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2018 DIGILAW 911 (RAJ)

State of Rajasthan v. Sanwar Mal Sharma

2018-04-04

DINESH CHANDRA SOMANI, M.N. BHANDARI

body2018
JUDGMENT M.N. Bhandari, J. - Heard on the application under Section 5 of the Limitation Act, which is not seriously opposed by learned counsel for the non-appellant. We find reasons for the condonation of delay. The application under Section 5 of the Limitation Act is allowed. The delay in filing the appeal is condoned. 2. A writ petition was filed by the petitioner-non-appellant to challenge the action of the appellants-State respondent for withdrawing the order for pensionary benefits for counting the past service rendered with the Rajasthan State Ganganagar Sugar Mills Ltd. between 07.07.1982 to 29.07.1989. The writ petition has been allowed by the learned Single Judge, though, at one stage, the matter went up to the Division Bench. The appellant- State passed fresh order in pursuance to the direction of Division Bench in Civil Special Appeal (Writ) No.773/2015, decided vide order dated 27.07.2016. The State Government denied the benefit of past service for pensionary benefits and the order aforesaid was assailed by the petitioner-non-appellant. 3. It was stated that the petitioner-non-appellant was initially appointed by the Rajasthan State Ganganagar Sugar Mills Ltd., where he worked till 29.07.1989. He appeared in the selection conducted by the RPSC. On remaining successful, he was appointed by appellant-Department. He resigned from Rajasthan State Ganganagar Sugar Mills Ltd. in consonance to the rules. Since application for selection to the RPSC was sent through proper channel, there was approval to appear in the selection and, on appointment, to join the service in the State Government. The State Government taking aforesaid into consideration, passed order for the pensionary benefits by counting the period of past service rendered with Rajasthan State Ganganagar Sugar Mills Ltd. At the subsequent stage, the order was withdrawn though it was in consonance to rule 25(2) of the Rajasthan Civil Services (Pension) Rules, 1996 (for short "the Rules of 1996) read with Appendix IX to the Rules of 1996. 4. The similarly placed Officer namely Shri N.K. Mishra was also extended the benefit of past service for determination of the pensionary benefits, thus discrimination was caused in the case of petitioner-non-appellant by withdrawing the order. The learned Single Judge, accordingly, allowed the writ petition for pensionary benefits after counting the past service. 5. 4. The similarly placed Officer namely Shri N.K. Mishra was also extended the benefit of past service for determination of the pensionary benefits, thus discrimination was caused in the case of petitioner-non-appellant by withdrawing the order. The learned Single Judge, accordingly, allowed the writ petition for pensionary benefits after counting the past service. 5. Learned Additional Advocate General Shri Shyam Arya submits that the petitioner-non-appellant joined the State Service after tendering resignation from the Rajasthan State Ganganagar Sugar Mills Ltd. In view of the above, the petitioner-non-appellant was not extended pensionary benefits after counting past service rendered with Rajasthan State Ganganagar Sugar Mills Ltd. The learned Single Judge failed to make proper interpretation of Rule 25(2) of the Rules of 1996 read with Appendix IX. In view of the above, the impunged order deserves to be set aside. 6. It is further stated that the case of the petitioner was not comparable with that of Shri N.K. Mishra. It is, no doubt, true that past services rendered by Shri N.K. Mishra with Rajasthan State Sports Council have been counted for pensionary benefits but it is by invoking Rule 14 under Chapter 2 of the Rules of 1996. Shri N.K. Mishra was an international player of Volleyball thus falling in the special category hence as per Rule 14, benefits was given. It could not have been claimed by the petitioner as Government was having discretionary powers to extend the special benefit. 7. In view of the above also, the petitioner-non-appellant is not entitled to the benefits claimed in the writ petition. The prayer is accordingly to set aside the judgment of learned Single Judge. 8. The appeal has been opposed by learned counsel for the petitioner-non-appellant Mr. Shobhit Tiwari. He submits that the petitioner was extended pensionary benefits after counting past service in view of Rule 25(2) read with Appendix IX. It provides for retiral benefits after counting past services, if a candidate is selected in the State Service after rendering service in the Autonomous Body or State Undertaking or vice-versa. If one is selected in the State Service then resignation does not forfeit the past services for the purpose of retiral benefit. Taking into consideration the aforesaid, learned Single Judge has rightly allowed the writ petition. 9. If one is selected in the State Service then resignation does not forfeit the past services for the purpose of retiral benefit. Taking into consideration the aforesaid, learned Single Judge has rightly allowed the writ petition. 9. A case of discrimination was also found as Shri N.K. Mishra was extended benefits after counting his past services while denying it to the petitioner. Rule 14 under Chapter 2 to the Rules of 1996 does not ipso facto apply to the case of Shri N.K. Mishra as it requires a declaration by the State Government to include specified kind of service for pensionary benefits. No order under rule 14 to make a declaration of the nature required was ever issued by the State Government. 10. No other provision exist under the Rules of 1996 to provide different benefits to an international player thus a case of discrimination has also been made out. The prayer is to maintain the order passed by the learned Single Judge and, accordingly, dismiss the appeal. 11. We have considered rival submissions of the parties and perused the record. 12. Learned counsel for the parties raised two issues for our consideration. First issue is about entitlement of pensionary benefits by counting the past services, rendered in a Public Undertaking or Autonomous Body of the State. In the instant case, the petitioner-non-appellant was an employee of the Rajasthan State Ganganagar Sugar Mills Ltd. and applied for the post in pursuance to advertisement issued by the RPSC. On his selection, he was appointed by the appellant-Department and, accordingly, he tendered his resignation. The application for selection to the RPSC was made through proper channel, thus Appendix IX to the Rules of 1996 come into play Clause 4 of Appendix 1X is quoted hereunder for ready reference. (4) Pensionary benefits (i) Resignation from Government service with a view to secure employment in a State public enterprise/autonomous body with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation. 13. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation. 13. As per the clause quoted above, if a Government servant secures employment in Public Undertaking or Autonomous Body with proper permission then it would not entail forfeiture of services for the purpose of terminal benefits. It applies vice versa i.e. if an employee of State Enterprises/Autonomous Body applies for State Service then, on his resignation, it would not entail forfeiture of past service. 14. In view of the above and taking into consideration the facts of this case, State Government has rightly passed the order for pensionary benefits at the initial stage by counting past services rendered by the petitioner-non-appellant with the Rajasthan State Ganganagar Sugar Mills Ltd. Learned Single Judge has considered the issue in reference to the Rule 25(2) of the Rules of 1996 read with Appendix IX to the Rules of 1996. We find no error therein so as to cause interference in the finding. 15. The issue of discrimination also exist. It is not in dispute that a similarly placed officer namely Shri N.K. Mishra was extended pensionary benefits after counting his past services with Rajasthan State Sports Council. The petitioner has been denied similar benefits in discrimination. A reference of Rule 14 of the Rules of 1996 has been given and, for ready reference, it is quoted hereunder. 14. Government's power to declare any service as qualifying service Government may, however, declare that any specified kind of service or service rendered by a Government servant shall qualify for pension subject to such conditions as Government may think fit to impose. 16. The perusal of the Rules shows power of the Government to declare a specified kind of service or services rendered by the Government servant to qualify for pensionary benefits. We do not find anything on record to show declaration of State Government to qualify past services of an international players, who was subsequently appointed in the State Service. 17. In view of the above, reference of Rule 14 of the Rules of 1996, is for the sake of it in absence of any order of State Government to qualify or specify the service for the purpose of pensionary benefits. 17. In view of the above, reference of Rule 14 of the Rules of 1996, is for the sake of it in absence of any order of State Government to qualify or specify the service for the purpose of pensionary benefits. Learned Single Judge thus rightly came to the conclusion on the issue of discrimination in the action of the appellant. In fact, such an observation was even made by the Division Bench and part of the observation made therein has been quoted by the learned Single Judge where the Division Bench observed that case of discrimination by specifically referring the name of Shri N.K. Mishra. 18. In view of the above, we find no reason to cause interference in the order of the learned Single Judge. Accordingly, special appeal fails and is dismissed with no order as to cost. 19. However, the cost imposed on the State Government by the learned Single Judge is made easy and to that extent, interference in the order is made.