The State Of Odisha vs Manju Naik

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9204 OF 2019 (Arising out of SLP(C) No.16283 of 2017

STATE OF ODISHA & ORS. APPELLANT(S)

VERSUS

MANJU NAIK RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

Leave granted.

2. This appeal arises out of the judgment and order dated

29.11.2016 in W.P. (C)No. 14413 of 2016 whereunder the High Signature Not Verified

Court of Orissa has dismissed the appellants’ challenge to Digitally signed by MAHABIR SINGH Date: 2019.12.04 13:20:42 IST Reason: the order dated 3.8.2015 of the Odisha Administrative

Page 1 of 17 Tribunal (hereinafter referred to as “the Tribunal”) under

which the authorities were directed to consider sanction of

invalid pension in favour of late Sagar Naik (husband of the

respondent) and thereafter settle family pension in favour

of the applicant, under the provisions of the Orissa Civil

Services (Pension) Rules- 1992 (hereafter referred to as

“the Pension Rules”).

3. The respondent filed the OA No. 18(B)/2010 before the

Tribunal praying for fixation of pay of late Sagar Naik and

for disbursal of his accrued financial benefits with effect

from 1.1.1996 until he was retired on 6.7.1996 on being

mentally incapacitated. The applicant also prayed for

sanction of family pension from the date of death of her

husband i.e. 24.7.1996.

4. The applicant projected before the Tribunal that her

husband on being found incapacitated was made to retire from

service on 6.7.1996 and he died soon thereafter on 24.7.1996

and therefore, the widow is entitled to family pension. She

also tried to make out a case for grant of invalid pension

in favour of her late husband.

Page 2 of 17

5. Opposing the prayers, the Government Advocate on behalf

of the State contended before the Tribunal that the

applicant’s husband had not rendered the qualifying period

of service so as to make him eligible for pension. Opposing

the claim for invalid pension for the deceased husband, the

appellants contended that Rule 39 of the Pension Rules

governing invalid pension has to be read together with Rule

47 which specifies the qualifying service of ten years for

grant of pension and accordingly it was argued that the

applicant is disentitled to any relief from the Tribunal.

6. Notwithstanding the State’s above contention, the

Tribunal concluded that the applicant’s husband is entitled

to invalid pension under Rule 39 of the Pension Rules and

accordingly, the authorities were directed to sanction the

invalid pension for the applicant’s husband and after his

death, to settle the family pension for the applicant, after

regularizing the services of the deceased employee.

7. The above decision was challenged by the appellants

through W.P.(C) No. 14413/2016 where the State projected

that Rule 39 has to be read jointly with Rule 47 of the

Pension Rules and if Rules are applied as it should be,

conjointly, the deceased government employee is ineligible

Page 3 of 17 for invalid pension. However, without adverting to the

specific contention raised by the appellants, the High Court

observed that a reasoned order was passed by the Tribunal

declaring entitlement for the invalid pension and

accordingly the Tribunal’s impugned order was left

undisturbed and the writ petition came to be dismissed.

8. Representing the State of Odisha and other appellants,

Ms. Anindita Pujari, learned counsel submits that the

deceased government employee was unauthorizedly absent from

service from 1.2.1995 to 23.7.1995 and was under suspension

from 24.7.1995 to 6.7.1996 and this period cannot be counted

for determining the qualifying service. Thus, in his

credit, the deceased employee had net qualifying service of

4 years 6 months and 29 days until he was superannuated on

6.7.1996. The learned counsel then refers to the

provisions of Rule 47(2)(b) and 47(5)(i) to argue that

without completing the qualifying service of ten years, the

deceased employee is ineligible for pension. Due to such

non-entitlement, the widow was granted the alternate benefit

i.e., the service gratuity amount by computing the

entitlement under Rule 47(5)(i)of the Pension Rules.

Page 4 of 17

9. On account of the short duration of service rendered by

the deceased employee, the State’s counsel then argues that

the respondent’s husband cannot be granted invalid pension

under Rule 39 as the provision has to be conjointly read

with Rule 47 and Rule 56 of the Pension Rules which specify

the qualifying service of ten years and also the

consequences for those who do not satisfy the eligibility

criterion for qualifying service.

10. Per-contra, Mr. Kedar Nath Tripathi, learned counsel

for the respondent/applicant, would however argue that the

government employee was allowed to retire from service on

6.7.1996 on the ground of mental incapacity and since

invalid pension is envisaged under Rule 39 of the Pension

Rules for such prematurely retiring employees suffering

permanent incapacity, the Tribunal and the High Court have

rightly ordered for grant of invalid pension for the

respondent’s husband.

11. The learned counsel then submits that since the

government servant died within few days of retirement,

firstly he must be paid the invalid pension under Rule 39

and after his death on 24.7.1996, the respondent as the

widow, should be held entitled to family pension.

Page 5 of 17

12. The issue to be considered here is whether the minimum

qualifying service prescribed under the Pension Rules can be

ignored for the purpose of consideration of invalid pension

under Rule 39 of the Pension Rules. As a corollary, whether

the Tribunal or the High Court erred in directing invalid

pension for a government employee who did not have the

qualifying service, prescribed under the Pension Rules.

13. At this stage, the relevant provisions of the Pension

Rules are extracted hereinbelow for ready reference:-

“. . . . . . . . . . . . . . . . . . . .

39. Invalid Pension – (1) invalid pension may be granted if a Government servant retires from the service on account of bodily or mental infirmity which permanently incapacitates him for the service.

(2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely : -

(a) Medical Board, in the case of all Gazetted and specially declared Gazetted Government servants, and

(b) A Chief District Medical Officer or Medical Officer of equivalent status in case of other Government servants.

47. Amount of pension (1)

******** ******** ****

Page 6 of 17 2 (a) **** **** ******** ****

(b) In the case of Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under clause (a) and in no case the amount of pension shall be less than the minimum amount of pension admissible.

******** ******** ****

******** ******** ****

(5)(i) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be paid at a uniform rate on half month’s emoluments for every completed six monthly period of service.

56. Family Pension :

**** **** **** **** **** **** ****

(2) Without prejudice to the provisions contained in Sub-rule (4) where a Government servant dies-

**** **** **** **** **** **** *****

(c ) After retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter IV other than the pension referred to in rules 43 and 44 the family of the deceased shall be entitled to family pension, the amount of which shall be

Page 7 of 17 determined in accordance with the table below.

. . . . . . . . . . . . . . . . . . . . . .“

14. The respondent’s husband, late Sagar Naik was appointed

on 22.8.1989 under the Rehabilitation Assistance Scheme as

his father late Suri Naik died in harness, while serving in

the M.K.C.G. Medical College and Hospital. The appointee

was however found to be suffering from mental incapacity and

accordingly, on the basis of the medical certificate issued

by the HoD of the Psychiatric Department of the S.C.B.

Medical College, Cuttack, the employee was retired from

service on 6.7.1996 on the ground of mental incapacity. The

case paper reveals that the service of the employee was

erratic, as he remained absent from 1.2.1995 to 23.7.1995

and was under suspension from 24.7.1995 to 6.7.1996. Thus

his net qualifying service for the benefits under the

Pension Rules was taken as 4 years 6 months and 29 days

only.

15. For government servants not completing ten years

qualifying service prescribed in Rule 47(5)(i) of the

Pension Rules, the service gratuity is to be paid at a

uniform rate of half month’s emolument for every completed

Page 8 of 17 six months period of service. Such gratuity benefit as also

the other terminal benefits like GPF, unutilized Earned

Leave, Death-cum-Retirement Gratuity (DCRG), etc. were

sanctioned and paid to the widow of the employee.

Moreover, respondent was also appointed as a sweeper under

the Rehabilitation Assistance Scheme and she is in regular

government service, since 12.6.2006.

16. The gratuity and other benefits and the compassionate

appointment was accepted by the respondent without raising

any additional claim towards invalid pension for her

deceased husband, who retired on 6.7.1996.Long after his

death on 24.7.1996, the respondent approached the Tribunal

to belatedly pray for firstly, fixation of pay for her

husband in the revised scale with effect from 1.1.1996 till

his superannuation and also to sanction family pension

benefits for the applicant, following the death of the

government employee (on 24.7.1996) along with all

consequential and terminal benefits. The respondent never

however prayed for invalid pension before the Tribunal.

Yet, the Tribunal ordered for invalid pension for the

respondent’s husband, under Rule 39 of the Pension Rules.

Page 9 of 17

17. When the Tribunal’s decision was challenged in the High

Court, the State specifically contended that Rule 39 has to

be read together with Rule 47 of the Pension Rules and the

specified qualifying service must be satisfied even for

claiming invalid pension. But the High Court without

adverting to the specific contention raised by the

appellants, dismissed the writ petition with a cryptic order

observing that the Tribunal has passed a reasoned order and

that the husband of the respondent is entitled to invalid

pension under Rule 39 of the Pension Rules.

18. The requirement of completing the qualifying service of

ten years for receipt of pension is prescribed under Rule

47(2)(b) and for those government employees who retire

before completing the qualifying service, alternate relief

is envisaged under the Pension Rules itself. How the service

gratuity is to be computed, is also prescribed in Rule

47(5)(1) of the Pension Rules.

19. The respondent’s husband was retired on the ground of

mental infirmity and hence the service gratuity was paid and

the widow had received the same, without any demur. She

never raised any claim for invalid pension either at the

time of retirement on 6.7.1996 or even when she approached

Page 10 of 17 the Tribunal i.e. 14 years later in the year 2010.

Nevertheless, the Tribunal went beyond the prayers in the

O.A. No. 18(B)/2010 and ordered for invalid pension for late

Sagar Naik and then following his death, ordered for family

pension for the widow. In declaring such entitlement the

High Court and the Tribunal however ignored the qualifying

service of ten years as prescribed in the Pension Rules

although the State specifically argued that the qualifying

service criterion has to be satisfied not only for the

regular pension but also for the invalid pension since both

claims are to be considered under the very same Pension

Rules.

20. An employee becomes entitled to pension by stint of his

long service for the employer and, therefore, it should be

seen as a reward for toiling hard and long for the employer.

The Pension Rules provide for a qualifying service of 10

years for such entitlement. When the question arises as to

how certain provisions of the Pension Rules are to be

understood, it would be appropriate to read the provision in

its context which would mean reading the statute as a whole.

In other words, a particular provision of the statute should

be construed with reference to other provisions of the same

Page 11 of 17 statute so as to construe the enactment as a whole. It would

also be necessary to avoid an interpretation which will

involve conflict with two provisions of the same statute and

effort should be made for harmonious construction. In other

words, the provision of a Rule cannot be used to defeat

another Rule unless it is impossible to effect

reconciliation between them. Pension as already stated is

earned by stint of continuity and longevity of service and

minimum qualifying service should therefore be understood as

the requirement for invalid pension as well. The Pension

Rules can be harmoniously construed in this manner and in

that event, there shall be no clash between different

provisions in the said Rules.

21. The condition of qualifying service prescribed in the

Pension Rules must be satisfied to become eligible for

invalid pension and the arguments made to the contrary that

invalid pension can be claimed under Rule 39 without

satisfying the stipulated qualifying service mentioned in

the same Rules, do not appeal to us. The respondent’s

husband who had served for lesser years then the 10 years

qualifying service, was found entitled by his employers to

service gratuity only, because of his premature retirement

Page 12 of 17 on the ground of mental incapacitation and this is what is

prescribed by the Pension Rules. The dues toward service

gratuity was paid accordingly. The Pension Rules definitely

envisaged that there could be a situation where an employee

may not be eligible for pension benefits for not satisfying

the prescribed qualifying service of 10 years. For those

with less than 10 years’ service, the Pension Rules provide

for gratuity payment and therefore, it is difficult for us

to conclude that for invalid pension, qualifying years of

service, can be ignored.

22. The above view of ours is supported by the ratio in

Union of India and Another Vs. Bashirbhai R. Khiliji 1, where

this Court was considering claim for invalid pension for an

armed constable in the CRPF who suffered from pyrogenic

meningitis and neurosensory deafness (bilateral). In that

case, the CRPF personnel was declared unfit for active duty,

and he was invalidated from service. He applied to

authorities for invalid pension but that was rejected on the

ground that he had not completed the qualifying service of

10 years. Instead, he was paid service gratuity. The High

Court in that case however, took the view that since the

CRPF Constable’s invalidity was 100 per cent, he was 1(2007) 6 SCC 16

Page 13 of 17 entitled to invalid pension and the stipulation of 10 years

of qualifying service could not be invoked to deny him the

invalid pension. However, Justice A.K. Mathur, speaking for

a two judge Bench of this Court while interpreting similar

provisions in the applicable Rules, negated the High Court’s

view and pronounced on the issue of qualifying service for

invalid pension, in the following manner:-

“. . . . . . . . . . . . . . . . . . . . . .

9. We are presently concerned withtwo provisions of the Rules i.e., Rule 38 and

49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six-monthly period of qualifying service.

Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word “qualifying service” has been defined in Rule 3(1)(q) of the Rules which read as under:

Page 14 of 17

“3. (1)(q) ‘qualifying service’ means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;”

10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him.

. . . . . . . .. . . . . . . . . . . . . .” (Underlining added)

23. The above enunciation of the law on requirement of

qualifying service for invalid pension by the bench of two

judges is reiterated and approved by us.

24. In a case like this, the need for compassion and the

compliance of the norms has to be balanced. As earlier

noted, the allowable gratuity benefits were granted on

Page 15 of 17 account of the respondent’s husband and after he died, the

widow was appointed (on 12.6.2006) in a government job under

the Rehabilitation Assistance Scheme. Thus, the needed

means of sustenance was provided to the deceased’s family.

25. The respondent’s husband had not served for ten years

and was therefore, he disentitled for regular pension. For

the same reason, he cannot also be held entitled to invalid

pension. The different provisions of the Pension Rules

cannot be read in isolation and must be construed

harmoniously and the requirement of qualifying service

cannot be said to be irrelevant for claiming different

service benefits under the same Rules. Here the employee did

not satisfy the requirement of qualifying service and

therefore the invalid pension could not have been ordered

for him, under Rule 39 of the Pension Rules.

26. In the above context, it will bear emphasis that the

respondent never prayed for invalid pension for her husband

in her O.A. and yet the Tribunal as well as the High Court

granted her the unclaimed relief. Such additional

munificence, in addition to the job provided to the first

respondent under the Rehabilitation Assistance Scheme for

Page 16 of 17 the sustenance of the deceased’s family, in our view, was

unwarranted and the impugned order cannot be sustained.

27. In view of the foregoing, the impugned orders of

Tribunal and the High Court are set aside and the Appeal

stands allowed. The parties to bear their own cost.

………………………………………………J. [R.BANUMATHI]

………………………………………………J. [A.S.BOPANNA]

………………………………………………J. [HRISHIKESH ROY]

NEW DELHI DECEMBER 04, 2019.

Page 17 of 17