STATE OF RAJASTHAN & OTHERS VERSUS O.P. GUPTA

STATE OF RAJASTHAN & OTHERS VERSUS O.P. GUPTA


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
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
J U D G M E N T
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.
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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 (AgroIndustries), 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
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Respondent for the purpose of calculating pension and other retiral
benefits, the Petitioners did not count the tenure from 13th 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 13th 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 5th 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.
3
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 5th 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 5th 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 15th 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
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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 28th 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 12th 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 (AgroIndustries) 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
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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,
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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,
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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.
Employees
2
, 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)
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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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