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2020 DIGILAW 723 (RAJ)

Prabhat Narain Singhal v. State of Rajasthan

2020-12-08

SANJEEV PRAKASH SHARMA

body2020
ORDER : Sanjeev Prakash Sharma, J. 1. The petitioners before this Court are all pensioners who have retired on different dates. The common grievance of the petitioners is that when they retired/attained superannuation, their pension should have been fixed on the basis of last pay drawn. The petitioners have placed on record their last pay certificates issued by the Bhakra Beas Management Board (hereinafter referred to as "BBMB"). It is stated that the petitioners had initially been posted on deputation from the erstwhile Rajasthan State Electricity Board (hereinafter referred to as "RSEB") to BBMB as Assistant Engineers against the share quota of Rajasthan Post reserved for sharing basis. It is stated that thereafter the petitioners continued to perform their duties continuously with the BBMB and attained superannuation. While working in BBMB, the petitioners were treated as employees of the RSEB thereafter that of Rajasthan Rajya Vidyut Prasaran Nigam Limited (hereinafter referred to as "RRVPNL"), since they had been promoted from time to time, they continued to hold higher post at BBMB and for example the petitioner Prabhat Narain Singhal attained superannuation on 31.12.2007 as a Superintending Engineer. 2. Similarly, other petitioners also attained superannuation while working with BBMB. After having retired, the petitioners prayed for getting their pension fixed under the Rajasthan Pension Rules, 1996 and the RRVPNL made their pay fixation under the Rajasthan Pension Rules and the pay scale applicable to RRVPNL. Accordingly, the notional pay fixation was drawn on the date of superannuation. As per pay and salary applicable to employees of the RRVPNL, pension and retiral benefits were also released accordingly. 3. Petitioners have thereafter preferred these writ petitions on the basis of the judgment passed by the High Court in D.B. Civil Special Appeal No. 119/2009, State of Rajasthan Vs. Darbari Lal & Anr. decided on 29.10.2014 alongwith other connected D.B. Civil Special Appeal No. 646/2005, State of Rajasthan & Anr. Vs. Bhagwan Dutt Gaur & Anr. wherein the Division Bench rejected the appeals preferred by the State and upheld the order passed by the Single Bench directing for fixation of pension on the basis of last pay drawn and while working with the BBMB, following order was passed from the aforesaid facts:- "9. From the aforesaid facts and circumstances, which have been referred to in the letter of the Secretary, BBMB, as well as in the judgment in P.C. Gandhi Vs. From the aforesaid facts and circumstances, which have been referred to in the letter of the Secretary, BBMB, as well as in the judgment in P.C. Gandhi Vs. State of Rajasthan's case (supra), it would be clear that the respondents were not sent on deputation to BBMB, and that is why they were not repatriated even after the maximum period of deputation of five years, provided under the Rajasthan Service Rules, 1951. They were also not paid the deputation allowances. They were all along treated as transferred employees on the post reserved on sharing basis on the capital outlay of the State of Rajasthan in BBMB, as officers of the Irrigation Department. 10. The Supreme Court in Special Leave to Appeal (Civil) No. 10098/2007, in a judgment arising from the High Court of Punjab & Haryana, has also explained the position, with regard to transfer of the employees of the Punjab Government to BBMB. The same principle will apply to the instant case, as the employees serving in the Irrigation Department of the State of Rajasthan, were transferred on the same terms and conditions, in the proportion of capital outlay of the State of Rajasthan in BBMB. 11. On the aforesaid facts, we do not find that the distinction drawn by learned counsel appearing for the State of Rajasthan, on the basis of Rule 45 of the Rajasthan Pension Rules, 1996, has any application to the facts of the case. 12. On the above discussion, we do not find that learned Single Judge committed any error of law in following the judgment in P.C. Gandhi Vs. State of Rajasthan's case (supra), and in allowing the same relief to the respondents. 13. Both the Special Appeals are dismissed, with the observation that pension in respect of the respondents in these Special Appeals will be redetermined on the last pay drawn by them in BBMB on the date of their superannuation, when they were serving in BBMB, and considering the circumstances in which the State Government had unnecessarily dragged the respondents into litigation, we direct that entire arrears, on such redetermination, will be paid to the respondents with interest @ 12% per annum, within a period of three months from the date of service of the judgment on the respondents. 14. Both the Special Appeals are, accordingly, dismissed with costs with the aforesaid observations. 15. 14. Both the Special Appeals are, accordingly, dismissed with costs with the aforesaid observations. 15. A copy of the judgment will be placed in the connected file." 4. Learned counsel submits that the petitioners are similarly situated to those whom the benefit was granted by the Division Bench as well as by the Single Bench earlier and therefore they are also entitled to fixation of their pension as per the last pay drawn. 5. Per contra, learned Senior Counsel Mr. Rajendra Prasad assisted by Mr. Ashish Sharma appearing for the RRVPNL submits that the petitioners have all throughout represented themselves as employees of the RRVPNL and they had submitted their option for fixation of their salary and pension in terms of the Rules, which are applicable to the employees of the RRVPNL. Learned Senior Counsel has also attempted to distinguish the judgment passed by the Division Bench in State of Rajasthan Vs. Darbari Lal (Supra) to submit that the certain judgments passed by the Supreme Court have not been taken into consideration while deciding the appeals in the alternative. 6. Learned Senior Counsel has also argued that even if the benefit is to be extended as granted by the Division Bench, to the present petitioners, it should be limited to only last three years from the date of the filing of the petitions as the petitions have been preferred after much delay and laches. It is submitted that as much as 17 years have lapsed from the date when the petitioners had retired or attained superannuation and therefore relying upon the judgment passed by the Supreme Court in the case of Shiv Das vs. Union of India & Ors., reported in : AIR 2007 SC 1330 , it is submitted that the relief should be made limited to the extent of three years alone. 7. Learned counsel has also submitted that the Division Bench did not take into consideration, the law as laid down by the Supreme Court in Jaswant Singh and ors, Vs. Union of India and Ors., reported in AIR 1980 SC 115 which distinguished the service of employees by Central Government and those who are sent by deputation by respective State Governments to the BBMB. 8. I have considered the submissions as above. 9. Union of India and Ors., reported in AIR 1980 SC 115 which distinguished the service of employees by Central Government and those who are sent by deputation by respective State Governments to the BBMB. 8. I have considered the submissions as above. 9. So far as the petitioner Prabhat Narain Singhal is concerned, he admittedly retired in 2007 and had applied for being fixed in the pay scale applicable to the RRVPNL as has been pointed out by the counsel for the RRVPNL. However this Court finds that the case of the petitioners is identical to the employees who were sent from other departments to the BBMB and it is an admitted position that the petitioners attained superannuation while working with the BBMB, although the order of retirement was issued by the RRVPNL. The petitioners were admittedly drawing higher pay at the time of retirement then fixed by the RRVPNL. 10. As per the Rule 256-D of the Rajasthan Service Rules, a retired person is entitled to receive pension 50% of the last pay drawn. This principle was followed in the judgment passed by the Court in P.C. Gandhi Vs. State of Rajasthan, S.B. Civil Writ Petition No. 620/1993 dated 04.05.1999, which has been followed by the Division Bench while dismissing the appeals of the State. Learned Single Judge while deciding the P.C. Gandhi's case relied upon similar cases decided by the Division Bench of Punjab and Haryana High Court in Nirmal Singh Vs. State of Punjab wherein the concerned petitioner-Nirmal Singh had attained superannuation while working as SDO with BBMB and was drawing the salary of Rs. 4,875/- while parent department had fixed his salary of Rs. 3,800/- at the time of retirement. The Division Bench of Punjab and Haryana High Court held that the petitioner therein was entitled for re-computation of his retiral benefits and directed to pay his pension and gratuity or retiral benefits by computing his last pay drawn as Rs. 4,875/-. 11. Having noticed the aforesaid judgments, this Court does not find any difficulty in following the aforesaid law as laid down by the Co-ordinate Bench as well as by the Division Bench and holds the petitioner to be also entitled for getting his pension and other retiral benefits fixed on the basis of the last pay drawn by him while attaining superannuation with BBMB. Similarly, other petitioners too would be entitled for getting their pension fixed accordingly. 12. The question now further arises as to whether actual benefits should be paid to the petitioners who have approached the Court belatedly. Petition of Prabhat Narain Singhal has been filed in 2017 while the petitions of 6 petitioners in S.B. Civil Writ Petition No. 1807/2017, Kanhaiya Lal & Ors., who retired on different dates, was also filed in 2017 and Suresh Chand Mathur and Ors also have filed writ petition in 2017 while petitioners therein have retired on different dates. 13. In M.R. Gupta Vs. Union of India & Ors., reported in: AIR 1996 SC 669 , it was held as under:- "5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. 6. The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Others vs. Mattapalli Raju and Others,: AIR 1950 Federal Court 1)." 14. The view as above has further been clarified by the Supreme Court in Shiv Dass Vs. Union of India & Ors., reported in : AIR 2007 SC 1330 in relation to pension as under:- "10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone. 11. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone. 11. In the peculiar circumstances, we remit the matter to the High Court to hear the writ petition on merits. If it is found that the claim for disability pension is sustainable in law, then it would mould the relief but in no event grant any relief for a period exceeding three years from the date of presentation of the writ petition. We make it clear that we have not expressed any opinion on the merits as to whether appellant's claim for disability pension is maintainable or not. If it is sans merit, the High Court naturally would dismiss the writ petition." 15. In Union of India & Ors. Vs. Tarsem Singh, reported in : (2008) 8 SCC 648 , again the Supreme Court has held as under:- "7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition. 8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." 16. Keeping in view the above, this Court limits the relief to the extent of directing the respondents to make pay fixation as per the last pay drawn and after making fixation of pension and other retiral benefits, the payment of arrears shall be only three years before the date of filing of the respective writ petitions or from the date of demand to the date of writ petitions whichever is lesser, no interest would be payable in the circumstances. However, the difference of amount of gratuity, which shall be payable after fixation under the revised pay, shall be released. The same will also not carry any interest. The compliance of the aforesaid order shall be made within a period of four months from today. If the compliance is not made within four months, the petitioners would also be entitled to receive interest on the arrears from the date of the filing of the writ petitions. 17. In view of the above, the writ petitions are allowed. All pending applications also stand disposed off. 18. A copy of this order be placed in each connected file.