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Patna High Court · body

2007 DIGILAW 345 (PAT)

Syed Raza Ahmad Hussaini v. State Of Bihar

2007-02-14

J.N.BHATT

body2007
Judgment J.N.BHATT, J. 1. Could a person after having resigned from the service putting in 11 years, 2 months and 22 days service in the Administration of Law and Justice be entitled to the pensionary benefits in terms of the Rules and Regulations governing the service condition, as a government servant, is a sole question which has been brought into focus in this writ petition under Article 226 of the Constitution of India by a retired Judicial Officer of the State of Bihar on the premise that the denial of the pensionary benefits by the respondent-authorities would tantamount to an act of illegality depriving him on his right of proportionate pension. 2. In order to examine and appreciating the merits of the rival versions, we have heard the learned Counsels appearing for the parties at the admission stage. We have, also taken into consideration the factual profile of the case, as well as, the relevant proposition of law. We have, also, considered the case law relied on by the petitioner (in person) and the relevant provisions relied on by the learned Counsels for the respondents. 3. The following aspects, indisputably, emerged from the record, which may be highlighted, are relevant for the purpose of adjudication of the controversy raised in the present case: 1. The petitioner is a Judicial Officer, who resigned from his service after putting in 11 years, 2 months and 22 days in the District Judiciary as a Munsif or a Civil (Junior) in JMFC. 2. His resignation came to be effective w.e.f. 1st September, 1986 upon acceptance by the State Government on recommendation of the High Court. 3. The petitioner tendered his resignation voluntarily and unilaterally on the ground of his premature transfer from Bhagalpur to Madhubani, which, highly, shocked and mentally disturbed him. 4. The photo copy of the resignation letter of the petitioner is placed at Annexure-2 to the petition. 5. The photo copy of the notification dated 19.8.1986 issued by the Government upon recommendation of the High Court about acceptance of the resignation of the petitioner is placed at Annexure 3 to the petition. 6. The photo copy of the order no. 127/G of 1986 dated 30.8.1986 of the District Judge, Madhubani, directing the petitioner to make over charge is placed at Annexure 4 to the petition. 7. 6. The photo copy of the order no. 127/G of 1986 dated 30.8.1986 of the District Judge, Madhubani, directing the petitioner to make over charge is placed at Annexure 4 to the petition. 7. The photo copy of the letter dated 24.6.2005 of the Accountant General, Bihar, Patna, is placed at Annexure 6 to the petition. 8. The photo copy of the letter bearing memo no. 7354 dated 31.7.2006 issued from the office of the Registrar General, High Court, Patna communicated to the petitioner, is placed at Annexure-7 to the petition. 9. The contention of the High Court, as well as, the State Government has been that the representation, which was made after 18 years of retirement of service was processed in accordance with law. 10. In course of the process, the relevant provisions of the Service Conditions and the Code, as well as, the Pension Rules have been taken into consideration while rejecting the representation. 11. Thus, the petitioner has been informed by the authorities that he is not qualified to claim pension since he has voluntarily and unilaterally resigned from the service after serving 11 years, 2 months and 22 days. 4. The petitioner has appeared as party (in person), who once upon a time belonged to the judicial fraternity. He has taken us through the relevant documentary evidence placed on record in support of the provision that he has been entitled to claim the pension even despite his resignation as he has completed more than 10 years of service in employment with the judiciary. 5. In support of his contention he has placed reliance on the following 3 decisions: 1. Union of India and others Vs. Lt. Col. P.S. Bhargava, (1997)2 SCC 28 , 2. Tapan Kumar Chatterjee Vs. The State of Bihar & Ors., 1998 (1) PLJR 707,. 3. Dr. (Smt.) Shahida Hasan Vs. The State of Bihar & Ors., 2004 (1) PLJR 318,. Reference of these case law will be made by us hereinafter in course of discussions of the sole issue brought into focus for our consideration and adjudication. 6. The learned Counsels appearing for the State, as well as, the High Court have, also, offered their submissions and placed reliance, mainly, on the provision of Rule 101 (a) read with Rule 135 of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules). 7. 6. The learned Counsels appearing for the State, as well as, the High Court have, also, offered their submissions and placed reliance, mainly, on the provision of Rule 101 (a) read with Rule 135 of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules). 7. This court has, also, perused the galaxies of the affidavits filed by both sides and have been viewed in the light of the factual panorama, as well as, in the backdrop of the relevant proposition of case law and the statutory law. Let it be mentioned at this stage, first, that Rule 101 (a) of the Rules, upon consideration of the provision thereof, makes no any doubt that a resignee cannot claim pensionary benefits, probably, because on resignation he has severed the relationship of master and employee unilaterally and voluntarily. Therefore, the respondent-authorities have, also, placed reliance on this provision. 8. It is in this context, it would become relevant and material to quote the provision of Rule 101(a) with profit for consideration of the main issue in focus: 101(a) : Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service. 9. Clause (a) of Rule 101 deals with resignation and dismissal and resultant ramification and impact on the right of pension of the employee. It leaves in no manner of doubt that a person, who has tendered his resignation voluntarily and unilaterally and that has been accepted by the authority, cannot claim pensionary benefits on account of entailment forfeiture of past service as an outcome of the resignation as statutorily severance is affected in relationship of the master and servant. 10. We need not go into about object and design of the pensionary benefits entitlement at this stage in view of the aforesaid clear provision on which the respondent-authorities have relied on. 11. Now, it will bring into focus the provision of Rule 135 of the Rules, which provides that the Government Servants mentioned in rule 5 are entitled, on their resignation being accepted, to retiring pension after completing qualifying service of not less than 25 years. It is in this context, it becomes expedient to have a close look into the provision of rule 5, which reads here-in-under: 135. It is in this context, it becomes expedient to have a close look into the provision of rule 5, which reads here-in-under: 135. Government servants mentioned in rule 5 are entitled, on their resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years. 12. It is very clear that the provisions of Rules 86, 135, 146 & 147 would apply only to Government Servants (other than military officers) appointed substantively to services or posts specified in the schedule and the schedule is mentioned. 13. It, therefore, becomes evident on the plain interpretation and reading that Rule 135 of the Rules will be attracted only where it pertains to the persons or schedule enumerated and highlighted in Rule 5 of the Rules, so is not the case here in the light of the factual profile. 14. Therefore, it becomes explicit and unambiguous that the relevant proposition of law with regard to the entitlement of pension has been statutorily prescribed in Rule 101 (a) of the Rules. According to the general principle of law of resignation, a person, who has severed relationship on his own on the ground stated, would not be entitled to pensionary benefits. 15. The contention that since the claim came to be made after 18 years, it is hit by doctrine of latches, delay, acquiescence etc., is not required to be gone into as the statutory provisions are already there. The court would prefer to go on for substantive justice, rather than, technical aspect. Undoubtedly, there has been delay and it has not been explained as to why the action could be taken after a long spell of 18 years. But this Court does not think it appropriate at this juncture to go meticulously into that aspect. 16. There is a reliance placed on the Governments Order, which is mentioned in one of the important Orders issued by the Government. The Order no. 18 prescribes only as to what should be the immediate amount to be paid to the person entitled to pension. The great emphasis is laid on the said order by the party (in person) that there is a mention of minimum pension for qualifying service of 10 years and as he has completed more than 10 years, he is entitled to pension. 17. The great emphasis is laid on the said order by the party (in person) that there is a mention of minimum pension for qualifying service of 10 years and as he has completed more than 10 years, he is entitled to pension. 17. Such a submission, undoubtedly, will be attractive and alluring but not acceptable and recognizable when one goes into the detailed facts and relevant statutory provision. It does not deal with the situation as we have in the present case about the resignation. Secondly, it does not apply to the facts of the present case. Minimum pension for a qualifying service, even if one has completed 10 years of service, can be fixed by the Government and the entitlement can be conferred, which does not, in any way, refer or involve a case of resignation by an employee voluntarily. 18. There are many types of pension, say for an example, invalid pension, for which, probably, Order 18 could be pressed into service but it cannot be allowed to be pressed into in so far as the interpretation of the entire relevant provision of Pension Rules is concerned in the backdrop of the factual aspect of the case on hand. Therefore, the party (in person) is unable to any- capital out of it. That contention has to be rejected and that has been, rightly, rejected by the two authorities. The party (in person) has, also, placed reliance on the aforesaid 3 decisions. 19. So far decision no. 1 of the Hon ble Apex Court relied on by the petitioner in Lt. Col. P.S. Bhargava (supra) is concerned, it pertain to a case of resignation by an Armed Officer. In an Armed Officer case the pension regulations are altogether different. Therefore, upon due consideration of the proposition of law expounded in that case, we are of the clear opinion that it does not apply to the facts of the present case. 20. So far decision no.2 relied on by the petitioner in Tapan Kumar Chatterjee (supra) is concerned, it does not deal with the situation as we have on hand in this case. Again, it may be mentioned that it relates to the interpretation of Article 12(1) of statute relating to general condition of service of the Universities and it does not deal with a case of Government employee for whom special provisions have been incorporated, as observed here-in-above. 21. Again, it may be mentioned that it relates to the interpretation of Article 12(1) of statute relating to general condition of service of the Universities and it does not deal with a case of Government employee for whom special provisions have been incorporated, as observed here-in-above. 21. So far decision no. 3 relied on by the petitioner in Dr. (Smt.) Shahida Hasan (supra) is concerned, we are of the clear opinion that the law laid down in the said case is not a good law in the light of the provisions of Rule 101(a) read with Rule 135 of Rules, 1950, with due respect. 22. In the result, upon consideration of the entire chronological events leading to the event of resignation of the petitioner (in person) - employee from the Judicial Service, as well as, the relevant factual profile coupled with the relevant statutory provisions under Rule 101(a) read with Rule 135 of the Rules and the general law of resignation and entitlement of pension, we are left with no alternative option but to raise our hands in helplessness and to dismiss the petition at the very outset after hearing both the parties. Since the petitioner (in person) is, now, a Practicing Advocate and had been in Judicial Service, we do not think it appropriate to saddle him with cost. 21 Accordingly, this petition shall stand dismissed without any order as to cost. Rule is discharged.