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1992 DIGILAW 1309 (ALL)

Brij Kishore Srivastava v. Parganaadhikari Jalann

1992-09-24

A.N.GUPTA, D.S.SINHA

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JUDGMENT D. S. Sinha, J. 1. Heard Sri H. R. Misra, the learned Standing Counsel appearing for the Sub Divisional Officer, Jalaun at Orai, District Jalaun and Sri Bhagwati Prasad Srivastava iearned counsel representing Sri Brij Kishore Srivastava, the petitioner. 2. Invoking the powers under Rule 56 of the U. P. Fundamental Rules, the Sub-Divisional Officer, Jalaun at Orai, District Jalaun, passed an order dated 28th May, 1986 whereby the petitioner, who was a Lekhpal at Tehsil Jalaun, was required to retire w. e. f. 31st May, 1986. The aforesaid order dated 28th May, 1986 requiring him to retire compulsorily from service was challenged by the petitioner through instant writ petition which was allowed by this Court by means of its judgment and order dated 26th September, 1988, and the order dated 28th May 1986, retiring the petitioner compulsorily, was quashed. 3. The principal submission, which was advanced on behalf of the petitioner and accepted by the Court, was that the provisions of Rule 56 of the U. P. Fundamental Rules were not applicable in the case of the petitioner who belonged to the cadre of Lekhpal's service. 4. According to the petitioner, he was governed by the provisions contained in the Lekhpai's Service Rules, 1958, hereinafter called the Rules. Under the Rules a Lekhpal could be retired compulsorily only if he had attained the age of 55 years while the petitioner had, on the date with effect from which he was required to retire, attained the age of about 53 years only. Although, in the counter affidavit filed on behalf of the Sub-Divisional Officer, it was asserted that the petitioner could be retired on attaining the age of 50 years according to the latest Rules but at the time of hearing those Rules could not be produced by the learned counsel representing the Sub-Divisional Officer. The court, therefore, proceeded on the basis of the unamended first proviso to Rule 31 of the Rules. 5. By means of the review application dated 39th May, 1989 the Court Is called upon to review and recall its judgment and order dated 26th September, 1988 whereby it quashed the order dated 28th May, 1986 retiring the petitioner from service compulsorily. 6. 5. By means of the review application dated 39th May, 1989 the Court Is called upon to review and recall its judgment and order dated 26th September, 1988 whereby it quashed the order dated 28th May, 1986 retiring the petitioner from service compulsorily. 6. It cannot be disputed that under the unamended provisions contained in the first proviso to Rule 31 of the Rules the petitioner could be retired compulsorily only on attaining the age of 55 years. Since the petitioner had attained the age of about 53 years only the impugned order, therefore, was bound to fall through, and no umbrage could be entertained against the Judgment of the Court quashing the order. However, difficulty has arisen on account of the fact that the Rules had undergone change with effect from November, 5, 1969 in pursuance of the Lekhpai's Service (Amendment) Rules, 1975, as is evident from Annexure-1 to the affidavit of Sri Laxmi Narain Goswami filed in support of the review-application dated 10th May, 1989. 7. Amended Lekhpai's Service Rules, 1975, which were made applicable with effect from 5th November, 1969, purport to apply the provisions of Rule 56 of the U. P. Fundamental Rules and Article 465 of the Civil Service Regulations, as amended from time to time mutatis mutandis to the members of services governed by the Lekhpal Service Rules. Consequently the petitioner could be retired on attaining the age of 50 years as contemplated by Rule 56 (o) of the U.P. Fundamental Rules. Judging on the basis of the provisions of Rule 56 (c) of U. P. Fundamental Rules, the order dated 28th May, 1986 requiring the petitioner to retire at the age of about 53 years had to be sustained and could net be quashed The judgment and order dated 26th September, 1988 passed by this Court quashing the order of compulsory retirement of the petitioner from service dated 28th May, 1986, therefore, suffers from an error apparent on the face of the record. It cannot be maintained and must perish. 8. The review application is, therefore, allowed and judgment and order dated 26th September, 1988 passed in the instant petition is set aside. Consequent upon the setting aside of the judgment and order dated 26th September, 1988, the writ-petition and the order dated 28th May, 1986 requiring the petitioner to retire compulsorily with effect from 31st May, 1986 stand revived. 9. The review application is, therefore, allowed and judgment and order dated 26th September, 1988 passed in the instant petition is set aside. Consequent upon the setting aside of the judgment and order dated 26th September, 1988, the writ-petition and the order dated 28th May, 1986 requiring the petitioner to retire compulsorily with effect from 31st May, 1986 stand revived. 9. Normally, the Court would have proceeded to adjudicate upon the validity of the order dated 28th May, 1986 retiring the petitioner compulsorily. on merits but in view of the events subsequent to the passing of the judgment and order dated 26th September, 1988 it does not appear to be expedient to do so. 10. From the material before the Court it appears that the petitioner has, on attaining the age of 58 years, superannuated with effect from 14th December, 1990. In the meantime he derived pecuniary benefit on account of the fact that the order dated 28th May, 1986, requiring him to retire compulsorily was stayed by this Court on 6th March, 1987 and this interim order survived till 2nd April, 1990 on which date, on the review application moved on behalf of the Sub-Divisional Officer, the court stayed the operation of the judgment and order dated 26th September, 1988, qashing the order of compulsory retirement of the petitioner dated 28th May, 1986. The Court is of the opinion that if the petitioner is called upon to refund the salary etc, it would result In serious miscarriage of justice to him, specially in view of the fact that the petitioner must have worked till he attained the age of superannuation. On the facts and circumstances, stated hereinbefore, the Court declines to adjudicate upon the validity of the order dated 28th May, 1986 requiring the petitioner to retire from the service with effect from 31st May, 1986 and disposes of the writ petition finally with the direction that the petitioner shall not be called upon to refund the emoluments received by him during the period between 6th March, 1987 and 14th December, 1990 Further, the period between 6th March, 1987 and 2nd April, 1990, during which the petitioner worked on the strength of the Interim order dated 6th March, 1987 and the judgment dated 26th September, 1988, shall not count towards the retiral benefits. 11. 11. Before parting with the case the Court would like to place on record Its deep appreciation for the rare sense of professional duty towards the causa of the justice exhibited by Sri S. P. Gupta, Senior Advocate of this court, which he owed as an esteemed member of the Bar and an honourable officer of the Court Apprehending that the direction of the Court that the period between 6th March, 1987 and 2nd April, 1990 shall not count towards the retiral benefits of the petitioner may be erroneous, Sri Gupta referred to a Division Court decision of this Court, tendered in the case of Mohan Lal Gapoor v. State of U. P., 1984 UP LB EC 231, wherein it was observed that merely because the petitioner's continuance in service was in pursuance of interim order does sot effect the petitioner's right to pensionary benefits. 12. The reference to the case of Mohan Lal Capoor v. State of U. P. (Supra) is not apposite, rather it is misplaced. Initially, the Court had ordered that the impugned order retiring Mohan Lal Capoor compulsorily shall not be given effect. But later on the Court modified the interim order giving liberty to the respondents to take or not to take work from Mohan Lal Capoor. The respondents, though they were not obliged to do so, chose to fake work from Mohan Lal Capoor. In this back-drop the Court observed that the course of action adopted by the State was not the direct consequence of the Interim order of this Court that the respondents were granted full freedom by this Court not to take work from the petitioner but even thereafter the petitioner was required to render service, which the petitioner rendered effectively that the respondents cannot now turn round and say that the period of service rendered by the petitioner during the pendency of the writ petition cannot be taken into account in determining his pension and other benefits ; and that a party cannot avail of benefit under the Court's order and simultaneously shift the blame on the Court for the consequences which flow from the order passed so that it may be able to plead actus curiae nominem gravabit (the act of the Court shall prejudice no man). For these reasons, the Court opined that the period of service which the petitioner rendered during the pendency of the writ petition must be taken into account in determining the length of service rendered by the petitioner for the purpose of granting pension and other pecuniary benefits and merely because the petitioner's continuance in service was in pursuance of interim order does not affect the petitioner's right to pensionary benefits. In the instant case the facts and circumstances are totally different. The order retiring the petitioner compulsorily with effect from 31st May, 1986 was passed on 28th May, 1986 and was allowed to become effective. After the lapse of a period of three months, the petitioner presented this petition challenging the order of retirement on 28th August, 1986. the Court directed the petition to be listed in ordinary course, presumably! at the request of the counsel for the petitioner. Thereafter, the order-sheet indicates, the petition was listed on five different dates before the different Benches but no interim order was passed and the Impugned order retiring the petitioner from service compulsorily continued to operate. Strangely, on 6th March. 1987 the Court, while granting further time to the Standing Counsel representing the respondent for filing counter-affidavit, directed that "the operation of the order dated 28-5-1986 shall remain stayed". It is to be noticed that the petition was not admitted one and, further, that no fresh written application for stay is available on record. It appears that the petitioner was allowed to resume and render service in obedience of the said stay order dated 6th March, 1987. This interim order, unlike the modified interim order passed in the case of Mohan Lal Capoor, did not grant liberty to the respondent to take or not to take work from the petitioner. It rather obliged the respondent to take work from the petitioner. Otherwise, the respondent would have exposed himself to the proceedings for contempt of court Eventually, the writ petition was disposed of and allowed at the admission stage on 26th September, 1988 The Court quashed the order purporting to retire the petitioner with effect from 31st May 1986. It rather obliged the respondent to take work from the petitioner. Otherwise, the respondent would have exposed himself to the proceedings for contempt of court Eventually, the writ petition was disposed of and allowed at the admission stage on 26th September, 1988 The Court quashed the order purporting to retire the petitioner with effect from 31st May 1986. Thus, the petitioner rendered service during the period between 6th March, 1987 and 2nd April, 1990, firstly, on the basis of the interim order of the court passed on 6th March, 1987, and thereafter, on the strength of the judgment of the Court dated 26th September, 1988, operation whereof was stayed on 2nd April, 1990 and which has been set aside today. To allow the service rendered by the petitioner during the period between 6th March, 1987 and 2nd April, 1990 to be reckoned for the purpose of retiral benefits will, therefore, be clearly inconsistent with justice and illegal. It will rather amount to granting the petitioner unjust enrichment which is, indisputably, forbidden in enquity and law both.