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2004 DIGILAW 435 (RAJ)

C. P. Singh v. State of Rajasthan

2004-03-19

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This civil second appeal under section 100 CPC arises out of the judgment and decree dated 17.12.1994 passed by the learned Additional District Judge No. 4, Jaipur City, Jaipur in Civil Regular 1st Appeal No. 192/80 confirming the judgment and decree dated 24.5.1980 passed by the learned Additional s Munsiff & Judicial Magistrate No. 2, Jaipur City, Jaipur in civil suit No. 89/76. 2. The facts relevant for disposal of this appeal may be summarised as follows: 3. The plaintiff-appellant filed a suit with the averments that initially he was an employee of the erstwhile State of Ajmer. The Ajmer State was to centrally administered area till 1956 when the part 'C' State of Ajmer was integrated with the State of Rajasthan w.e.f. 1.11.1956. The appellant came to be absorbed as Cane Development Assistant in the pay sale of Rs.150-350 w.e.f. 1.11.1956. On 31.12.1962 he was promoted to the post of Assistant Sugarcane Development Officer. He was further promoted to the post of Deputy Director, Agriculture w.e.f. 17.5.1974. The plaintiff further averred that he was absorbed in the services of State of Rajasthan w.e.f. 1.11.1956. However, he did not opt for the Rajasthan Service Rules as regards pension and other retiral benefits and therefore, he continued to be governed by the Pension Rules of the erstwhile Ajmer State, namely, the Civil Service Regulations. According to the plaint, the law and the rules are well settled that any claim with regard to pension or family pension of a Government servant, whether governed by the Central Rules or the State Rules, shall be regulated by the provisions of the Rules in force at the time when a Government servant attains the age of superannuation. Similar is the provision in the Civil Service Regulations. 4. The plaintiff averred that the age prescribed for superannuation under the Civil Service Regulations is 58 years and his date of birth being 19.6.1919, he had to attain the age of superannuation on 19.6.1977, on attaining the age of 58 years. 5. Similar is the provision in the Civil Service Regulations. 4. The plaintiff averred that the age prescribed for superannuation under the Civil Service Regulations is 58 years and his date of birth being 19.6.1919, he had to attain the age of superannuation on 19.6.1977, on attaining the age of 58 years. 5. The allegation of the plaintiff as contained in the plaint was that in utter disregard to the service conditions applicable to him, he was made to retire from service on attaining the age of 55 years vide letter dated 19.6.1974 1 issued by the Government of Rajasthan, notwithstanding the fact that neither he opted for the Rajasthan Service Rules nor his pension and retiral benefits were to be regulated under the Rajasthan Service Rules. A copy of the order dated 19.6.1974 retiring the appellant was also endorsed to the respondent 5 No. 4, the Accountant General. But the respondent No. 4 also failed to appreciate the grievance of the appellant that his case was to be governed under the Civil Service Regulations and not under the State Rules. Further allegation of the plaintiff is that the State Government vide its letter dated 9.1.1975 sent a certificate as required u/R. 250(c) of the Rajasthan Service Rules to the Accountant General. However, the Accountant General, vide letter dated 30.1.1975, instead pointing out this glaring financial irregularity to the State Government asked the State Government to get the plaintiff's case regularised by the Departmental Promotion Committee so that the above Certificate could be admitted by him. In turn, the State Government vide its 15 letter dated 29.3.1975 informed the Accountant General that the plaintiff 'Should have been selected for the post held by him by the CPC in case he had not been retired. It was under these circumstances that the above certificate u/R. 250(c) was issued by the Government. 6. Subsequently, on reconsideration, the respondent No. 4 realised that since the plaintiff had never opted for Rajasthan Pension Rules, the certificate ;sued under the Rajasthan Service Rules was not applicable to the plaintiff's case as is evident from the letter dated 11.4.1975, and accordingly the State Government was requested to furnish certificate u/R. 486(h) of the Civil Service Regulations. Thereupon, the State Government vide its letter dated 25 14.4.1975 furnished a certificate u/R. 486(h) of the Civil Service Regulations to the Accountant General. 7. Thereupon, the State Government vide its letter dated 25 14.4.1975 furnished a certificate u/R. 486(h) of the Civil Service Regulations to the Accountant General. 7. The respondent No 4 did not accept the certificate issued u/Art. 486(h) of the Civil Service Regulations on the ground of it being incomplete and accordingly, vide its letter dated 1.5.1975 informed the State Government Mat a complete and categorical certificate as per R.486(h) be issued. The Accountant General vide its letter dated 17.8.1975 informed the plaintiff that the above certificate issued under Civil Service Regulations was incomplete and has been returned to the State Government. Action, if any, would be taken after reply from the State Government. In these circumstances, the plaintiff averred that retiral benefits are to be governed under the Civil Service Regulations and that the order dated 18.6.1974 retiring the plaintiff w.e.f. 19.6.1974 was illegal, inoperative and ineffective in as much as he was to retire on attaining the age of superannuation i.e. 18.6.1977 as provided under Civil Service Regulations. He was entitled under law to continue in service 40 1 18.6.1977. 8. The defendants contested the suit by filing written statement. The defendants denied the averments made in the plaint and inter alia, took the lea that prior to 1.12.1962 and the day on which the plaintiff opted for Pension Rules of the Ajmer State, the age of retirement was 55 years and it 45 was made 58 years w.e.f. 1.12.1962. According to the defendants the plaintiff has rightly been retired w.e.f. 19.6.1974 on attaining the age of 55 years. 9. On the basis of pleadings of the parties. the trial Court framed issues and after hearing counsel for the parties dismissed the plaintiff's suit on the ground that Civil Service Regulations were not applicable in respect of retirement of the plaintiff. The trial Court concluded that the option given by tie plaintiff under the Rajasthan Services (Protection of Service Conditions) Rules, 1957 at the time of merger of Ajmer State into the State of Rajasthan, was only in respect of pension and leave matters and it had no nexus with the age of superannuation and therefore, the Civil Service Regulations applicable to the employees of erstwhile Ajmer State were applicable to the case of the plaintiff in respect of leave and pensionary benefits Only. 10. 10. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal. The appellate Court vide its judgment and decree dated 17.12.1994 dismissed the plaintiff's appeal and confirmed the judgment and decree of the trial Court. Hence this second appeal by the plaintiff. 11. This Court vide order dated 5.5.2003 admitted the appeal on the following substantial questions of law: (1) Whether the Central Service Rules as in force on 1.11.1956 as amended from time to time would be applicable to the appellant-applicant and not the Rajasthan Service Rules, 1951? (2) Whether two sets of rules can be made applicable to an employee i.e. the Central Service Rules for the purpose of leave and pension and the Rajasthan Service Rules for the purpose of determining his age of superannuation? (3) Whether the appellant is protected under proviso to sub-section (7) of Section 115 of the State Re-organisation Act, 1956 and the Rules made thereunder and his conditions of service as applicable immediately before the appointed day cannot be varied to his disadvantage except with the previous approval of the Central Government which has not been obtained in the case of the appellant? 12. Mr. Sajjan Raj Surana, learned counsel appearing for the plaintiff-appellant, assailing the finding of the learned Courts below has argued that in view of the fact that the appellant had opted for Civil Service Regulations for the purposes of pension and leave etc. and his service conditions were protected under the Rajasthan Services (Protection of Service Conditions) Rules, 1957 and, therefore, he could not have been retired at the age of 55 years as provided by the Rajasthan Service Rules, 1951 and his age of superannuation should have been taken 58 years as mentioned in the Civil Service Regulations. As per the contention of the learned counsel for the appellant on 19.6.1974 the day on which the plaintiff-appellant was made to retire from service, the age of superannuation under the Civil Service Regulations was 58 years and thus, he should have been allowed to continue in service upto 19.6.1977. As per the contention of the learned counsel for the appellant on 19.6.1974 the day on which the plaintiff-appellant was made to retire from service, the age of superannuation under the Civil Service Regulations was 58 years and thus, he should have been allowed to continue in service upto 19.6.1977. Learned counsel has also argued that the Courts below have committed grave error in appreciating contention of the respondents that in the year 1956 when the appellant came in the services of the Government of Rajasthan, the age of superannuation for the employees of the Central Government was also 55 years and thus, the plaintiff had no right to derive the benefit of subsequently enhanced age of superannuation. As per the submission of the learned counsel for the appellant, the Civil Service Regulations applicable on 1.11.1956 were protected by the Rajasthan State Re-organisation Act, 1956 and, thereby, the Civil Service Regulations as applicable on 1.11.1956 were made applicable in the case of the appellant and therefore, he was legally entitled to get the benefits of the amendments made in the Civil Service Regulations from time to time. 13. On the other hand, learned counsel appearing for the respondents while supporting the findings of the Courts below has contended that no interference is required in the findings of the learned Courts below and the 1 second appeal deserves to be dismissed with costs. 14. I have heard learned counsel for the parties and gone through the lodgments at the Courts below and the material available on record of the case. 15. From the pleadings of the parties and evidence adduced by them the undisputed facts emerging therefrom may be stated below:- (1) The appellant was appointed in the State of Ajmer. (2) On reorganisation of States in 1956, Ajmer which was a part 'C' state was integrated into the State of Rajasthan. (3) The appellant was absorbed in the State Service after coming into force the States Reorganisation Act, 1956. (4) At the time of reorganisation, Rajasthan Service Rules, 1951 were in existence in the State of Rajasthan. (5) The date of birth of the appellant is 19.6.1919 and he was made to Is retire on attaining the age of 55 years on 19.6.1974 under the Rajasthan Service Rules, 1951. (4) At the time of reorganisation, Rajasthan Service Rules, 1951 were in existence in the State of Rajasthan. (5) The date of birth of the appellant is 19.6.1919 and he was made to Is retire on attaining the age of 55 years on 19.6.1974 under the Rajasthan Service Rules, 1951. (6) The age of superannuation under the Civil Service Regulations on 31.10.1956 and in the year 1974 was 55 & 58 years, respectively. (7) The appellant exercised option for pension, electing the rules 20 applicable to him immediately before the appointed day under section 11 of the Rajasthan Services (Protection of Service Conditions) Rules, 1957. (8) Pension to the appellant was sanctioned under the Civil Service Regulations. 16. From the undisputed facts enumerated above, the question that falls for my consideration is as to by which rules, whether Central or State Rules, appellant was governed after his absorption. It is obvious that unless the Rajasthan Service Rules, 1951 were made specifically applicable to the appellant, his service was bound to be governed by Civil Service Regulations as would be evident from a bare reading of Section 115 of the State Re- 30 Organisation Act, 1956. Sub-section (7) of that Section provides as under "(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government." 17. It is thus clear that Rajasthan Service Rules, 1951 had no nexus so far as the age of superannuation of the plaintiff is concerned in as much as the Rules of 1951 cannot be said to have automatic application, particularly in view of the fact that plaintiff opted for Civil Service Regulations for the purpose of pension. It is evident that the appellant exercised option of electing the rules applicable to him immediately before the appointed day so far as pension is concerned. The Civil Service Regulations. It is evident that the appellant exercised option of electing the rules applicable to him immediately before the appointed day so far as pension is concerned. The Civil Service Regulations. which also in lodes the age of superannuation under the heading 'superannuatory pension were applicable to the appellant for grant of pension. It is true that or 30.10.1956, under the Civil Service Regulations, the age of superannuation was 55 years but it came to be amended in the year 1962 and in the year 1974 when the appellant was made to retire, the age of superannuation was 58 years. 18. The appellant was made to retire on attaining the age of 55 years under the Rajasthan Service Rules, 1951 whereas he was granted pension in s accordance with the Civil Service Regulations. The action of the respondents of applying two different service rules one for determination of age of superannuation and another for grant of pension in itself is self-contradictory because Civil Service Regulations prescribes the age of superannuation and on attaining that age prescribed thereunder, the employee becomes eligible for superannuatory pension. Therefore, for both the purposes i.e. for the age of superannuation and consequent thereto for eligibility of superannuatory pension, Civil Service Regulations were applicable to the appellant for which he duly opted in terms of Section 11 of the Rajasthan Services (Protection of Service Conditions) Rules, 1957. 19. In the result, the appeal of the appellant is allowed. The judgments and decree of both the Courts below are set aside. The suit of the plaintiff is decreed and his order of retirement dated 18.6.1974 retiring him from service w.e.f. 19.6.1974 (F.N.) on attaining the age of 55 years in terms of the age of retirement prescribed under the Rajasthan Service Rules, 1951, is declared to be illegal and the same is quashed. It is also declared that the appellant was entitled to continue in service up to the age of 58 years i.e. the age of retirement as per the Civil Service Regulations. The plaintiff is also entitled for all the benefits like pay, increments and other service benefits as if he had not retired from service on 19.6.1974. Cost is made easy.Appeal Allowed-Judgement of Court Below Set Aside. *******