STATE OF RAJASTHAN & OTHERS versus O.P. GUPTA on 19 September 2022

[2022] 7 S.C.R. 321

STATE OF RAJASTHAN & OTHERS

v.

O.P. GUPTA

(Special Leave Petition (Civil) No. 16734 of 2022)

SEPTEMBER 19, 2022

[INDIRA BANERJEE AND J.K. MAHESHWARI, JJ.]

Service Law: Pension – Respondent was initially appointedin 1967 as Assistant Charge Man in the Rajasthan AgricultureEngineering Board from where his services were transferred to theRajasthan State Agro Industry Corporation, where he worked till12[th] April 1977 – Respondent resigned from Rajasthan State AgroIndustry Corporation to take up appointment as Assistant Director(Agro-Industries) in the Department of Industries in the State ofRajasthan, after being selected through the RPSC – High Courtheld that service rendered by respondent/writ petitioner prior toresignation from the Rajasthan State Agro Industry Corporationshould be counted for the purpose of pension – Held: There can beno doubt that resignation from service may entail forfeiture of pastservice – However, sub-rule (2) of r.25 of the Rajasthan CivilServices (Pension) Rules, 1996 carves out an exception – The saidsub-rule clarifies that a resignation with proper permission to takeup another appointment, whether temporary or permanent, underthe Government shall not entail forfeiture of past service –Respondent applied for the post of Assistant Director (Agro-Industries), while he was still in service of the Rajasthan State AgroIndustry Corporation, which is also an entity fully controlled by theState of Rajasthan – Respondent having retired after working forabout 26 years, the State cannot raise the question of proof of priorpermission before resignation, more so when the appointment hadbeen made through the RPSC to a Government post – It is to bepresumed that prior permission had been taken unless the contrarycould be established by the State – High Court rendered a justdecision based on a purposive interpretation of Rule 25(2) of theRules applied to the admitted facts on record. The interpretationgiven by the High Court to Rule 25(2) of the Rules is a plausibleinterpretation.

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[2022] 7 S.C.R.

AConstitution of India: The State is bound by the fundamentalrights of its employees under Arts.14 to 16 of the Constitution ofIndia – It is now well settled that arbitrariness violates the right toequality under Arts.14 to 16 of the Constitution of India.

Writ jurisdiction: Relief under Art.226 of the Constitution ofBIndia being discretionary, the Courts might in their discretion refuseto entertain the Writ Petition, where there is gross delay on the partof the Writ Petitioner, particularly, where the relief sought would, ifgranted, unsettle things, which are already settled – In the instantcase, although there was a delay of six years in filing the writ petition,however, the laws of limitation do not apply to exercise of jurisdictionCunder Art.226 of the Constitution of India – Respondent-WritPetitioner is claiming pension, which is a life long benefit – Denialof pension is a continuing wrong – When financial rules framed bythe Government such as Pension Rules are capable of moreinterpretations than one, the Courts should lean towards thatDinterpretation which goes in favour of the employee.

Dismissing the Special Leave Petition, the Court

Conclusion

Dismissing the Special Leave Petition, the Court HELD: 1.1 There can be no doubt that resignation fromservice may entail forfeiture of past service. However, sub-rule(2) of Rule 25 of the Rules carves out an exception. The saidEsub-rule clarifies that a resignation with proper permission totake up another appointment, whether temporary or permanent,under the Government shall not entail forfeiture of past service.The Respondent was selected through the RPSC. He applied forthe post of Assistant Director (Agro-Industries), while he wasFstill in service of the Rajasthan State Agro Industry Corporation,which is also an entity fully controlled by the State of Rajasthan.The Respondent having retired after working for about 26 years,the Petitioner - State cannot raise the question of proof of priorpermission before resignation, more so when the appointmenthad been made through the RPSC to a Government post. It is toGbe deemed that there has been disclosure of past service andthe application has been made through proper channel byobtaining the requisite approvals. [Paras 23, 24, 25][328-B-F]

1.2 It is to be presumed that prior permission had beentaken unless the contrary could be established by the State. Maybe there was a delay of six years in filing the Writ Petition,however, it is well settled that the laws of limitation do not applyto exercise of jurisdiction under Article 226 of the Constitutionof India. Relief under Article 226 of the Constitution of Indiabeing discretionary, the Courts might in their discretion refuseto entertain the Writ Petition, where there is gross delay on thepart of the Writ Petitioner, particularly, where the relief soughtwould, if granted, unsettle things, which are already settled. Inthis case, the Respondent-Writ Petitioner is claiming pension,which is a life long benefit. Denial of pension is a continuing wrong.This Court cannot also be oblivious to the difficulties of a retiredemployee in approaching the Court, which could include financialconstraints. It is settled law that when financial rules framed bythe Government such as Pension Rules are capable of moreinterpretations than one, the Courts should lean towards thatinterpretation which goes in favour of the employee. [Paras 26, 27, 28][328-F-H; 329-A-B]

N. Suriyakala v. A. Mohandossand Ors. (2007) 9 SCC196 : [2007] 2 SCR 419; Citing Bengal Chemical andPharmaceutical Works Ltd. v. Employees AIR 1959 SC633 : [1959] 2 Suppl. SCR 136 – relied on.

Case Law Reference

[2007] 2 SCR 419relied onPara 29[1959] 2 Suppl. SCR 136relied onPara 30

CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) No. 16734 of 2022.

From the Judgment and Orders dated 28.11.2019 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal(Writ) No. 443 of 2018.

Dr. Manish Singhvi, Sr. Adv., B. S. Rajesh Agrajit, Arpit Parkash,D. K. Devesh, Advs. for the Petitioners.

Ms. Archana Pathak Dave, Avnish Dave, Ms. Vanya Gupta,Kumar Prashant, Advs. for the Respondent.

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324SUPREME COURT REPORTS

[2022] 7 S.C.R.

AThe Judgment of the Court was delivered byINDIRA BANERJEE, J.

1. Delay Condoned.

2. This Special Leave Petition has been filed challenging the finalBjudgment and order dated 28[th] November 2019, in D.B. Special AppealWrit No. 443 of 2018 passed by the High Court of Judicature for RajasthanBench at Jaipur, whereby the High Court dismissed the Writ Appealfiled by the Petitioners and upheld the judgment of the Single Benchdated 5[th] May 2017 in S.B. Civil Writ Petition No. 5879 of 2009, wherebythe Single Judge had allowed the Writ Petition filed by the Respondent.C

3. The Respondent was initially appointed as an Assistant ChargeMan in the Rajasthan Agriculture Engineering Board, Department ofAgriculture, Government of Rajasthan w.e.f. 13[th] January 1967.

4. The Engineering Board was subsequently merged with theDRajasthan State Agro Industry Corporation. Accordingly, the services ofthe Respondent were transferred to the Rajasthan State Agro IndustryCorporation vide transfer order dated 8[th] July 1970, on the same payscale. He worked with Rajasthan State Agro Industry Corporationcontinuously till 12[th] April 1977.

5. Pursuant to an advertisement dated 16[th] June 1976 issued byEthe Rajasthan Public Service Commission (hereinafter referred to as“RPSC”), the Respondent applied for the post of Assistant Director(Agro-Industries). The Respondent was selected for the post of AssistantDirector (Agro-Industries), Department of Industries, State of Rajasthan.

6. The Respondent was appointed as Assistant Director (Agro-FIndustries), Department of Industries, State of Rajasthan by an orderdated 7[th] April 1977. According to the Respondent, he joined service inthe Department of Industries on 16[th] April 1977.

7. The Respondent while serving in the Department of Industries,attained the age of superannuation and retired on 30[th] April 2003 fromGthe post of Additional Director of Industries, Headquarter, Jaipur.However, while counting the length of service of the Respondent for thepurpose of calculating pension and other retiral benefits, the Petitionersdid not count the tenure from 13[th] January 1967 to 12[th] April 1977 (i.e.the period for which the Respondent worked for the Rajasthan AgricultureHEngineering Board and the Rajasthan State Agro Industry Corporation).

8. The Respondent submitted representations to the Departmentof Industries requesting that his service tenure from 13[th] January 1967to 12[th] April 1977 be counted for the purposes of his pension and retiralbenefits. However, the request for counting the service tenure from13[th] January 1967 to 12[th] April 1977, was not granted.

9. Aggrieved, the Respondent filed S.B. Civil Writ Petition No.5879 of 2009 before the Single Judge, Rajasthan High Court on or about20[th] March 2009. The moot point for consideration before the SingleJudge was, whether service rendered by the Respondent/Writ Petitionerprior to resignation from the Rajasthan State Agro Industry Corporation,should be counted for the purpose of pension.

10. By a Judgment and Order dated 5[th] May 2017, the SingleBench allowed S.B. Civil Writ Petition No. 5879 of 2009 and held thatthe service rendered by the Respondent with the Rajasthan AgricultureEngineering Board and the Rajasthan State Agro Industry Corporation,was liable to be counted, while computing pension/other pensionarybenefits of the Respondent.

11. The Writ Petition was disposed of with a direction to thePetitioners to count the earlier period of service rendered by theRespondent with the Rajasthan Agriculture Engineering Board and theRajasthan State Agro Industry Corporation to compute the totalpensionable service of the Respondent and release his pension and retiralbenefits including arrears of pension with interest @ 9% p.a. within aperiod of three months from the date of the submission of the certifiedcopy of the order. According to the Respondent, a copy of the judgmentand order dated 5[th] May 2017 was submitted to the Petitioners on 15[th]May 2017 by registered post. However, the Petitioners did not complywith the Judgment and order.

12. The Petitioner–State filed an appeal being D.B. Special AppealWrit No. 443 of 2018 against the judgment and order dated 5[th] May2017 before the Division Bench. The Respondent filed a ContemptPetition, being S.B. Civil Contempt Petition No. 265 of 2018 allegingnon-compliance of the Judgment and order dated 5[th] May 2017 in spiteof knowledge thereof. It was submitted that a copy of the judgment andorder had been served on the Petitioners on 15[th] May 2017 by registeredpost.

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13. By an order dated 14[th] March 2018 in S.B. Civil ContemptPetition No. 265 of 2018, the High Court directed the Petitioners tocomply with the judgment and order dated 5[th] May 2017 within 15 days,failing which the Additional Chief Secretary, Department of Industries,Government of Rajasthan would have to be present in Court and explainthe reasons/circumstances for non-compliance.

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14. By the impugned Judgment and Order dated 28[th] November2019, the Division Bench of the High Court dismissed the Writ Appealbeing D. B. Special Appeal Writ No. 443 of 2018 with the followingobservations:

C“...Admittedly, service of the respondent under the RajasthanAgriculture Engineering Board was pensionable. As per Rule25(2) of the Rajasthan Civil Services (Pension) Rules, 1996,resignation shall not entail forfeiture of past service if it hasbeen submitted to take up, with proper permission, anotherappointment whether temporary or permanent, under theDGovernment where service qualifies. Hence, learned SingleJudge has rightly held service rendered by the respondentwith Rajasthan Agriculture Engineering Board and RajasthanAgro Industry Corporation was liable to be counted whilecomputing pension/other pensionary benefits of theErespondent.”

15. Rule 25 of the Rajasthan Civil Services (Pension) Rules, 1996hereinafter referred to as “the Rules” reads as follows:

“25. Forfeiture of Service on resignation

(1) Resignation from a service or a post, entails forfeiture ofpast service.

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(2) A resignation shall not entail forfeiture of past service if ithas been submitted to take up, with proper permission, anotherappointment, whether temporary or permanent, under theGovernment where service qualifies.

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(3) Interruption in service in a case falling under sub-rule(2), due to the two appointments being at different stations,not exceeding the joining time admissible under the rules oftransfer, shall be covered by grant of leave of any kind dueto the Government servant on the date of relief or by formal H

condonation to the extent to which the period is not coveredby leave due to him.”

16. Admittedly, the Respondent was initially appointed as AssistantCharge Man in the Rajasthan Agriculture Engineering Board from wherehis services were transferred to the Rajasthan State Agro IndustryCorporation, where he worked till 12[th] April 1977. Thereafter he wasappointed Assistant Director (Agro-Industries) in the Industry Departmentand submitted his resignation from the Rajasthan State Agro IndustryCorporation. Admittedly, the service of the Respondent under theRajasthan Agriculture Engineering Board and the Rajasthan State AgroIndustry Corporation was pensionable, as found by the High Court.

17. Dr. Manish Singhvi, learned Senior Counsel, appearing onbehalf of the Petitioners argued that the High Court had misconstruedRule 25(2) of the Rules. He argued that resignation entails forfeiture ofpast service with the Rajasthan State Agro Industry Corporation, for thepurpose of pension.

18. The Respondent resigned from Rajasthan State Agro IndustryCorporation to take up appointment as Assistant Director (Agro-Industries) in the Department of Industries in the State of Rajasthan,after being selected through the RPSC.

19. The Division Bench and the Single Bench of the High Courthave concurred. The effective and concurrent factual finding of theDivision Bench and the Single Bench of the High Court, that theRespondent had resigned with proper permission to take up anotherappointment, under the Government, for which he was qualified, doesnot call for interference under Article 136 of the Constitution of India.

20. Dr. Singhvi, emphatically argued that :

i.the Writ Petition was filed by the Respondent after six years.

ii. the Respondent was appointed to a higher post in the IndustryDepartment. As such his past employment wasinconsequential.

iii. There was no proof of prior permission before resignationfrom Rajasthan State Agro Industry Corporation.

21. Dr. Singhvi submitted that the appointment was a freshappointment for which past service was inconsequential. Dr. Singhvi, A

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Aemphatically argued that, in service jurisprudence, resignation necessarilyleads to cessation from service and entails forfeiture of past service.The stand taken by the State is arbitrary, unreasonable and misconceived.

22. The State is bound by the fundamental rights of its employeesunder Articles 14 to 16 of the Constitution of India. It is now well settledBthat arbitrariness violates the right to equality under Articles 14 to 16 ofthe Constitution of India.

23. There can be no doubt that resignation from service may entailforfeiture of past service. However, sub-rule (2) of Rule 25 of the Rulescarves out an exception. The said sub-rule clarifies that a resignationCwith proper permission to take up another appointment, whethertemporary or permanent, under the Government shall not entail forfeitureof past service.

24. At the cost of repetition, it is reiterated that the Respondentwas selected through the RPSC. He applied for the post of AssistantDDirector (Agro-Industries), while he was still in service of the RajasthanState Agro Industry Corporation, which is also an entity fully controlledby the State of Rajasthan.

25. The Respondent having retired after working for about 26years, the Petitioner - State cannot raise the question of proof of priorEpermission before resignation, more so when the appointment had beenmade through the RPSC to a Government post. It is to be deemed thatthere has been disclosure of past service and the application has beenmade through proper channel by obtaining the requisite approvals.

26. It is to be presumed that prior permission had been takenFunless the contrary could be established by the State. May be there wasa delay of six years in filing the Writ Petition, however, it is well settledthat the laws of limitation do not apply to exercise of jurisdiction underArticle 226 of the Constitution of India. Relief under Article 226 of theConstitution of India being discretionary, the Courts might in theirdiscretion refuse to entertain the Writ Petition, where there is gross delayGon the part of the Writ Petitioner, particularly, where the relief soughtwould, if granted, unsettle things, which are already settled.

27. In this case, the Respondent-Writ Petitioner is claiming pension,which is a life long benefit. Denial of pension is a continuing wrong.This Court cannot also be oblivious to the difficulties of a retired employeeHin approaching the Court, which could include financial constraints.

28. It is settled law that when financial rules framed by theGovernment such as Pension Rules are capable of more interpretationsthan one, the Courts should lean towards that interpretation which goesin favour of the employee.

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29. Ms. Archana Pathak Dave, counsel appearing on behalf ofthe Respondent argued that Article 136 of the Constitution of India doesBnot create a regular forum of Appeal. It is only a residual provisionwhich enables this Court to interfere with the judgment and order of anyCourt or Tribunal in India, in its discretion, as observed by this Court inN. Suriyakala v. A. Mohandoss and Ors.[1].

30. Citing Bengal Chemical and Pharmaceutical Works Ltd.v. Employees[2], Ms. Dave argued that since power under Article 136 ofthe Constitution of India was discretionary, this Court is not bound to setaside an order under Article 136, even if it was not in conformity withlaw.

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31. The High Court has rendered a just decision based on apurposive interpretation of Rule 25(2) of the Rules applied to the admittedfacts on record. The interpretation given by the High Court to Rule25(2) of the Rules is a plausible interpretation.

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32. We, therefore, find no grounds to interfere with the impugnedjudgment and order passed by the High Court.

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33. The Special Leave Petition is, accordingly, dismissed.

Devika Gujral

SLP dismissed.

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1 (2007) 9 SCC 196

2 AIR 1959 SC 633 (at 635)

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