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2015 DIGILAW 1420 (RAJ)

Sanwar Mal Sharma v. State of Rajasthan

2015-07-29

ALOK SHARMA

body2015
JUDGMENT : BY THE COURT Under challenge in this petition is the order dated 27.02.2015 whereby the Joint Secretary and Director, Information and Public Relation Department, Rajasthan, Jaipur (hereinafter “JS and D, IPRD”) cancelled the earlier order dated 23.09.2014 whereby the petitioner's services with the Rajasthan State Ganganagar Sugar Mills Ltd. (hereinafter “RSGSM”) for the period 07.07.1982 to 29.07.1989 had been reckoned for computing the petitioner’s qualifying service for ascertainment of his pension following his retirement as a Stenographer (English) with the JS and D, IPRD. The undisputed facts of the case are that the petitioner was initially appointed on 23.06.1982 with RSGSM, a Government of Rajasthan undertaking, by selection through a regular process. He was confirmed on the said post on 12.07.1984. During the period of the petitioner's engagement with RSGSM, the Rajasthan Public Service Commission (hereinafter “RPSC”) advertised for recruitment of Stenographer (English) with the State Government. The petitioner states to have sought no objection from his erstwhile employer at the relevant time i.e. RSGSM and applied for the post advertised. Whereupon he was selected by the RPSC and on its recommendation appointed by the State Government vide letter dated 18.07.1989. Subsequent to his appointment with the Director, Information and Public Relation Department, Government of Rajasthan, Jaipur, the petitioner states to have submitted representations dated 28.11.1990, 31.05.1991 and 22.11.1997 praying that RSGSM being a State Government undertaking, his services therewith for the period 07.07.1982 to 29.07.1989 should be reckoned as qualifying service for the purpose of computation of his pension and be so recorded in his service book entitling him to benefit thereof. The representations were of no avail. The petitioner then, after a gap of about 17 years again approached the Principal Secretary, Information and Public Relation Department, Jaipur vide another representation dated 08.07.2014. Apparently in response thereto, vide letter dated 17.09.2014, the Additional Director (Admn.), Information and Public Relation Department, Jaipur required the petitioner to deposit a sum of Rs.8,509/- with the Department being the amount of CPF contribution (with interest) availed by him from RSGSM, at the time of his separation therefrom prior to his appointment on the post of Stenographer (English) with the Directorate on 18.07.1989. The petitioner complied with the said directive. Vide order dated 23.09.2014, the JS and D, IPRD allowed the petitioner’s services with RSGSM between 07.07.1982 to 29.07.1989 to be reckoned as qualifying service with the State Government. The petitioner complied with the said directive. Vide order dated 23.09.2014, the JS and D, IPRD allowed the petitioner’s services with RSGSM between 07.07.1982 to 29.07.1989 to be reckoned as qualifying service with the State Government. Flush with having his services with RSGSM for the period 07.07.1982 to 29.07.1989 also reckoned as being service of the State Government, the petitioner with unabated ambition proceeded to now submit representations dated 17.11.2014 and 05.01.2015 to the Director, Information and Public Relation Department, Jaipur praying that he be given the benefit of selection scale on completion of 9, 18 & 27 respective years of service, reckoning his service with the Government as commencing 07.07.1982. The Department on having received the representations dated 17.11.2014 and 05.01.2015 referred above, referred the matter for the approval of the Department of Finance. The Department of Finance however on consideration of the matter took the view and conveyed it to Director, Information and Public Relation Department, Jaipur vide its I.D. No.211500073 dated 10.02.2015 that what of the benefit of selection scale on the completion of 9, 18 & 27 years with reference to the petitioner’s service with the Government having been reckoned to have commenced on 07.07.1982, when he was first engaged by RSGSM, the petitioner was not at all entitled to the benefit of service between 07.07.1982 to 29.07.1989 rendered with RSGSM to be counted towards qualifying service with the State of Rajasthan following his appointment dated 18.07.1989 as Stenographer (English) after having been selected by RPSC. Faced with the view of the Department of Finance as conveyed under I.D. No.211500073 dated 10.02.2015, by the impugned order dated 27.02.2015 the earlier order 23.09.2014 giving the petitioner benefit of his employment with RSGSM between 07.07.1982 to 29.07.1989, as qualifying service for the purpose of grant of pension, has been cancelled. Hence this petition before this Court. Mr. Ashok Gaur, Sr. Advocate appearing with Mr. Shobhit Tiwari, for the petitioner has submitted that while engaged with the RSGSM on permanent basis after confirmation, following his initial appointment dated 23.06.1982 through due process, the petitioner applied for appointment as Stenographer (English) with the State Government pursuant to the RPSC advertisement therefor through proper channel. He was thereon selected by RPSC and appointed by the State Government in the Department of Information and Public Relation on intimation to RSGSM. He was thereon selected by RPSC and appointed by the State Government in the Department of Information and Public Relation on intimation to RSGSM. The petitioner only tendered a technical resignation for separation with his previous employer on 29.07.1989 and joined the services with the State Government on the same day. It has been submitted that subsequently pursuant to the letter dated 17.09.2014 under the hand of the Additional Director (Admn.), Information and Public Relation Department, Jaipur, the petitioner even deposited the amount of CPF obtained by him at the time of his resignation from RSGSM for the duration of his service therewith along with interest with the State Government. Counsel emphatically submitted that the case of the petitioner is covered by Section 1 to Appendix IX of the Rajasthan Civil Services Pension Rules, 1996 (hereinafter “the Rules of 1996”). Referring to Section 1 aforesaid, counsel for the petitioner submitted that it deals with the question of granting terminal benefits to the Rajasthan Government servants going over to the State enterprises / Autonomous Bodies and vice versa on permanent transfer and immediate absorption basis. Sr. Counsel has emphasized the word “vice versa” to contend that where an employee of the Public Sector undertaking wholly owned and controlled by the State Government is appointed in State service, it would of necessity tantamount to and/or deemed to be permanent transfer and immediate absorption of such employee with the Government of Rajasthan—the hiatus of resignation between the earlier employment and subsequent immediate employment could only be technical and of not event. It has been submitted that the petitioner only technically resigned from RSGSM on 29.07.1989 and joined in State service on the same day evidencing actual continuity between the two services. Sr. Counsel further submitted that it was in the fact situation detailed hereinabove and on a purposive and just interpretation of Appendix IX to the Rules of 1996 that the Joint Secretary and Director, Information and Public Department, Jaipur had vide his letter dated 23.09.2014 directed that the petitioner’s services on permanent basis with RSGSM for the period 07.07.1982 to 29.07.1989 would be reckoned for being entered into his service book and for determination of qualifying service on his retirement from the Government of Rajasthan in the Department of Information and Public Relation. Sr. Sr. Counsel has emphatically submitted that the view of the Finance Department leading to the passing of the impugned order dated 27.02.2015 is not only unsustainable on a just and fair reading of Appendix IX to the Rules of 1996, but also discriminatory. On the issue of discrimination, Sr. Counsel has submitted that the respondents themselves granted benefit of past service rendered in the Sports Council of Rajasthan, on the appointment of one Shri N.K. Mishra with the Government of Rajasthan in the Department of Information and Public Relation. The order dated 25.11.2008 granting the said benefit for service/employment with the Sports Council of Rajasthan for the purpose of computation of qualifying service for the purpose of pension in the State of Rajasthan has been referred to. In support of his contention, Sr. Counsel has relied upon the judgment of this Court in the cases of Rakesh Gupta Vs. Rajasthan Housing Board, SBCWP No.829/1998, decided on 26.03.2010 as also to the judgments rendered by this Court in the cases of Nawal Kishore Pareek Vs. State of Rajasthan & Ors, SBCWP No.2945/2004, decided on 12.02.2014, H.N. Mathur Vs. State & Ors., SBCWP No.4996/1995, decided on 12.01.2010 and Narendra Prakash Tuli Vs. The Additional Chief Engineer Rajasthan RPS & JS Dams, Kota & Ors., SBCWP No.959/2005, decided on 24.11.2010. Mr. S.K. Gupta and Mr. Shyam Arya, both AAG have however submitted that the writ petition is completely misdirected founded neither on any statutory Rule, nor a binding precedent rendered on similar facts but is merely speculative and grasping in nature. It has been submitted that even though the petitioner was admittedly employed with RSGSM between 07.07.1982 to 29.07.1989, for one, there is nothing on record to establish that the application of the petitioner to RPSC following its advertisement for recruitment to the post of Stenographer (English) had been routed through his earlier employer. It was submitted that there was/is no connection between the petitioner's previous employment with RSGSM and appointment to the post of Stenographer (English) in the State of Rajasthan. No condition of advertisement has been adverted to, to establish such a connection. It was submitted that there was/is no connection between the petitioner's previous employment with RSGSM and appointment to the post of Stenographer (English) in the State of Rajasthan. No condition of advertisement has been adverted to, to establish such a connection. No representation was made in RPSC advertisement that in the event State owned public sector employees applying and selected, on their joining the post of Stenographer (English) with the State of Rajasthan, their previous service with State P.S.U.'s such as RSGSM would be reckoned for the purpose of their qualifying service with the State of Rajasthan and entitle him to continuity for any purpose whatsoever i.e. fixation, seniority, pension etc. In the circumstances, learned AAG pointed out that on the straight facts of the case, the appointment of the petitioner as a Stenographer (English) in the service of State of Rajasthan following selection by RPSC was in the nature of a fresh appointment by direct recruitment. The petitioner was not appointed by way of a permanent transfer or immediate absorption basis in the service of the State Government. His qualifying service for the purpose of pension thus will per force have to be reckoned on the basis of his appointment dated 18.07.1989. The learned AAG also submitted that while placing reliance to Section 1 to Appendix IX of the Rules of 1996, the petitioner conveniently overlooks clause 18 thereof which deals with permanent transfer of employee of the State Public Sector Undertaking and Autonomous Bodies to the Rajasthan Government. It has been submitted that the petitioner being a direct recruitee with the State of Rajasthan in terms detailed hereinabove, no question of the petitioner having been appointed with the State on the basis of permanent transfer or absorption can arise. It has been submitted that Clause 18 of Section 1 to Appendix IX appended to the Rules of 1996 even otherwise provides that “an employee of State Enterprise/Autonomous Body having pensionary scheme (underlining mine) if joins Government service on immediate absorption basis, the relevant provisions contained in para 1 to 17 above shall also be applicable on reciprocal basis in respect of employee of those State Public Enterprise/Autonomous Body who mutually agree for the same”. (underlining mine). (underlining mine). Counsel submitted that the petitioner’s case set up before this Court is in a vacuum without fulfilling (emphasis mine) any of the several precondition of clause 18 of Section 1 to Appendix IX appended to the Rules of 1996 such as (i) the induction into the service of State of Rajasthan on the basis of immediate absorption as no agreement was entered into between the State and the petitioner through proper channel or otherwise at all for the purpose. (ii) Section 1 to Appendix IX appended to Rules of 1996 was to apply, only to an Autonomous Body / State PSU having a subsisting pensionary scheme. No averment has been made by the petitioner and it is a fact that there was no pensionary scheme obtaining in the RSGSM at least at the relevant time when the petitioner applied for recruitment by RPSC for appointment with State of Rajasthan and was then appointed as Stenographer (English). (iii) the petitioner was appointment on 18.07.1989 as a direct recruitee of the State of Rajasthan. It was neither a permanent transfer, nor an absorption as understood in service jurisprudence. Counsel submitted that the writ petition, in the circumstances, is wholly without force and liable to be rejected. Heard. Considered. The contention of the Sr. Counsel appearing for the petitioner based on Appendix IX to Rules of 1996 is quite untenable. Section 1 to Appendix IX to Rules of 1996 relates to the case of permanent transfer of servants on immediate absorption basis to the State Enterprises/Autonomous Bodies and vice versa. However, clause 18 to Section 1 of Appendix IX aforesaid makes the provisions relating to Government servant, Government of Rajasthan, joining Public Enterprises/Autonomous body applicable vise versa only subject to the precondition of a pre existing pension scheme in the Public Sector undertaking/autonomous body in issue. It also mandates that the applicability of Section 1 to Appendix IX appended to the Rules of 1996 would be where the engagement by the State of Rajasthan of employees of State Enterprises/Autonomous Body is on immediate absorption basis not by way of direct recruitment through RPSC. I am of the considered view that the petitioner satisfies neither of two pre-conditions of Clause 18 of Section 1 to Appendix IX annexed to the Rules of 1996. I am of the considered view that the petitioner satisfies neither of two pre-conditions of Clause 18 of Section 1 to Appendix IX annexed to the Rules of 1996. Clause 18 further speaks of para 1 to 17 of Section 1 to Appendix IX of the Rules of 1996 being applicable only “in respect of employees of those State Public Enterprise/Autonomous Body who mutually agree for the same” (underlining mine). The mutual agreement aforesaid would require to be evidenced by a writing in the form of a document or series of correspondence. Nothing of this kind obtains on record. Contrarily from the facts on record, more particularly the petitioner's representations dated 28.11.1990, 31.05.1991, 22.11.1997 and even 08.07.2014 subsequent to his appointment dated 18.07.1989 with the State Government, would indicate that the petitioner was seeking a post facto direction for his services with RSGSM being recorded in his service book and having it reckoned inter alia for computing his qualifying service with the State. In my considered view, the petitioner has thus been unable to make out any case in having his previous service with RSGSM reckoned for being entered in his service book and for being treated as qualifying service with the State Government. I also do not find any force in the contention of the counsel for the petitioner, based on a plea of discrimination or that the petitioner is entitled to have his permanent service with RSGSM reckoned for qualifying service with the State Government following his appointment on 18.07.1989 for the purpose of computing his pension on parity with the case of Mr. N.K. Mishra, whose services with the Rajasthan Sports Council (an autonomous authority) were reckoned for his qualifying service with the State Government under order dated 25.11.2008. The reason is simple. The concept of negative equality has been long and consistently debunked by the Hon’ble Supreme Court as also by this Court. Equality, it is trite that, is a positive concept. N.K. Mishra, whose services with the Rajasthan Sports Council (an autonomous authority) were reckoned for his qualifying service with the State Government under order dated 25.11.2008. The reason is simple. The concept of negative equality has been long and consistently debunked by the Hon’ble Supreme Court as also by this Court. Equality, it is trite that, is a positive concept. Aside of that, an alleged illegality perpetuated by the State Government if at all in the case of N.K. Mishra, (full facts of which are not before this Court and in respect of which there is no occasion for this Court to comment) cannot justify the extraordinary equitable jurisdiction of this Court under Article 227 of the Constitution of India being invoked for its duplication in the face of obtaining statutory provisions under the Rules of 1996. Both right to pension and the manner of its computation are not fundamental rights and it has in fact not been so argued. Such rights are statutory rights. A claim for them has to be statutorily buttressed. The petitioner having been appointed to the services of the State government on 18.07.1989, computation of his qualifying service for purpose of pension as of necessity relates to the Rules of 1996. As held hereinabove the effort of the petitioner to resort to section 1 to Appendix IX appended to the Rule of 1996 to prop up his purported right agitated in the petition is completely misdirected. I also find that there is no case made out on the contravention of principles of natural justice in impugning the order dated 27.02.2015. It is indeed true that the order dated 23.09.2014 passed by the JS and D, IPRD to the petitioner's benefit has been withdrawn by the subsequent impugned order dated 27.02.2015 without an opportunity of hearing. However, it is no more res integra that the principles of natural justice are not straight jacket, nor to be resorted to as an idle formality. However, it is no more res integra that the principles of natural justice are not straight jacket, nor to be resorted to as an idle formality. In the facts obtaining, I am of the view that the petitioner being allowed an opportunity of hearing would have been only an idle formality in the face of the clarity under the Rules of 1996 with regard to the manner of computation of pension and it was inconceivable that the petitioner could set up any plausible case to the contrary and claim resort to Rule 1—17 of Section 1 of Appendix IX of the Pension Rules, 1996 to the exclusion of Rule 18 thereof. The judgments relied upon by the Sr. counsel for the petitioner in support of the writ petition are wholly distinguishable and not one of the aforesaid judgments referred to by Sr. Counsel relates on the fact situation as obtaining in the present case. They are therefore of no avail to the petitioner. Consequently I find no force in the petition. It is meritless. Dismissed.