000/- per annum. Such an

interpretation would lead to anomoly and generate iniquitous

results for two similarly situated members. The State's stand that

[2023/RJJD/007410] (10 of 10) [CW-12910/2016]

petitioner having worked as a Member of the Commission till

09.11.2005 is not entitled for enhanced/revised pension as per

prevailing Clause 9 of the Regulations of 1974 cannot be

countenanced.

26. The writ petition is, therefore, allowed.

27. It is hereby held and declared that petitioner, a Member who

had served the Commission and is getting pension in terms of the

Regulations of 1974 shall be entitled for revised pension as per

the existing Regulation No.9 post issuance of notification dated

21.07.2015. Such revision shall be effective from 01.09.2006 the

date from which the amended Regulations, 2015 have been given

effect to. The cash payment shall, however, be payable from

01.01.2007 as per the last proviso.

28. The respondents are directed to pay pension and the arrears

of pension to the petitioner as per prevailing provision of

Regulation No.9 of the Regulations of 1974.

29. In other words, the respondents shall pay pension of Rs.

90,000/- per annum to the petitioner.

30. The arrears of pension payable to the petitioner be calculated

within a period of two months from today under intimation to the

petitioner. The arrears shall be paid to the petitioner on or before

30.06.2023.

31. The petitioner shall be free to take up his remedies, if he

feels dissatisfied with the calculation made by the State.

32. The stay application also stands disposed of accordingly.

(DINESH MEHTA),J 34-akansha/-

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