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2019 DIGILAW 507 (ORI)

Bhaskar Kumar Mohanty v. State Of Orissa

2019-08-06

B.R.SARANGI

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JUDGMENT : B.R. SARANGI, J. The petitioner, who after his retirement from Indian Postal Service, was appointed as the Chairman, Orissa Staff Selection Commission, has filed this writ application seeking following reliefs; “In view of the facts states above the petitioner humbly prays that the Hon’ble Court may graciously be pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ/writs, order/orders, direction/directions in directing the OP No.1 and OP No.3 to calculate the pension of the petitioner for the period of service he rendered as Chairman of the Orissa Staff Selection Commission in light of Rule 7(2) of the ORISSA STAFF SELECTION (METHOD OF RECRUITMENT AND CONDITION OF SERVICE OF CHAIRMAN AND MEMBERS) Rules, 1995: And further be pleased to direct the Opposite Parties to pay the petitioner the pension @ 333/-per month for the period of service he rendered as Chairman of the Orissa Staff Selection Commission; And further be pleased to direct the Opposite Parties to pay the petitioner all arrears arising out of such fixation of his pension; And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. The fact of the case, in a nutshell, is that the petitioner, after being duly selected in a competitive civil service examination conducted by Union Public Service Commission (UPSC), was selected and appointed to the Indian Postal Service and after successful completion of his tenure, he retired from the said service on attaining the age of superannuation on 30.09.1997. After his retirement, he was appointed as Chairman, Orissa Staff Selection Commission, vide order of the Government dated 28.12.1998, and pursuant to which he joined on 01.01.1999 and continued up to 26.09.2001 on attaining the age of 62 years. Thus he served the commission for a period of 2 years 8 months and 26 days. In exercise of power conferred under Article 309 of the Constitution of India, the Governor of Orissa was pleased to make the Orissa Staff Selection Commission (Method of Recruitment and Conditions of Service of the Chairman and Members) Rules, 1995 (in short “Rules 1995”) for regulating the method of recruitment and conditions of service of the Chairman and Members of the Orissa Staff Selection Commission. The Rules, 1995 have undergone amendment vide notification dated 8th September, 1998 i.e. Orissa Staff Selection Commission (Method of Recruitment and Conditions of Service of the Chairman and Members) Amendment Rules, 1998 (in short “Amendment Rules, 1998”) and as per the amended provision, Rule 7 has been changed. Before his retirement from the office of the Chairman, Orissa Staff Selection Commission, the petitioner applied for payment of his pension as well as the gratuity and the same was forwarded by the opposite party no.1 to the Principal, Accountant General (A & E), opposite party no.3 for calculating the pensionary benefit, as per Rule 7(2) of the Amendment Rules, 1998. But the pension paper was returned by opposite party no.3 to opposite party no.1 with a request to send the same after calculating the pension entitlement as per Rule 7(1) of the Amendment Rules, 1998. The claim of the petitioner is that the pensionary benefit should be calculated as per Rule 7(2) of the Amendment Rules, 1998. Since calculation was not done following the said rules, he submitted a representation to opposite party no.1 with request to look into the matter and settle his pension, but after 10 years of his retirement, the opposite party no.1 passed an order directing that the pay of the petitioner has been re-fixed at Rs.11,200/-only per month (i.e. pay of Rs.22,400 last drawn while in Government Service minus gross amount of pension Rs.11,200) w.e.f. 01.01.1999 plus Dearness Allowance granted by the Government from time to time. But nothing has been specified with regard to sanction of pension to the petitioner by the opposite party no.1. Therefore, he further prays for reconsideration of his pensions as per Rule 7(2) of the Amendment Rules, 1998, in view of the fact that the petitioner was not in service, while he was issued with order of appointment as the Chairman of the Commission. As such, Rule 7(1) of the Rules, 1995 has no application to the present case of the petitioner, since at the time of his appointment he was neither in service nor he retired to take up the job of the Chairman of the Commission. Rather, he had retired on 30.09.1997 and got the appointment as the Chairman of the Commission on 28.12.1998, almost after one year three months of his retirement. Rather, he had retired on 30.09.1997 and got the appointment as the Chairman of the Commission on 28.12.1998, almost after one year three months of his retirement. Therefore, the entitlement of the petitioner should be calculated as per Rule 7(2) of the Amendment Rules, 1998, instead of Rule 7(1) of the Amendment Rules 1998. Since the prayer of the petitioner has not been acceded to, he has filed this application. 3. Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. G. Sinha, learned counsel for the petitioner contended that in view of the provisions of Rule 7(1), on the date of appointment if the person was in service in the Government then only his pension can be fixed under the said provision. But fact remains since the petitioner was not in service on the date of his appointment, the benefit is admissible only under Rule 7(2) of the Amendment Rules, 1998. It is contended emphatically that the petitioner is entitled to get pension as per Rule 7(2) of the Amendment Rules, 1998. It is further contended that on plain reading of the provisions contained under Rules 7(1) and 7(2) of the Amendment Rules, 1998, it would be amply clear that the petitioner’s claim is covered under Rule 7(2), but not under Rule 7(1). As such, the opposite parties has erroneously calculated the pensionary benefit admissible to the petitioner under Rule 7(1) of the Amendment Rules, 1998, therefore seeks for a direction to reconsider the matter keeping in view the provision of Rule 7(2) of the Amendment Rules, 1998. 4. Per contra, Mr. D.K. Pani, learned Addl. Standing counsel justifies the order passed by the authority stating that the petitioner is entitled to get the benefit only under Rule 7(1) of the Amendment Rules, 1998 because on the date of appointment the petitioner had retired from the government service. Therefore, he is not entitled to get the pensionary benefit as per Rule 7(2) of the Amendment Rules, 1998, as claimed by him, rather, the authorities have taken into consideration the provisions of Rules 7(1) of Amendment Rules, 1998 and extended the benefit to the petitioner. Thereby, no illegality or irregularity has been committed by the authority concerned. 5. Mr. Therefore, he is not entitled to get the pensionary benefit as per Rule 7(2) of the Amendment Rules, 1998, as claimed by him, rather, the authorities have taken into consideration the provisions of Rules 7(1) of Amendment Rules, 1998 and extended the benefit to the petitioner. Thereby, no illegality or irregularity has been committed by the authority concerned. 5. Mr. S. Mohanty, learned counsel appearing for opposite party no.2 also subscribed the arguments advanced by the learned counsel for the State and contended that the petitioner’s pension has been calculated as per Section 7(1) of the Amendment Rules, 1998, thereby, no illegality or irregularity has been committed by the authority concerned so as to cause interference of this court at this stage. 6. This Court heard Mr. A.K. Mishra, learned Senior Counsel appearing along with Mr. G. Sinha, learned counsel for the petitioner; Mr. D.K. Pani, learned Addl. Standing Counsel for the State; and Mr. S. Mohanty, learned counsel for opposite party no.2 and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. There is no dispute with regard to factual matrix delineated above. Only question is to be considered here whether the petitioner is entitled to get the pensionary benefit as per Rule 7(1) or Rule 7(2) of the Amendment Rules, 1998 and as such, the benefit under Rule-7(1) of the Amendment Rules already extended to the petitioner. For better appreciation, Rule 7 of the Rules, 1995, which regulates the method of recruitment and conditions of service of the Chairman and Members of the Orissa Staff Selection Commission, reads as follows: “No pension/gratuity shall be admissible to the Chairman and the Member for the serviced rendered in the Commission.” The aforesaid Rule-7 was amended by the Government vide notification dated 8th September, 1998, to the following effect:- “(1) The Chairman and Member of the Commission who on the date of appointment in service in the Government and retired from the said service are entitled to get pension not exceeding Rs.3,500/-per annum, for life, if they have completed not less than 2 years of service as Chairman or Members, as the case maybe, in the Commission. No pension shall be payable to Chairman or Member service. No pension shall be payable to Chairman or Member service. If Chairman or Members who have completed two years of service or more resigns from his office and such resignation is accepted by the Government, he shall be entitled to pension as admissible under these rules. If Chairman or Member has completed two years, three years, four years of service, he shall be entitled for 1/5th, 3/5th or 4/5th respectively of the full pension which is payable to him. (2) Where the Chairman or the Member, who on the date of appointment was not in service of the Union or in any State, he is entitled to get pension of Rs.10,000/-and Rs.7,000/-per annum respectively for life is he has completed five years of service in the commission and subject to other provisions as contained in sub rule (1) above. (3) The Chairman and the Member shall be entitled to the benefit of gratuity at the rate of 15 days pay for each completed year of service, if they have completed not less than two years of service in the commission.” (Emphasis supplied) 8. Admittedly, the petitioner was appointed as the Chairman, Orissa Staff Selection Commission vide order of the Government dated 28.12.1998. Consequence thereof, he joined on 01.01.1999 and retired from service on attaining the age of 62 years on 22.09.2001 by rendering service for a period of 2 years 8 months and 26 days. After retirement, the benefit as per Rule 7(1) of Amendment Rules, 1998 has been granted to him, but his claim is that his pension should be calculated as per Rule 7(2) mentioned above. On close reading of the aforementioned rule, it is made clear that so far as Rule 7(1) is concerned, the Chairman and Member of the Commission, who on the date of appointment was in service in the Government and retired from the said service, are entitled to get pension not exceeding Rs.3,50,000/-per annum, if they have completed not less than 2 years of service as Chairman or Member, as the case may be, in the Commission. So far as Rule 7(2) is concerned, it is provided where the Chairman or the Member, who on the date of appointment was not in service of the Union or in any State, he is entitled to get pension of Rs.10,000/-and Rs.7,000/-per annum respectively for life if he has completed five years of service in the commission and subject to other provisions as contained in sub-rule (1) of Rule 7. 9. Mr. A.K. Mishra, learned Senior Counsel appearing for the petitioner emphatically submitted that the petitioner, on the date of appointment of Chairman, Orissa Staff Selection Commission, was not in service of the Union or any State. Therefore, he is entitled to get the benefit as per Rule 7(2) of the Amendment Rules, 1998. But the Rule 7(1) contemplates the Chairman or Member of the Commission who on the date of appointment in service in the Government and retired from the said service are entitled to get pension. Admittedly, on the date of appointment, the petitioner had retired from the Government service on 30.09.1997. Therefore, the determination of benefit has been made in accordance with Rule 7 (1) of the Amendment Rules, 1998. 10. Mr. A.K. Mishra, learned Senior Counsel appearing for the petitioner further contended that as per the provisions contained under Rule 7(2), since the petitioner was not in service of the Union or any State, he is entitled to get pension under the said Rules. That cannot sustain because of the fact that the petitioner is admittedly retired from Government service and as a consequence thereof Rule 7(1) has got application to the present context. Therefore, it is only question of interpretation of Rule 7(1) vis-à-vis Rule 7(2) to fix the entitlement of the petitioner concerned. On perusal of the aforesaid Rules, there is no ambiguity of the Rules itself. 11. In Madan Lal v. Changdeo Sugar Mills, AIR 1962 SC 1543 , the apex Court held that the elementary rule is that words used in a section must be given their plain grammatical meaning. This view has also been reiterated in Workmen of Bombay Port Trust v. Trustees, AIR 1962 SC 481 . The above interpretation is considered as golden rule of interpretation. 12. This view has also been reiterated in Workmen of Bombay Port Trust v. Trustees, AIR 1962 SC 481 . The above interpretation is considered as golden rule of interpretation. 12. In Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240 , the Privy Council, speaking through Lord Atkinson observed as follows: “In the construction of statutes, their words must be interpreted in their ordinary grammatical sense, unless there be something in their context, or in the objection of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. Exigencies of business, for instance, cannot deflect the Court from adopting the only interpretation with the language of the enactment bears.” 13. In New Piece Goods Bazar Co Ltd. v. Commissioner of Income-tax, Bombay, AIR 1950 SC 165 , the Supreme Court held as follows: “it is an elementary duty of a Court to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention.” 14. In Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749 , the apex Court observed as follows: “The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the section of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that construed according to the ordinary grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage, the appeal must be to Parliament and not to this Court.” Similar view has also been taken by the apex Court in Commr. Of Wealth-tax v. Hashmalunnisa Begum, AIR 1989 SC 1024 . 15. Of Wealth-tax v. Hashmalunnisa Begum, AIR 1989 SC 1024 . 15. In Navin Chandra v. Commissioner of Income-tax, (1955) 1 SCR 829 , the apex Court held as follows: “The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.” Similar view has also been taken Raghunandan Saran Ashok Saran v. Pearey Lal Workship Pvt. Ltd., AIR 1986 SC 1682 . 16. In Jugal Kishore v. Raw Cotton Co. Ltd., AIR 1955 SC 376 , the apex Court observed as follows: “The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.” Similar view has also been taken by the apex Court in Punjab Land Development and Reclamation Corpn. Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682 . 17. In view of the law laid down by the apex Court, as discussed above, there is no iota of doubts that the words used in the rules must be given a plain grammatical meaning and the elementary duty of the Court is to give effect of the intention of the words used as expressed and no outside consideration can be called in aid to find that out in different meaning. Therefore, the spirit of law may well be an elusive and unsafe guide and the supported spirit can certainly not be given effect to in opposition to the plain language of the section of the Act and Rules made thereunder. As such, this statutory provision has to be construed according to the ordinary, grammatical and natural meaning of their language. Therefore, the cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. 18. As such, this statutory provision has to be construed according to the ordinary, grammatical and natural meaning of their language. Therefore, the cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. 18. Applying the above principle to the present context, since the petitioner was retired from government service on the date of his appointment as Chairperson of the Commission, he is entitled to get pension as per Rule 7(1) of the Amendment Rules, 1998. Therefore, the claim made that the benefit should be extended as per the Rule 7(2) of the Amendment Rules, 1998 has no justification. 19. In view of the aforesaid facts and circumstances as well as the law discussed above, this Court is of the considered view that the determination of pensionary benefits as per Rule 7(1) of the Amendment Rules, 1998 is wholly and fully justified, as such the claim made by the petitioner to determine the pensionary benefit in accordance with Rule 7(2) of the Amended Rules, 1998 cannot sustain in the eye of law. Therefore, the writ petition is devoid of any merit and the same is accordingly dismissed. No order to costs.