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2018 DIGILAW 2217 (HP)

Bhisham Singh v. Union of India

2018-12-17

SURESHWAR THAKUR

body2018
JUDGMENT : SURESHWAR THAKUR, J. 1. The petitioner seeks quashing, of, Annexure P-6, where through, the petitioner's claim for meteing qua him, the, benefit of Rule 9(3) of CCS Pension Rule-1972, stood rejected, on anvil, of his disability being assessed, only, in a statutorily ineligible per centum, of, the apposite disability, inasmuch as, it being only upto 40%. The petitioner also prays, that, the pension payment order, comprised in Annexure P-7 being also ordered to be modified for bringing it, in consonance therewith, and, also espouses qua affirmative findings, being pronounced, upon, the invalidity of Annexure P-6. 2. The entire bedrock of the claim of the petitioner, and, of the respondents' claim, qua validating or invalidating, the, afore annexure (i) is grooved in a judgment of this Court rendered, in CWP No 100 of 2000, titled as Bhisham Singh vs. Union of India and another, decided, on 28th September, 2006. In the afore writ petition, this Court had quashed the order of discharge, of the petitioner, hence from, service, (ii) order whereof was rested upon the recommendations, of, the duly constituted Medical Board, hence, recording an opinion, qua, the petitioner being unfit for retention in service, (iii) concomitant sequel thereof being qua the Writ Court hence affording to the petitioner, the, hereinafter extracted reliefs:- “5. As a sequel to the above discussion, writ petition is allowed, impugned discharge order dated 15.5.1997 (Annexure P-12) is quashed and the following directions are issued to the respondents:- 1. The petitioner be treated to have continued in service upto the date when he would have completed 289 years of service, i.e. 3.5.1998, and, be paid salary and all other allowance etc. from 16.5.1997 to the said date. 2. On and with effect from the day next following the date on which the petitioner would have completed 28 years of service, I.e. 4.5.1998, he be treated to have voluntarily retired under the relevant provisions of Civil Services Pension Rules, 1972 and given the benefits of Rule 48-B and pension and retiral benefits be paid to him accordingly, from such date. 3. Arrears of salary, in accordance with direction No.1, and arrears of retiral benefits , in terms of direction No.2 be paid to the petitioner within three months with simple interest at the rate of 9% per annum.” 3. 3. Arrears of salary, in accordance with direction No.1, and arrears of retiral benefits , in terms of direction No.2 be paid to the petitioner within three months with simple interest at the rate of 9% per annum.” 3. An incisive reading of the afore extracted relief, (i) makes a forthright disclosure qua the petitioner, being directed to be treated, to have continued in service, upto, the date when he would have completed 28 years of service, (ii) and, all concomitant therewith benefits being afforded to him, (iii) and, thereafter his being teated to have voluntarily retired from service, under, the relevant provisions of CCS Pension Rules, 1972, (iv) and, his being bestowed the benefits embodied in Rule 48-B, qua pension, and, retiral benefits, hence, being ordered to be accordingly rather disbursed, vis-a-vis, him. 4. The afore rendered pronouncement, made by this Court, in CWP No.100 of 2000, stood assailed by the Union of India, before the Division Bench of this Court, by its preferring, a, LPA, and, in LPA No. 5 of 2007, whereon, the, Division Bench of this Court, declined the espoused relief to the aggrieved. Subsequently, the petitioner instituted CWP No. 3753 of 2009. Upon, the afore CWP No.3753 of 2009, the hereinafter extracted pronouncements hence occur in para 7 thereof:- “7. It is clear from a reading of judgment dated 28.6.2006, which is available on record as Annexure P-1, that this Court had, though set aside the order of discharge, but it was in the context that the petitioner was to be treated to have continued in service up to 3.5.1998, when he would have completed 28 years of service and by addition of 5 years qualifying service, by virtue of Rule 48-B, he would have been entitled to full pension. The order nowhere says that for granting him pension on completion of 28 years actual service, he would not be entitled to disability pension, which is otherwise permissible under CCS (Extra-ordinary) Pension Rules and various orders of the Government of India, issued under the said Rules.” An incisive reading of the afore pronouncement, makes clear emergences, that though this Court, while rendering a decision upon CWP No. 100 of 2000, hence setting aside, the order of discharge pronounced, upon, the petitioner, (a) on the ground of his being declared to be medically unfit, and, also its pronouncing the afore extracted relief qua him, yet, a peremptory mandate is also recorded therein, that, the afore reliefs earlier pronounced, vis-a-vis, the petitioner, being not per se construable, to, also render dis-entitled, the, petitioner to disability pension. However, in the concluding part, of, the verdict pronounced by this Court on 18th March, 2011, upon, CWP No. 3753 of 2009, this Court, had therein directed, the Union of India to consider, the, case of the petitioner, for grant of extra ordinary disability pension. The afore verdict remained unchalleged, by the aggrieved, hence, it acquires an aura, of, conclusivity. 5. Since, the Union of India did not mete compliance therewith, hence, a contempt petition bearing COPC No. 84 of 2012, was, instituted by the petitioner, and, upon the afore contempt petition, no adversarial order, hence stood pronounced, upon, the purported contemner, (i) and, upon execution petitions No. 9 of 2014, and, 1 of 2014, the Hon'ble Principal Bench, of, this Court, also disposed of the afore execution petition(s), with the hereinafter extracted apt observations, borne in paragraph No.5 thereof:- “5. This Court cannot direct execution which is not in tune with order dated 7th January, 2014, made by the learned Single Judge in COPC No.84 of 2012. Even otherwise, in terms of mandate of para 9 of order, dated 18th March, 2011, made by the Writ Court in CWP No.3753 of 2009, the respondents were to consider the case of the petitioner, which they have done and passed the consideration order, dated 10th March, 2012. It is for the petitioner to seek appropriate remedy, if still aggrieved.” 6. It is for the petitioner to seek appropriate remedy, if still aggrieved.” 6. Even though, the afore extracted paragraph No.5, of, the verdict pronounced by this Court, upon, the afore execution petitions, does unfold, qua, this Court apparently validating, the impugned annexure, yet, the last sentence, occurring in paragraph No.5 “it is for the petitioner to seek appropriate remedy, if still aggrieved”, is, strived to be capitalized by the petitioner, to hence in garb thereof, hence, seek the instant remedy. 7. 7. The learned counsel appearing for the respondents contends, (i) that a reading, of, the second sentence, as, embodied in paragraph 5 of the order rendered, by the Hon'ble Principal Division Bench of this Court, upon, the aforesaid execution petitions, being peremptorily, construable, to, hence validate the impugned annexures, and, the petitioner being precluded, to thereafter, institute the instant petition, before this Court, rather for seeking quashing, of, the impugned order(s), (ii) the afore submission, carries immense strength, given, this Court while rendering, a, pronouncement, upon, CWP No. 3753 of 2009, rather in paragraph No.7 thereof, through, rendering a peremptory mandate, upon, the respondents, to, dehors, the factum of this Court setting aside, the, apposite order of discharge, qua hence, per se, thereafter, the petitioner not being disentitled to seek disbursement qua him, of, disability pension, “if, permissible under the relevant rules, under, the various orders issued from time to time”, and, even though, the afore order acquires conclusivity, for, want of its being challenged, before the Division Bench of this Court, (iii) thereupon, the last sentence, borne in paragraph No.5 of the verdict recorded, upon, the afore execution petitions, is rather not readable, to, generate, a valid cause of action, vis-avis, the petitioner, for hence his through the instant petition, rather casting a challenge, upon, the impugned annexures, (iv) Conspicuously, given the second sentence, occurring in paragraph No.5 of the verdict, recorded by the Division Bench of this Court, upon, afore execution petitions “even otherwise, in terms of the mandate of para 9 of order, dated 18th March, 2011 made by the Writ Court in CWP No.3753 of 2009, the respondents were to consider the case of the petitioner, which they have done and passed the consideration order, dated 10th March, 2012”, thereupon, rendering, the, apposite verdict to be construable, merely, a consideration order, without any trappings, of, meteing, of, peremptory compliance therewith, (v) AND, when, the, afore order(s), stand(s) read in coagulation, with para 7 of the verdict recorded, upon, CWP No. 3753 of 2009, it rather waning, and, subsiding the effect of the purported conclusive, and, binding mandate, as, borne therein. The effect thereof being qua the Union of India being not enjoined to mete peremptory compliance therewith, (vi) given, the afore espousal not apparently falling within the domain, of the germane thereto rules, and, the relevant orders, directed to be borne in mind, by the respondents, under, a verdict pronounced upon CWP No.3753/2009. (vii) Preeminently, also when this court, upon, allowing, the writ petition, would unbefittingly render, a, verdict per incuriam, vis-a-vis, the, relevant statue, and, would also impermissibly permit the relaxing, of, the trite rule(s), qua their being no estoppel against law, and, statutory rules. 8. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed accordingly. All pending applications also stand disposed of.