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Madhya Pradesh High Court · body

2018 DIGILAW 181 (MP)

S. S. Choudhary v. State of M. P.

2018-02-14

SUJOY PAUL

body2018
ORDER 1. This petition filed under Article 226 of the Constitution of India the petitioner has prayed for following relief : “(i) Call entire records pertaining the instant controversy, (ii) To the respondents to stop the recovery against the commutation of pension and further be pleased to direct for refund of the excess amount which has been recovered after repayment of said commutation amount of Rs. 4,69,829/- along with penal rate of interest, (iii) To grant any other relief, which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case, including the cost of the litigation, in favour of the petitioner.” 2. The admitted facts between the parties are that the petitioner applied for commutation of pension w.e.f. 24.8.2002. After completion of 15 years from the said date, the petitioner’s pension should have been restored and commutation should have been stopped, but respondents have not done so and on the contrary started recovering the amount w.e.f. August, 2002. Mr. Navneet Dubey placed reliance on rule 5 of the M.P. Civil Services (Commutation of Pension) Rules, 1996 and contended that as per sub-rule (4) no commutation is permissible after 15 years from the date of retirement or attaning of 70 years of age, which ever is earlier. Mr. Dubey further contended that since petitioner retired on attaining the age of superannuation on 31.3.2000, no commutation was permissible after March, 2015. Hence, the impugned action is called in question whereby the respondents continued the commutation beyond the said period. 3. Mr. Kherdikar submits that as per the additional return, it is clear that the petitioner was required to comply with the mandate of circulars dated 21.4.1986 (Annexure R-1) and dated 31.3.2000 (AnnexureR-2). The petitioner’s pension could have been restored after 15 years provided he filed an application through concerned RAO along with life certificate. In absence of filing such application, no fault can be found in the impugned order. 4. No other point has been pressed by the parties. 5. I have heard the parties at length and pursued the record. 6. In the considered opinion of this Court, this is trite law that statutory rules cannot be supplanted by executive instructions. The respondents have fairly admitted that the Commutation of Pension Rules, 1996 were borrowed by the respondent-organization. 4. No other point has been pressed by the parties. 5. I have heard the parties at length and pursued the record. 6. In the considered opinion of this Court, this is trite law that statutory rules cannot be supplanted by executive instructions. The respondents have fairly admitted that the Commutation of Pension Rules, 1996 were borrowed by the respondent-organization. In the teeth of sub-rule (4) of rule 5 of Rules of 1996, no commutation is permissible after 15 years from the date of retirement. The aforesaid provision begins with the expression “no commutation is permissible”. In the manner said provision is worded, in my view, it is a mandatory provision. In the light of clear statutory mandate ingrained in sub-rule(4) of rule 5, no executive instruction can supersede or supplant the statutory provision. Even if petitioner has not preferred any application for restoration after 15 years as per the circulars (Annexure R-1 and R-2), by operation of rule 5(4) aforesaid, commutation became impermissible. Resultantly, the action of the respondents in continuing the commutation of petitioner’s pension after 15 years from the date of retirement is declared as illegal. The said amount shall be restored in the account of the petitioner within 60 days’ from the date of communication of copy of this order. Petition is allowed. No cost.