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2018 DIGILAW 792 (JK)

Alka Bakshi v. State

2018-10-15

SANJEEV KUMAR

body2018
JUDGMENT : Impugned in this petition is a communication No. Adm/TW/17/589-94 dated 22.02.2017 issued by respondent No.4 whereby the petitioner has been informed that an addition in qualifying service claimed by the petitioner is not permissible in her case and the same is permissible only in those cases in which the employee proceeding on voluntary retirement does not have the requisite qualifying service for claiming maximum pension. 2. Briefly stated, the facts of the case are that the petitioner who was working as Professor of English in the Directorate of Distance Education, University of Jammu applied for voluntary retirement in the year 2012 with the proposed date of retirement as 01.05.2012. The request of the petitioner was approved by the competent authority for voluntary retirement w.e.f. 01.05.2012. With the retirement of the petitioner, her pensionary benefits were also sanctioned. The petitioner noticed anomaly in the calculation of her pensionary benefits and approached respondent No.3 by way of representation. The matter was taken up by the University of Jammu with the Financial Advisor, J&K Universities (Finance Department, J&K Government). The Principal Secretary to Government, Finance Department, who is ex-officio Financial Advisor, Universities, vide his communication No. FA/JU/162com/2014/170 dated 03.02.2017 rejected the request of the petitioner for adding five years in her qualifying service for the purposes of calculating the pensionary benefits on the ground that as per Article 230 of J&K Civil Service Regulations, 1956, the benefit was admissible only in those cases in which the employee proceeding on voluntary retirement is found lacking requisite service qualifying for maximum pension. On the basis of the opinion tendered by the Financial Advisor, Universities, the impugned communication was issued by the University of Jammu. 3. I have heard learned counsel for the parties and perused the record. 4. The only issue that needs determination in this petition turns on the interpretation of Article 230 of J&K CSR. There is no dispute that the petitioner has been given the voluntary retirement and at the time of her retirement, she had 29 years, 10 months and 5 days’ service and for getting the full pension, the requisite qualifying service is 28 years. If the interpretation put by the Financial Advisor, Universities on Article 230 of J&K CSR is accepted, then the petitioner does not require any addition of qualifying service for obtaining the maximum pension. If the interpretation put by the Financial Advisor, Universities on Article 230 of J&K CSR is accepted, then the petitioner does not require any addition of qualifying service for obtaining the maximum pension. This exactly is the stand taken by the University of Jammu in its objections and reiterated by Mr. Sethi appearing for the University of Jammu during the course of the arguments. 5. The contention of learned counsel for the petitioner, however, is that the Financial Advisor, Universities has not correctly understood the import of Article 230 of J&K CSR. 6. Before appreciating the rival contentions of the parties, it would be worthwhile to reproduce the relevant portion of Article 230 of J&K CSR, 1956 relied upon by both the sides. It reads thus: “230. (i) A Government servant including the one listed in Schedule II of these rules may voluntarily retire from service any time after completing 20 years/40 completed six monthly periods of qualifying service or 45 years of age, provided that he shall give in this behalf a notice in writing to the appointing authority at least 3 months before the date on which he wants to retire. Such an officer shall be granted five years addition to the qualifying service as may have put in by him, on the date he wants to retire, provided that his past record of service has been clean in the opinion of the appointing authority. Where in any such case addition in qualifying service is granted, pensionary benefits will be calculated on the basis of service as he would have put in had he retired at the normal age of superannuation (namely 55 years) or the service put in including five years addition whichever may be earlier”. 7. A plain reading of Article 230 of J&K CSR would make it abundantly clear that a Government servant is entitled to seek voluntary retirement from service any time after he/she has completed 20 years/40 completed six monthly periods of qualifying service or has attained the age of 45 year. He/she, however, is required to give an advance notice in writing of at least three months to the appointing authority. Article 230 further provides that the officer retiring voluntarily would be entitled to five years addition to the qualifying service as he may have put in on the date he/she proposes to retire. He/she, however, is required to give an advance notice in writing of at least three months to the appointing authority. Article 230 further provides that the officer retiring voluntarily would be entitled to five years addition to the qualifying service as he may have put in on the date he/she proposes to retire. This five years addition would be given only to such employees seeking voluntary retirement whose past record of service has been clean in the opinion of the appointing authority. The aforesaid Article further provides that wherein the appointing authority grants such addition in the qualifying service, the pensionary benefits shall be calculated on the basis of service he/she would have put in, had he retired at the normal age of superannuation or the service put in including five years addition whichever may be earlier. This portion of Article 230 poses challenge of interpretation. 8. A careful reading of the provision in its context would indicate that in all cases a person retiring voluntarily would be entitled to the benefit of additional five years qualifying service. He will get the benefit of those additional five years qualifying service only if such addition makes his total qualifying service equal to or less than his normal age of superannuation. For example, if an employee retires voluntarily at the age of 50 and the normal age of superannuation is 60, then, for the purposes of calculating the pensionary benefits, five years qualifying service would be added and the concerned employee would be taken as if he has retired at the age of 55 years. Similarly, if the retiring government servant is 57 years old and adding five years would make him to retire at the age of 62 years, in such situation, his pensionary benefits would be calculated on the basis of the service as he would have put in, had he retired at the age of 60 years. This instance has been given to explain the correct import of Article 230 of J&K CSR. 9. This instance has been given to explain the correct import of Article 230 of J&K CSR. 9. Applying the provisions of Article 230 to the case of the petitioner, the petitioner, who retired voluntarily w.e.f. 01.05.2012, will have the benefit of five years addition qualifying service and on the analogy of the provisions of the said SRO, her pensionary benefits would be calculated on the basis of service she has actually put in plus five years, provided the total qualifying service does not exceed the service that the petitioner would have rendered, had she retired at the normal age of superannuation. 10. The petitioner claims to be 51 years old at the time she retired voluntarily. If that is the correct position, adding five years more qualifying service would make her to retire notionally on attaining the age of 56 years. The normal age of superannuation as on 01.05.2012 was 58 years (revised vide SRO-10 dated 05.01.1987). That being the position, the petitioner is entitled to have the addition of five years of qualifying service for the purposes of calculating the pensionary benefits payable to the petitioner. Accordingly, it is held that in the case of the petitioner, the pensionary benefits shall be calculated on the basis of service actually put in by her plus addition of five years. 11. In view of the aforesaid, this petition is allowed and the impugned communication is quashed. Respondent No.2 is directed to revise and re-fix the pensionary benefits of the petitioner by calculating the same on the basis of actual service which the petitioner has rendered plus addition of five years service as envisaged under Article 230 of JK CSR. The petitioner shall be deemed to have notionally retired at the age of 56 years. The petitioner is also held entitled to the arrears that would accrue after re-fixation of the pensionary benefits w.e.f. 01.05.2012 in the manner directed above. 12. Disposed of as above.