The State Of Rajasthan vs O.P. Gupta

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICION

SPECIAL LEAVE PETITION (CIVIL) NO…………….. of 2022 [DIARY NO. 27824 OF 2020]

STATE OF RAJASTHAN & OTHERS .....PETITIONERS

VERSUS O.P. GUPTA ......RESPONDENT

JUDGMENT

INDIRA BANERJEE, J.

Delay Condoned.

2. This Special Leave Petition has been filed challenging the final

judgment and order dated 28th November 2019, in D.B. Special

Appeal Writ No. 443 of 2018 passed by the High Court of Judicature

for Rajasthan Bench at Jaipur, whereby the High Court dismissed the

Writ Appeal filed by the Petitioners and upheld the judgment of the

Single Bench dated 5th May 2017 in S.B. Civil Writ Petition No. 5879

of 2009, whereby the Single Judge had allowed the Writ Petition filed

by the Respondent.

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2022.09.19 16:50:19 IST Reason: 1

3. The Respondent was initially appointed as an Assistant Charge

Man in the Rajasthan Agriculture Engineering Board, Department of

Agriculture, Government of Rajasthan w.e.f. 13th January 1967.

4. The Engineering Board was subsequently merged with the

Rajasthan State Agro Industry Corporation. Accordingly, the services

of the Respondent were transferred to the Rajasthan State Agro

Industry Corporation vide transfer order dated 8th July 1970, on the

same pay scale. He worked with Rajasthan State Agro Industry

Corporation continuously till 12th April 1977.

5. Pursuant to an advertisement dated 16th June 1976 issued by

the Rajasthan Public Service Commission (hereinafter referred to as

“RPSC”), the Respondent applied for the post of Assistant Director

(Agro-Industries). The Respondent was selected for the post of

Assistant Director (Agro-Industries), Department of Industries, State

of Rajasthan.

6. The Respondent was appointed as Assistant Director (Agro-

Industries), Department of Industries, State of Rajasthan by an order

dated 7th April 1977. According to the Respondent, he joined service

in the Department of Industries on 16th April 1977.

7. The Respondent while serving in the Department of Industries,

attained the age of superannuation and retired on 30th April 2003

from the post of Additional Director of Industries, Headquarter,

Jaipur. However, while counting the length of service of the

2 Respondent for the purpose of calculating pension and other retiral

benefits, the Petitioners did not count the tenure from 13 th January

1967 to 12th April 1977 (i.e. the period for which the Respondent

worked for the Rajasthan Agriculture Engineering Board and the

Rajasthan State Agro Industry Corporation).

8. The Respondent submitted representations to the Department

of Industries requesting that his service tenure from 13 th January

1967 to 12th April 1977 be counted for the purposes of his pension

and retiral benefits. However, the request for counting the service

tenure from 13th January 1967 to 12th April 1977, was not granted.

9. Aggrieved, the Respondent filed S.B. Civil Writ Petition No.

5879 of 2009 before the Single Judge, Rajasthan High Court on or

about 20th March 2009. The moot point for consideration before the

Single Judge was, whether service rendered by the Respondent/Writ

Petitioner prior to resignation from the Rajasthan State Agro Industry

Corporation, should be counted for the purpose of pension.

10. By a Judgment and Order dated 5 th May 2017, the Single Bench

allowed S.B. Civil Writ Petition No. 5879 of 2009 and held that the

service rendered by the Respondent with the Rajasthan Agriculture

Engineering Board and the Rajasthan State Agro Industry

Corporation, was liable to be counted, while computing

pension/other pensionary benefits of the Respondent.

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11. The Writ Petition was disposed of with a direction to the

Petitioners to count the earlier period of service rendered by the

Respondent with the Rajasthan Agriculture Engineering Board and

the Rajasthan State Agro Industry Corporation to compute the total

pensionable service of the Respondent and release his pension and

retiral benefits including arrears of pension with interest @ 9% p.a.

within a period of three months from the date of the submission of

the certified copy of the order. According to the Respondent, a copy

of the judgment and order dated 5th May 2017 was submitted to the

Petitioners on 15th May 2017 by registered post. However, the

Petitioners did not comply with the Judgment and order.

12. The Petitioner–State filed an appeal being D.B. Special Appeal

Writ No. 443 of 2018 against the judgment and order dated 5 th May

2017 before the Division Bench. The Respondent filed a Contempt

Petition, being S.B. Civil Contempt Petition No. 265 of 2018 alleging

non-compliance of the Judgment and order dated 5 th May 2017 in

spite of knowledge thereof. It was submitted that a copy of the

judgment and order had been served on the Petitioners on 15 th May

2017 by registered post.

13. By an order dated 14th March 2018 in S.B. Civil Contempt

Petition No. 265 of 2018, the High Court directed the Petitioners to

comply with the judgment and order dated 5th May 2017 within 15

days, failing which the Additional Chief Secretary, Department of

4 Industries, Government of Rajasthan would have to be present in

Court and explain the reasons/circumstances for non-compliance.

14. By the impugned Judgment and Order dated 28 th November

2019, the Division Bench of the High Court dismissed the Writ Appeal

being D. B. Special Appeal Writ No. 443 of 2018 with the following

observations:

“...Admittedly, service of the respondent under the Rajasthan Agriculture Engineering Board was pensionable. As per Rule 25(2) of the Rajasthan Civil Services (Pension) Rules, 1996, 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. Hence, learned Single Judge has rightly held service rendered by the respondent with Rajasthan Agriculture Engineering Board and Rajasthan Agro Industry Corporation was liable to be counted while computing pension/other pensionary benefits of the respondent.”

15. Rule 25 of the Rajasthan Civil Services (Pension) Rules, 1996

hereinafter referred to as “the Rules” reads as follows:

“25. 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 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.”

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16. Admittedly, the Respondent was initially appointed as Assistant

Charge Man in the Rajasthan Agriculture Engineering Board from

where his services were transferred to the Rajasthan State Agro

Industry Corporation, where he worked till 12 th April 1977.

Thereafter he was appointed Assistant Director (Agro-Industries) in

the Industry Department and submitted his resignation from the

Rajasthan State Agro Industry Corporation. Admittedly, the service of

the Respondent under the Rajasthan Agriculture Engineering Board

and the Rajasthan State Agro Industry Corporation was pensionable,

as found by the High Court.

17. Dr. Manish Singhvi, learned Senior Counsel, appearing on

behalf of the Petitioners argued that the High Court had

misconstrued Rule 25(2) of the Rules. He argued that resignation

entails forfeiture of past service with the Rajasthan State Agro

Industry Corporation, for the purpose of pension.

18. The Respondent resigned from Rajasthan State Agro Industry

Corporation to take up appointment as Assistant Director (Agro-

Industries) in the Department of Industries in the State of Rajasthan,

after being selected through the RPSC.

19. The Division Bench and the Single Bench of the High Court

have concurred. The effective and concurrent factual finding of the

Division Bench and the Single Bench of the High Court, that the

Respondent had resigned with proper permission to take up another

6 appointment, under the Government, for which he was qualified,

does not call for interference under Article 136 of the Constitution of

India.

20. Dr. Singhvi, emphatically argued that :

i. the Writ Petition was filed by the Respondent after six years.

ii. the Respondent was appointed to a higher post in the Industry Department. As such his past employment was inconsequential.

iii. There was no proof of prior permission before resignation from Rajasthan State Agro Industry Corporation.

21. Dr. Singhvi submitted that the appointment was a fresh

appointment for which past service was inconsequential. Dr. Singhvi,

emphatically argued that, in service jurisprudence, resignation

necessarily leads to cessation from service and entails forfeiture of

past service. The stand taken by the State is arbitrary, unreasonable

and misconceived.

22. The State is bound by the fundamental rights of its employees

under Articles 14 to 16 of the Constitution of India. It is now well

settled that arbitrariness violates the right to equality under Articles

14 to 16 of the Constitution of India.

23. There can be no doubt that resignation from service may entail

forfeiture of past service. However, sub-rule (2) of Rule 25 of the

Rules carves out an exception. The said sub-rule clarifies that a

resignation with proper permission to take up another appointment,

7 whether temporary or permanent, under the Government shall not

entail forfeiture of past service.

24. At the cost of repetition, it is reiterated that the Respondent

was selected through the RPSC. He applied for the post of Assistant

Director (Agro-Industries), while he was still in service of the

Rajasthan State Agro Industry Corporation, which is also an entity

fully controlled by the State of Rajasthan.

25. The Respondent having retired after working for about 26

years, the Petitioner - State cannot raise the question of proof of

prior permission before resignation, more so when the appointment

had been made through the RPSC to a Government post. It is to be

deemed that there has been disclosure of past service and the

application has been made through proper channel by obtaining the

requisite approvals.

26. It is to be presumed that prior permission had been taken

unless the contrary could be established by the State. May be there

was a delay of six years in filing the Writ Petition, however, it is well

settled that the laws of limitation do not apply to exercise of

jurisdiction under Article 226 of the Constitution of India. Relief

under Article 226 of the Constitution of India being discretionary, the

Courts might in their discretion refuse to entertain the Writ Petition,

where there is gross delay on the part of the Writ Petitioner,

8 particularly, where the relief sought would, if granted, unsettle

things, which are already settled.

27. In this case, the Respondent-Writ Petitioner is claiming pension,

which is a life long benefit. Denial of pension is a continuing wrong.

This Court cannot also be oblivious to the difficulties of a retired

employee in approaching the Court, which could include financial

constraints.

28. It is settled law that when financial rules framed by the

Government such as Pension Rules are capable of more

interpretations than one, the Courts should lean towards that

interpretation which goes in favour of the employee.

29. Ms. Archana Pathak Dave, counsel appearing on behalf of the

Respondent argued that Article 136 of the Constitution of India does

not create a regular forum of Appeal. It is only a residual provision

which enables this Court to interfere with the judgment and order of

any Court or Tribunal in India, in its discretion, as observed by this

Court in N. Suriyakala v. A. Mohandoss and Ors.1.

30. Citing Bengal Chemical and Pharmaceutical Works Ltd. v.

Employees2, Ms. Dave argued that since power under Article 136 of

the Constitution of India was discretionary, this Court is not bound to

1 (2007) 9 SCC 196 2 AIR 1959 SC 633 (at 635) 9 set aside an order under Article 136, even if it was not in conformity

with law.

31. The High Court has rendered a just decision based on a

purposive interpretation of Rule 25(2) of the Rules applied to the

admitted facts on record. The interpretation given by the High Court

to Rule 25(2) of the Rules is a plausible interpretation.

32. We, therefore, find no grounds to interfere with the impugned

judgment and order passed by the High Court.

33. The Special Leave Petition is, accordingly, dismissed.

.................................. J [INDIRA BANERJEE]

................................... J [J.K. MAHESHWARI]

NEW DELHI;

SEPTEMBER 19, 2022

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