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2023 DIGILAW 2293 (RAJ)

Jagdish Prasad Sharma v. State of Rajasthan

2023-12-21

MANINDRA MOHAN SHRIVASTAVA, PRAVEER BHATNAGAR

body2023
ORDER : Heard. 2. This appeal is directed against the order dated 12.05.2023 passed by the learned Single Judge, whereby the writ petition filed by the appellant-petitioner has been dismissed. 3. Quintessential facts necessary for decision of the controversy involved in the instant appeal are stated infra. 4. The petitioner (appellant-herein) was initially appointed on the post of Teacher on 30.12.1985 on which he continued till his services were terminated vide order dated 08.01.1993. The order was assailed by filing S.B. Civil Writ Petition No.254/1993. That writ petition came to be finally disposed of vide order dated 09.08.1995, relying upon earlier orders passed by this Court. Thereafter, the appellant-petitioner was reinstated in service vide order dated 10.03.2000 on the undertaking that he will not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment. The appellant-petitioner thereafter continued in service and retired upon attaining the age of superannuation on 30.06.2017. While preparing appellant-petitioner's case of pension, the entire period of service during which he had remained out of employment was not counted. This resulted in reduction in qualifying period of services for the purposes of computing pension. The action of the respondent was challenged by the appellant-petitioner by filing writ petition. The learned Single Judge, however, dismissed the writ petition on the ground that the appellant-petitioner having given undertaking that he would not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment, is estopped and not entitled to get the reliefs sought by him that the intervening period during which he remained out of employment should be counted for the purpose of pension. 5. Submission of learned counsel for the appellant is that the undertaking given on 10.03.2000 which resulted in his reinstatement vide order of reinstatement dated 10.03.2000 passed by the State Government, does not have any effect and impact insofar as the computation of qualifying period of services for the purposes of grant of pension is concerned. His submission is that it was not a case of fresh appointment, but a case of reinstatement. His submission is that it was not a case of fresh appointment, but a case of reinstatement. If the appellant-petitioner in the unequal bargaining situation had given up his claim for salary and arrears of pay in respect of the intervening period, that will not result in depriving him of the benefit of qualifying services of the period during which he remained out of employment and such an action of the respondents is against the order of reinstatement dated 10.03.2000 and subsequent order passed by the State Government on 14.03.2017. 6. Per contra, learned Additional Advocate General would argue that when the appellant-petitioner was reinstated in service, he had given undertaking that he will not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment. He would further submit that though the State Government had passed certain orders, the order dated 14.10.2015 passed by the Block Elementary Officer clearly stated that the appellant-petitioner has been given fresh appointment on 20.04.2000 and confirmed on 20.04.2002. Therefore, the intervening period could not be taken into consideration for any purposes whatsoever. He would further submit that even if the appellant-petitioner is treated as having been reinstated in service vide order dated 10.03.2000 and intervening period regularized as extraordinary leave without pay, in view of provision contained in Rule 20 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short 'the Rules of 1996'), that period could not be counted for the purposes of pension. 7. It is not in dispute that the appellant-petitioner was initially appointed on temporary basis vide order dated 28.12.1985 after his selection and on a regular pay-scale. It appears however that there was some dispute with regard to the diploma certificate which was obtained by the appellant-petitioner from Jharparkar Institute, Bombay which led to termination of his services vide order dated 08.01.1993. This order was assailed by the appellant-petitioner by filing a writ petition wherein, an order was passed by learned Single Judge of this Court disposing of the writ petition on similar lines as was passed in similar cases. 8. In view of the aforesaid decision, the case of the petitioner-appellant was considered by the respondents and having found that the certificate of diploma cannot be said to be a forged one, an order of reinstatement was passed on 10.03.2000. 8. In view of the aforesaid decision, the case of the petitioner-appellant was considered by the respondents and having found that the certificate of diploma cannot be said to be a forged one, an order of reinstatement was passed on 10.03.2000. However, it appears that while passing the order of reinstatement in service, the appellant-petitioner was asked to give an undertaking that he would not claim salary for the intervening period. Compelled by the circumstances as the appellant-petitioner was in need of employment, he gave an undertaking that he will not claim salary for the intervening period. The order dated 10.03.2000 which was passed by the State Government clearly shows in unmistakable terms that this was an order of reinstatement in the eye of law and could, by no stretch of imagination, be said to be an order of fresh appointment. This is clear from the subsequent order passed by the State Government on 14.05.2017 which also regularizes the intervening period from 09.01.1993 to 19.04.2000 as extraordinary leave. The order says that in respect of this period, appellant-petitioner will not be entitled to any arrears of pay. 9. Irrespective of whether the appellant-petitioner was entitled to pay in respect of intervening period, it is clear that the reinstatement of the petitioner vide order dated 10.03.2000 was pursuant to a direction issued by this Court. Therefore, the effect of reinstatement was that he shall be deemed to continue in service without any break. That is the legal consequences which flew from the order of reinstatement, as distinguished from an order of fresh appointment. Despite there being an order passed by the State Government on 10.03.2000 reinstating the appellant-petitioner in service, an Officer subordinate to the State Government passed an order on 14.10.2015 as if the appellant-petitioner was given an appointment on 20.04.2000. That order does not supersede or nullify the order of the State Government but is controlled and subject to the order of the State Government. If all these orders dated 10.03.2000, 14.10.2015 and 14.03.2017 are read together, it is clear that it was a case of reinstatement and not a case of fresh appointment. 10. The order dated 10.03.2000 did not come in the way of the appellant-petitioner in claiming that the entire period during which he remained out of employment should be counted for the purposes of pension. 11. 10. The order dated 10.03.2000 did not come in the way of the appellant-petitioner in claiming that the entire period during which he remained out of employment should be counted for the purposes of pension. 11. Much reliance has been placed on the provisions contained in Rule 20 of the Rules, 1996 by the learned Additional Advocate General to submit that in respect of the intervening period, salary and arrears of pay were not granted, therefore, the entire period shall be excluded for the purposes of counting pensionable service. 12. We are unable to accept the submission. Rule 20 of the Rules of 1996 only deals with a situation where an employee is in service and he avails extraordinary leave without getting any pay. Present is a different situation. It was a case where appellant-petitioner was illegally terminated from services and after judicial intervention, he was reinstated in service. Therefore, undertaking given by the appellant-petitioner that he will not claim salary in respect of intervening period, will not come in the way of appellant-petitioner claiming benefit of the period during which he remained out of employment for the purposes of pension. Rule 20 of the Rules of 1996 in such case is not applicable. If Rule 20 of the Rules of 1996 is interpreted to mean that such a rule would be applicable despite reinstatement under a judicial order, the rule itself would become arbitrary. Therefore, an interpretation which save the constitutionality of Rule 20 of the Rules of 1996, has to be adopted. In such a case, therefore, Rule 20 of the Rules of 1996 will not come in way for the purposes of counting the period during which a person remained out of employment till he was reinstated as a result of judicial intervention. 13. We find that the learned Single Judge has declined the relief only on the ground that the order dated 10.03.2000 operates as estoppel to claim benefit of counting period for the purposes of pension. An undertaking given by the appellant-petitioner that he would not claim salary or arrears of the intervening period, can, by no stretch of imagination, be taken as an undertaking not to claim any other benefit including a claim for counting the period during which he remained out of employment until he was reinstated in service, for the purposes of qualifying service to earn pension. 14. 14. In view of the above, we are unable to uphold the order passed by the learned Single Judge and the same is set aside. The appeal filed by the appellant is allowed in the manner and to the extent that the respondents shall count the entire period during which the appellant-petitioner remained out of service for the purposes of pension. The pension case of the appellant-petitioner shall be revised within a period three months. After revision of the pension case, the entire arrears of pension to which appellant-petitioner is found entitled, shall be paid to him within a further period of two months. The respondents shall continue to pay pension on the basis of revised pension, as directed by this court.