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2013 DIGILAW 1183 (MP)

R. B. Dubey v. State of M. P.

2013-09-30

K.K.TRIVEDI

body2013
Judgment: K.K. Trivedi, J. 1. The petitioner being aggrieved by the orders dated 30-10-2012 and 17-4-2013 has approached this Court by way of filing this writ petition under Article 226 of the Constitution of India. It is put forth by the petitioner that he was initially appointed on ad-hoc basis w.e.f. 1-8-1980 to 18-9-1986 on the post of Assistant Professor in Law. Thereafter he was regularly appointed on the said post. By an application dated 27-1-2003, the petitioner sought voluntary retirement under the provisions of Rule 41(1)(a) of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as 1976 Rules'). Such a notice of the petitioner was accepted counting the period of ad-hoc services of the petitioner and he was allowed to voluntary retire by order dated 16-7-2003, w.e.f. 10-5-2003. However, while fixing the retiral benefits, ad-hoc period of the services of the petitioner was excluded and an order was issued. This order was called in question in WP No. 3549/2004, which was finally disposed of vide order dated 28-2-2011. The respondents were directed to reconsider the matter taking into consideration the period of ad-hoc services of the petitioner and to release the retiral benefits. The respondents preferred a writ appeal against the said order and with the liberty of the Writ Appellate Court, they were required to pass the appropriate order. However, in complete violation of their own stand and completely ignoring the law and the rules, treating the period of 16 years 7 months 21 days service as qualifying service for the purposes of voluntary retirement, the impugned order dated 30-10-2012 is passed. For the said reasons, not only the order impugned was liable to be quashed, but since only for the aforesaid period of 16 years 7 months 21 days the pension is being sanctioned to the petitioner by the impugned order dated 17-4-2013, both the orders are bad in law. In fact, if this aspect was considered by the respondents that the voluntary retirement of the petitioner was not to be accepted at all because of the fact that he had not completed the qualifying services, they should have rejected the notice of voluntary retirement of the petitioner. It is contended that the issue in this respect has already been looked into by this Court and since such an act is held to be invalid, the petitioner is entitled to the relief claimed. It is contended that the issue in this respect has already been looked into by this Court and since such an act is held to be invalid, the petitioner is entitled to the relief claimed. On the basis of these allegations, the petitioner has claimed the following relief: "(i) Hon'ble Court be pleased to quash the impugned order dated 30-10-2012 and the consequential order dated 17-4-2013. (ii) Hon'ble Court be pleased to direct the respondent to reinstate the petitioner to the post of Assistant Professor with all consequential benefits for all purposes. (iii) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition." By filing a return, the respondents have opposed the claim of the petitioner and have contended that in the writ appeal filed by the respondents against the order of this Court passed in earlier writ petition of the petitioner a liberty was granted by the Court to reconsider the issue. The only rider put was that no detrimental order to the interest of the petitioner should be issued. After examining the entire facts, it was found by the respondents that the ad-hoc service period of the petitioner was not to be counted for the purpose of counting qualifying service for the purpose of permitting voluntary retirement of the petitioner. This particular aspect was taken note of that since now the petitioner has voluntary retired, though on account of a mistake committed by the respondents-State, therefore, the case of the petitioner was to be treated as a special case and for the said purpose it was decided to treat the regular services of the petitioner as qualifying service only for the purpose of granting permission to the petitioner to voluntary retire. This has been done as a special case and therefore, if such a relaxation is granted by the State, it cannot be said that any act done by the respondents or any order passed by them is violative of any statutory rules. It is put forth that such power of relaxation is always available with the State Government as it is the competent authority to make rules and, therefore, the order passed by the respondents are just and proper. It is put forth that such power of relaxation is always available with the State Government as it is the competent authority to make rules and, therefore, the order passed by the respondents are just and proper. It is put forth that on account of petitioner's own application, since the voluntary retirement was granted to him, he cannot be permitted to withdraw the said application after such a long time and since the voluntary retirement already granted to the petitioner is required to be regularized, rightly the orders have been issued by the respondents. It is contended that the petition being misconceived and based on misleading facts, is liable to be dismissed. The rejoinder is nothing but an explanation of whatever stated by the petitioner in his writ petition. The only attempt made by the petitioner is to shift the burden on the respondents for the purpose of verification of the facts whether the voluntary retirement of the petitioner could have been allowed or not. 2. Heard learned counsel for the parties at length and perused the record. 3. To decide the controversy involved, the provisions of voluntary retirement, as prescribed in Rule 42(1)(a) of the 1976 Rules aforesaid, are required to be examined. Not only this, the definition clauses for the particular provision are to be taken into consideration. Rule 42 of the Rules aforesaid is reproduced for ready reference: "42. 3. To decide the controversy involved, the provisions of voluntary retirement, as prescribed in Rule 42(1)(a) of the 1976 Rules aforesaid, are required to be examined. Not only this, the definition clauses for the particular provision are to be taken into consideration. Rule 42 of the Rules aforesaid is reproduced for ready reference: "42. Retirement on completion of 20/25 years qualifying service.--(1)(a)--Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowances for the period of one month or for the period by which the notice actually given by him falls short of one month: Provided that this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following departments, until they have not completed 25 years qualifying service:-- (a) Public Health and Family Welfare Department (Medical, Paramedical and Technical Staff); (b) Medical Education Department (Teaching Staff, Paramedical and Technical staff): Provided further that such Government servant shall not be allowed to retire from service without prior permission in writing of the appointing authority under the following circumstances:-- (i) Where the Government servant is under suspension; (ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government servant; Provided also that if the appointing authority has not taken the decision under clause (ii) of the second proviso, within six months from the date of notice given by the Government servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of six months. (b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him three months notice in Form 29: Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months, as the case may be. NOTE-1.--Before a Government servant service notice of retirement under clause (a) above, he should satisfy himself by means of a reference to the appointing authority that he has in fact, completed 20 or 25 years qualifying service, as the case may be, for pension. Similarly, the appointing authority, while giving notice of retirement to a Government servant under clause (b), above, should also satisfy itself, that the Government servant has, in fact completed 20 years qualifying service or he attains the age of 50 years. NOTE-2.--The period of notice of one month or three months as the case may be, shall be reckoned from the date on which it is signed and put in communication under registered post. Where the notice is served personally, the period shall be reckoned from the date of receipt thereof. NOTE-3.--The Government servant, on submission of an application shall be granted such leave during the period of notice to which he is entitled according to rules: NOTE-4.--The payment of pension for the period for which pay and allowances have been paid to a Government Servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules. (2) A Government servant who has elected to retire under clause (a) of sub-rule (1) and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him: Provided that the request for withdrawal shall be prior to the intended date of his retirement. (3) Where the notice of retirement has been served by appointing authority on the Government servant, it may be withdrawn, if so desired for adequate reasons, provided that the Government servant concerned is agreeable." 4. Much emphasis is placed on the word 'qualifying service'. The qualifying service is defined in Rule 3(p) of the 1976 Rules which reads thus:-- "3(p) "Qualifying service" means the period between the date of joining pensionable service under the State Government and retirement therefrom which shall be taken into account for purpose of the pension and gratuity admissible under these rules and includes the period which qualifies under any other order or rule for the time being in force." A plain and simple reading of the definition will make it clear that there is no distinction in the nature of appointment whether it is ad-hoc, temporary or permanent for the purposes of counting the same for fixation of pension. This Court in the case of Chandrakanta w/o Manaklalji Sharma v. State of M.P. and others, 2007(2) MPLJ 339 had categorically held that the effective point of start of qualifying service is the day of joining on the post on which the employee is first appointed either substantively, officiating or temporary basis. It is not the case that ad-hoc appointment of the petitioner was not something which was not authorizing the petitioner to officiate on the post of Assistant Professor which post is admittedly a pensionable post. Even on ad-hoc basis he had officiated on the said post and therefore that period was required to be counted. Rule 12 of the Rules also prescribes the commencement of qualifying service, interpretation of which has been done in the case of Chandrakanta (supra) and it has been held that from the day the Government servant joins on any pensionable post, the qualifying service starts from the date of joining. This being so, it is required to be seen whether on the basis of liberty granted by the Division Bench of this Court, the case of the petitioner was properly examined or not. 5. In the earlier writ petition, when the order was passed by this Court, the aspects were mentioned and it was recorded by this Court that the ad-hoc services of the petitioner were to be counted for the purposes of granting him permission to voluntary retire from service. 5. In the earlier writ petition, when the order was passed by this Court, the aspects were mentioned and it was recorded by this Court that the ad-hoc services of the petitioner were to be counted for the purposes of granting him permission to voluntary retire from service. For the purposes, the order passed in W.P. No. 3549/2004 on 28-2-2011 is required to be examined. In the operative part, after taking note of the submissions made by the learned counsel for the parties, it was specifically directed by this Court to consider the case of the petitioner in the following manner:-- "In the matter of State of West Bengal and ors. v. Dr. Subhash Chandra Partihar, 2003 SC-SLR 817 this aspect of the case has been taken into consideration by the Hon'ble Apex Court. Otherwise also while benefit of voluntary retirement scheme was given to the petitioner the period of service between 1-8-1980 to 18-9-1986 was taken into consideration as the services were rendered by the petitioner. If this period would not have been taken into consideration then petitioner was not entitled for the benefit of voluntary retirement scheme. After taking into consideration all the facts and circumstances of this case the petition filed by the petitioner is disposed of with a short direction that the competent authority shall release retiral benefit after taking into consideration the services rendered by the petitioner on ad hoc basis within a period of two months. With the aforesaid, petition stands disposed of." 6. This was the order which was challenged in W.A. No. 999/2011 by the respondents. The contentions raised by the parties were considered by the Division Bench and the Division Bench of this Court had granted the liberty by its order dated 3-9-2012 in the following manner:-- "In view of the aforesaid contentions, we grant limited liberty to the appellants to re-examine the matter and in case it is found that the application of the respondent for voluntary retirement under Rule 42(1)(a) was premature then to pass an appropriate order but not prejudicial to the interest of the respondent. With the aforesaid liberty this appeal is finally disposed of. The appellants shall take a final decision in this regard within a period of 90 days from today failing which the appellant shall give effect to the order passed by the Single Bench, as passed in W.P. No. 3549/2004 dated 28-2-2011. With the aforesaid liberty this appeal is finally disposed of. The appellants shall take a final decision in this regard within a period of 90 days from today failing which the appellant shall give effect to the order passed by the Single Bench, as passed in W.P. No. 3549/2004 dated 28-2-2011. No order as to cost." 7. A perusal of the liberty granted by this Court and the specific order passed by the Division Bench make it clear that the ultimate direction was to give effect to the order passed by the learned Single Judge in the writ petition in case the matter is not decided within a period of 90 days, from the date of order. Admittedly matter was not decided within the aforesaid period therefore there was no question of treating, that the ad-hoc period of service rendered by the petitioner was not to be counted for the purpose of authorizing voluntary retirement. The recourse to Rule 15 of the Rules, as has been taken by the respondents was not available. The provisions of Rule 15 which have been quoted by the respondents are not at all attracted. It appears that something which was not provided under the said Rules was taken note of. Even there was certain breaks in service that were required to be condoned and not to ignore the entire period of service. The qualifying service of me petitioner was to be counted and calculated from the date of his ad-hoc appointment. There was no question of granting any relaxation in the matter and treating the period of 16 years 7 months and 21 days as qualifying service for the purpose of granting voluntary retirement to the petitioner. This was not the order passed by this Court in the writ petition of the petitioner and therefore the order dated 30-10-2012 runs contrary to the order passed by this Court. If the respondents were not willing to comply with the said part of the order, they were not required to obtain liberty from the Division Bench of this Court in their writ appeal. If they were not satisfied with the liberty granted or the directions issued by the Division Bench for giving effect to the order passed by the Single Bench in writ petition against the respondents, they were required to approach the Apex Court for seeking an order in that respect. If they were not satisfied with the liberty granted or the directions issued by the Division Bench for giving effect to the order passed by the Single Bench in writ petition against the respondents, they were required to approach the Apex Court for seeking an order in that respect. The Division Bench has not upset the order passed by the learned Single Judge on the other hand has endorsed the same while granting liberty to the respondents, who were appellants in the said appeal and has categorically directed them to keep in mind the order passed by the learned Single Judge. Therefore, the order impugned dated 30-10-2012 (Annexure P-5) is not sustainable in the eyes of law. The liberty granted by the Division Bench is not to be interpreted in the manner as has been interpreted by the respondents and therefore the order impugned is liable to be quashed. Consequently, the order passed for grant of pension to the petitioner only for such period which has been treated as qualifying period as a special case is also not sustainable. 8-9. Learned counsel for the petitioner has placed reliance in case of Premlata Goutam v. State of M.P., W.P. No. 14155/2003 (OA No. 2644/1999) decided on 5-9-2012 and has contended that in fact if the application for voluntary retirement was itself not maintainable it was not to be allowed at all. It is contended that ad-hoc period was not counted and therefore such a claim of the petitioner in the said case was considered and it was directed that the said petitioner be reinstated in service with 40% backwages. It is contended that petitioner would also be entitled to reinstatement in service and would be entitled to payment of salary for the period of service after reinstatement. There is distinction between the two. Here in the case in hand the case of the petitioner is treated to be a special case by the respondents-State while granting him permission to voluntary retire whereas in the case of Premlata Goutam (supra) this was not the situation. Even otherwise, the factual aspect in the present case is totally different as the consideration as directed by this Court in the earlier writ petition of the petitioner is based on different aspects and not as in the case of Premlata Goutam (supra). Even otherwise, the factual aspect in the present case is totally different as the consideration as directed by this Court in the earlier writ petition of the petitioner is based on different aspects and not as in the case of Premlata Goutam (supra). Yet another aspect is that though certain provisions have been added subsequently by an amendment made in the 1976 Rules w.e.f. 7-4-2006, but similar would be the provisions for seeking the addition of period to the qualifying service for the purpose of voluntary retirement. By the aforesaid provisions, it is prescribed by the State Government that maximum a period of 5 years of service would be added for the computation of pension. If at all, it was the case that any period fall short for granting permission to voluntary retirement to the petitioner, this mode could have been adopted by the respondents as a special case rather than reducing the period of qualifying service, which naturally caused a financial loss to the petitioner. Therefore, it would be proper for the respondents to take note of such a provision and evolve a policy to extend the period of qualifying service of the petitioner, if at all they come to the conclusion that ad-hoc period of service of the petitioner is not to be counted for the purpose of computing the qualifying service. At any rate reduction of the period of qualifying service was not permissible in view of the specific finding recorded by this Court in the earlier writ petition of the petitioner and in writ appeal filed by the respondents. 10. Consequently the impugned order dated 30-10-2012 (Annexure P-5) and order dated 17-4-2013 are hereby quashed. Let a final decision be taken by the respondents in the matter of fixation of retiral claims of the petitioner in terms of the directions already issued, as has been quoted hereinabove in light of the observations made in this order within a period of three months from the date of receipt of certified copy of the order passed today. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.