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2019 DIGILAW 1529 (HP)

Man Singh v. State of H. P.

2019-10-16

DHARAM CHAND CHAUDHARY, L.NARAYANA SWAMY

body2019
JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. This judgment shall dispose of all the three writ petitions hereinabove involving identical questions of law and facts and the relief sought is also similar in nature. 2. The petitioner in CWP No. 1096 of 20-19 is a member, whereas petitioners in CWP Nos. 1097 and 1098 of 2019 are former members of Himachal Pradesh Public Service Commission (for shot ‘the Commission’), the third respondent. Prior to their appointment as Members of the Commission, Man Singh the petitioner in Civil Writ Petition No. 1096 of 2019 being Member of the Himachal Pradesh Administrative Service was posted as Special Secretary (Personnel) to the Government of Himachal Pradesh, Pardeep Singh Chauhan, the petitioner in Civil Writ Petition No. 1097 of 2019 was working as Engineer-in-Chief, HP Public Works Department and Mohan Lal Chauhan, the petitioner in Civil Writ Petition No. 1098 of 2019 being Member of Indian Administration Service as Secretary (SAD, GAD, SWD, Parliamentary Affairs) to the Government of Himachal Pradesh. Their appointment letters are Annexure P-1 to these writ petitions. On their appointments as Members of the Commission, they had sought voluntary retirement and were accordingly ordered to retire by the competent authority vide order Annexure P-2 to the writ petitions. It is after their retirement, they assumed the charge of the office of Members Himachal Pradesh Public Service Commission on different dates as indicated in the charge assumption reports Annexure P-3 to the writ petitions. All the petitioners are still working as Members of the Commission. 3. They allegedly being not in the service of the Central Government or a State Government, a Local Authority, A University, a Privately Managed Recognized School or Affiliated College or any other body wholly or substantially owned or controlled by the State Government at the time of their appointments made representations Annexure P-7 to these writ petitions for consideration of the service they rendered in the Commissions as Members for the purpose of pensionary benefits on the basis of judgment dated 4.5.2016 Annexure P-5 of this Court in LPA No. 155 of 2015, titled Brig. L.S. Thakur (Retired) vs. State of Himachal Pradesh and Another affirmed even by the Hon’ble Apex Court also vide judgment Annexure P-6. L.S. Thakur (Retired) vs. State of Himachal Pradesh and Another affirmed even by the Hon’ble Apex Court also vide judgment Annexure P-6. Their representations were however not accepted and rather rejected thrice as is apparent from the perusal of order Annexure P-8 and P-9 to these writ petitions on the grounds inter-alia that their cases is different from that of Brig. L.S. Thakur and also that they all are already getting good social security benefits/pension with respect to their past service, hence the service they rendered in the Commission is not required to be considered for the purpose of pensionary benefits. 4. It is on the rejection of their representations, the petitioners have approached this Court by way of filing these writ petitions with the following prayers: (a) that the communication dated 19.4.2017 Annexure P-8 and communication dated 20.7.2017 Annexure P-9 being illegal be quashed and set aside. (b) that after retirement as members of the Commission, they may be held entitled to the payment of emoluments in terms of Regulation 11-A of Himachal Pradesh Public Service Commission (Members) Regulations, 1974. 5. The relief has been sought on the grounds inter-alia that the emoluments payable under Regulations 11-A are in the form of honorarium payable to the Chairman/Members of the Commission for each completed year of service by them in the Commission. The pension being drawn by the members on account of service they rendered prior to their appointment as Chairman/Members cannot be taken to deny the benefit as admissible under Regulations 11-A. The respondents have not assigned any valid and cogent reasons while rejecting their claim qua the benefit admissible to them under Regulations 11-A. The only reasoning that their claim is not covered by the judgment of this Court rendered in Brig. L.S. Thakur’s case supra is palpably false and wrong to the own knowledge of the respondents. According to the petitioners, their case rather is pari materia and similarly to that of Brig. L.S. Thakur. According to the petitioners, they all have been appointed as Members in the Commission after their retirement from previous civil service and they took oath as Members of the Commission only after the competent authority allowed them to retire from civil service voluntarily. Their cases, as such, is stated to be clearly covered by the judgment of this Court in Brig. L.S. Thakur’s case supra. Their cases, as such, is stated to be clearly covered by the judgment of this Court in Brig. L.S. Thakur’s case supra. The another ground of rejection of their representations that they are keeping good social security/pension with respect to past service they rendered is again false as Brig. L.S. Thakur was also a pensioner when appointed as Chairman of the Commission and this Court allowed the benefit of Regulations 11-A to him vide the judgment Annexure P-5. The petitioners being similarly situated to said Brig. L.S. Thakur are stated to be discriminated and as such, the representations, made by them is neither illegal nor arbitrary and rather violative of Sections (sic article) 14 and 16 of the Constitution of India. 6. On 12.6.2019 taking into consideration the claim of the petitioners that their cases is covered by the judgment Annexure P-5 rendered by this Court in LPA No. 155 of 2015 following order came to be passed: “Notice. Mr. J.S. Guleria, learned Deputy Advocate General appears and accepts service of notice on behalf of respondents No. 1 and 2 and Mr. Harsh Kalta, Advocate vice Mr. Deven Khanna, Advocate, on behalf of respondent No. 3. It is seen that the point in issue in this writ petition is covered by the judgment of this Court in LPA No. 155 of 2015, Annexure P-5, which has even been upheld by the Hon’ble Apex Court also vide its order dated 16.12.2016, Annexure P-6. Any how, learned Deputy Advocate General seeks time to have instructions. Allowed. List on 4th July, 2019.” 7. Consequently, replys though were filed separately in these writ petitions, however, the common stand of the respondents No. 1 and 2 in a net shell is that when appointed as Members the petitioners were in Civil Service being Members of Himachal Pradesh Administrative Service, Indian Administrative Service and petitioner Pradeep Singh Chauhan as Engineer-in-Chief, they all were in the employment of the State Government. Brig. L.S. Thakur on the date when appointed as Chairman of the Commission was a retired army officer. The Regulation 11-A is not applicable in the case of the petitioners. The petitioners are stated to be not similarly situated to Brig. L.S. Thakur, hence the judgment Annexure P-5 not applicable in their case. All the writ petitions, as such, have been sought to be quashed and set aside. 8. The Regulation 11-A is not applicable in the case of the petitioners. The petitioners are stated to be not similarly situated to Brig. L.S. Thakur, hence the judgment Annexure P-5 not applicable in their case. All the writ petitions, as such, have been sought to be quashed and set aside. 8. Respondent No. 3, however, has not opted for filing reply irrespective of the opportunities granted. 9. We have heard Mr. Hamender Singh Chandel, Advocate, learned counsel representing the petitioners in these writ petitions and Mr. Ajay Vaidya, learned Senior Additional Advocate General on behalf of respondent-State and Mr. D.K. Khanna, Advocate, on behalf of respondent No. 3. 10. On analyzing the rival submissions the moot question for consideration having arisen in these writ petitions is as to whether a person came to be appointed as a Member of the Commission on the day when he was a Member of civil service, however, tendered resignation and assumed charge of the office of Member after having been allowed to retire by the competent authority from the civil service is entitled to the benefit under Regulations 11-A or not. Also that the judgment Annexure P-5 rendered by this Court in LPA No. 155 of 2015 in the case of Brig. L.S. Thakur, the Chairman of the Commission, is applicable in the given facts and circumstances of this case or not. The answer to this poser in all fairness and in the ends of justice would be in affirmative for the reasons that the petitioners are similar situated to Brig. LS. Thakur and Regulation 11-A is applicable in their cases also. 11. It is desirable to refer here Regulation 11-A of the Himachal Pradesh Public Service Commission (Members) Regulations, 1974 framed by the Governor of Himachal Pradesh in exercise of the powers conferred by Article 318(A) of the Constitution of India. The same reads as follow: “11-A: The Chairman or a Member, who at the date of his appointment as such was not in the service of the Central Government or a State Government, a Local Authority, A University, a Privately Managed Recognized School or Affiliated College or any other body wholly or substantially owned or controlled by the state Government of Himachal Pradesh shall on his ceasing to hold office as Chairman or Member be paid a pension for his life @ Rs. 300/- (Rupees three hundred per month) in the case of Chairman and Rs. 250/- (Rupees two hundred and fifty per month) in the case of Member for each completed year of service as Chairman or Member, as the case may be subject to maximum of Rs. 1800/- (Rupees one thousand one eight hundred) and Rs. 1500/- (rupees one thousand five hundred) per month in the case of Member.” 12. It is thus seen that chairman or a Member of the Commission if at the time of his/her appointment as such was not in the service of Central Government or a State Government, a Local Authority, A University, A Privately Managed Recognized School or Affiliated College or any other body wholly or substantially owned or controlled by the Government of Himachal Pradesh is entitled to pension as prescribed thereunder. The claim of the petitioners is that they were not in the service of the Central Government or State Government or any other organization supra at the time of their appointments as Members of the Commission. True it is that on the day when appointed as such vide Annexure P-1 in these writ petitions Man singh, the petitioner in Civil Writ Petition No. 1096 of 2019 being Member of Himachal Administrative Service was working as Special Secretary (Personnel) to the Government of Himachal Pradesh and Pardeep Singh Chauhan, the petitioner in CWP No. 1097 of 2019 Engineer-in-Chief, H.P. Public Works Department whereas Mohan Lal Chauhan, Secretary (SA) being Member of Indian Administrative Service. On the date when they accepted the offer of appointment made to them and assumed the charge of the office of Commission, they were not either in the service of Central Government or State Government and even not in the service of any other organization find mention in Regulation 11-A and rather stood retired from civil service on acceptance of their resignation vide order Annexure P-2 to these writ petitions by the competent authority. The mere issuance of appointments letters Annexure P-2 in these writ petitions cannot be taken to infer that the process of their appointment was complete. It is their acceptance to the offer of appointment given to them was necessary to perfect their appointments as such. 13. The mere issuance of appointments letters Annexure P-2 in these writ petitions cannot be taken to infer that the process of their appointment was complete. It is their acceptance to the offer of appointment given to them was necessary to perfect their appointments as such. 13. Their Lords have held in titled Tradax Export SA vs. Volkswagenwerk, (1970) 1 All ER that “appointment should not be considered effective until the person appointed has agreed either expressly or tacitly to exercise the functions of the office”. The support can be drawn from the following text of the report: “A man who to his knowledge and with his consent has unquestionably been appointed as arbitrator may thereafter find it impossible to carry out his duties and this for a large variety of reasons. Mr. Chesterman himself gave just a few examples of these in one of his affidavits, by stating: “In every case so far in which I have been appointed by (the plaintiffs), I have been able to act for them and have done so; but I recognize that certain circumstances could conceivably arise in which it might be impossible for me to do so, as, for example, if I had some personal knowledge of or interest in the matter in dispute, or it I had already accepted an appointment for another party in the arbitration.” In such cases it can properly be said that he ‘refuses to act’ and S. 7(a) provides that in those circumstances the party who appointed him may appoint a new arbitrator in his place. But I find nothing in this or the other statutory provisions which supports the startling proposition submitted by the plaintiffs. Nor can I see anything in the facts of this case which amounts to anything more than a probability that Mr. Chesterman would be appointed by the plaintiffs as their arbitrator. That, in my judgment, is insufficient to produce the result contended for by the appellants. The legal position has long been set out in successive editions of Russel on Arbitration in these words: “Acceptance of the office by the arbitrator appears to be necessary to perfect his appointment. Chesterman would be appointed by the plaintiffs as their arbitrator. That, in my judgment, is insufficient to produce the result contended for by the appellants. The legal position has long been set out in successive editions of Russel on Arbitration in these words: “Acceptance of the office by the arbitrator appears to be necessary to perfect his appointment. It has been so decided in the case of an umpire, and it would seem to be only reasonable that an appointment should not be considered effective until the person appointed has agreed either expressly or tacitly to exercise the functions of the office.” 14. The Apex Court in S. Jamaldeen and Others vs. High Court of Madras and Others, (1997) 4 SCC 30 has also held that “Appointment to the service” is complete only when a person discharges the duties to the post against which appointed for the first time. The relevant extract of this judgment also reads as follow: “Appointment to the service” is only when a person discharges for the first time the duties of the post borne on the cadre of the service and under Rule 2(10) “ember of the Service” is a person who has been “appointed to the service.” It is thus clear that the direct recruits though selected by the Tamil Nadu Public Service Commission for the post of District Munsif and approved by the State Government on 21-10-1988 were “appointed to the service” only on 3-11-1988 and at that point of time, all the appellants were already District Munsifs in view of the integration brought about the amended Tamil Nadu State Judicial Service Rules.” 15. The legal principles settled in the judgment supra, therefore, make it crystal clear that: (i) acceptance of the person appointed is necessary to perfect his/her appointment. (ii) The appointment should not be effective until the person appointed has agreed to exercise the function of the office against which appointed. Such being the legal position, it would not be improper to conclude that the petitioners were appointed on 26.10.2015, 23.12.2013 and 3.3.2017, the dates when in acceptance of the offer of appointments made to them, they assumed the charge of the office of Members of the Commission. They admittedly were not the Members of Civil/State service on these dates having sought voluntary retirement and allowed to retire by the competent authority. They admittedly were not the Members of Civil/State service on these dates having sought voluntary retirement and allowed to retire by the competent authority. Therefore, on the date of their appointment they had already retired from government service like Brig. L.S. Thakur. We, therefore, fail to understand as to why the judgment Annexure P-5, affirmed even by the Apex Court also vide judgment Annexure P-6, is not applicable in the cases of the petitioners. Also that when by way of judicial pronouncement the benefit of Regulation 11-A has been extended in favour of Brig. L.S. Thakur, how it could have been with-held from the petitioners. Therefore, the points in issue in these writ petitions are squarely covered in favour of the petitioners by the judgment Annexure P-5 of this Court in Brig. L.S. Thakur’s case, affirmed by the apex Court also. The grounds for rejection of the representations made by the petitioners that their claim is not covered by the judgment Annexure P-5 and that on the date of their appointment they were the Members of Civil/State Service, hence not entitled to the benefit of Regulation 11-A are highly illegal, arbitrary and also violative of Articles 14 and 16 of the Constitution of India. The impugned orders Annexure P-8 and P-9 are, therefore, neither legally nor factually sustainable, hence deserves to be quashed and set aside and the petitioners to be held entitled to the benefit of Regulation 11-A. 16. For all the reasons hereinabove, all the writ petitions succeeds and the same are accordingly allowed. Consequently, orders of rejection of the representations of the petitioners Annexure P-8 and P-9 are quashed and set aside. Consequently, the respondents are directed to grant pension to the petitioners as admissible under Regulation 11-A of Himachal Pradesh Public Service Commission (Member) Regulations, 1974. The due and admissible arrears, if any, be also released in favour of the petitioners within three months from today. 17. All the writ petitions stand disposed of accordingly, so also the pending applications, if any.