STATE OF ODISHA & ORS. versus MANJU NAIK on 4 December 2019

[2019] 14 S.C.R. 473

STATE OF ODISHA & ORS.

v.

MANJU NAIK

(Civil Appeal No. 9204 of 2019)

DECEMBER 04, 2019

[R. BANUMATHI, A.S.BOPANNA ANDHRISHIKESH ROY, JJ.]

Orissa Civil Services (Pension) Rules, 1992: rr. 39, 47(5)(i)and 49 – Invalid pension –Whether the minimum qualifying serviceprescribed under the Pension Rules can be ignored for the purposeof consideration of invalid pension under r.39 of the Pension Rules– Respondent’s husband retired from service on the ground of mentalincapacity and died soon thereafter – His net qualifying service forthe benefits under the Pension Rules was 4 years 6 months and 29days only – Respondent (widow of the employee) was paid gratuityas also the other terminal benefits – After 14 years of death of theemployee, the respondent approached the Tribunal for fixation ofpay for her husband in the revised scale with effect from 1.1.1996till his superannuation and also for family pension benefits –Respondent never, however, prayed for invalid pension before theTribunal – Yet, Tribunal ordered for invalid pension for therespondent’s husband, under r.39 – High Court upheld the order ofthe Tribunal – On appeal, held: Respondent was paid the servicegratuity and she received the same, without any demur – She neverraised any claim for invalid pension either at the time of retirementor even when she approached the Tribunal i.e. 14 years later –Nevertheless, the Tribunal went beyond the prayers in the O.A. andordered for invalid pension and then following his death, orderedfor family pension for the widow – In declaring such entitlement,High Court and the Tribunal ignored the qualifying service of 10years as prescribed in the Pension Rules – Respondent’s husbandhaving not served for 10 years was not entitled for regular pension– For the same reason, he cannot also be held entitled to invalidpension.

Service Law: Pension – Invalid pension – Entitlement for –Pension is earned by stint of continuity and longevity of service

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Aand minimum qualifying service should, therefore, be understoodas the requirement for invalid pension as well – Pension Rules canbe harmoniously construed in this manner and in that event, thereshall be no clash between different provisions in the said Rules –The condition of qualifying service prescribed in the Pension Rulesmust be satisfied to become eligible for invalid pension – For thoseBwith less than 10 years’ service, the Pension Rules provide forgratuity payment and therefore, for invalid pension, qualifying yearsof service, cannot be ignored – The different provisions of thePension Rules cannot be read in isolation and must be construedharmoniously and the requirement of qualifying service cannot beCsaid to be irrelevant for claiming different service benefits underthe same Rules – Service law – Orissa Civil Services (Pension) Rules,1992.

Interpretation of statutes: Harmonious construction – PensionRules – Construction of – When the question arises as to how certainprovisions of the Pension Rules are to be understood, it is appropriateDto read the provision in its context which would mean reading thestatute as a whole – In other words, a particular provision of thestatute should be construed with reference to other provisions ofthe same statute so as to construe the enactment as a whole – Aninterpretation which involve conflict with two provisions of the sameEstatute should be avoided and effort should be made for harmoniousconstruction – The provision of a Rule cannot be used to defeatanother Rule unless it is impossible to effect reconciliation betweenthem – Orissa Civil Services (Pension) Rules, 1992.

Allowing the appeal, the CourtF

Conclusion

Allowing the appeal, the CourtF

HELD: 1. The net qualifying service of respondent’shusband for the benefits under the Pension Rules was 4 years 6months and 29 days only. For government servants not completingten years qualifying service prescribed in Rule 47(5)(i) of thePension Rules, the service gratuity is to be paid at a uniform rateGof half month’s emolument for every completed six months periodof service. Such gratuity benefit as also the other terminal benefitslike GPF, unutilized Earned Leave, Death-cum-RetirementGratuity (DCRG), etc. were sanctioned and paid to the widow ofthe employee. Moreover, respondent was also appointed as asweeper under the Rehabilitation Assistance Scheme and she isH

in regular government service, since 12.6.2006. The gratuity andother benefits and the compassionate appointment was acceptedby the respondent without raising any additional claim towardsinvalid pension for her deceased husband, who retired on6.7.1996. Long after his death on 24.7.1996, the respondentapproached the Tribunal to belatedly pray for firstly, fixation ofpay for her husband in the revised scale and also to sanctionfamily pension benefits for the applicant, following the death ofthe government employee along with all consequential andterminal benefits. The respondent never however prayed forinvalid pension before the Tribunal. Yet, the Tribunal ordered forinvalid pension for the respondent’s husband, under Rule 39 ofthe Pension Rule. When the Tribunal’s decision was challengedin the High Court, the State specifically contended that Rule 39has to be read together with Rule 47 of the Pension Rules andthe specified qualifying service must be satisfied even for claiminginvalid pension. But the High Court without adverting to thespecific contention raised by the appellants, dismissed the writpetition with a cryptic order observing that the Tribunal has passeda reasoned order and that the husband of the respondent isentitled to invalid pension under Rule 39 of the Pension Rules.[Paras 14-17][480-D-H; 481-A-C]

2. An employee becomes entitled to pension by stint of hislong service for the employer and, therefore, it should be seenas a reward for toiling hard and long for the employer. The PensionRules provide for a qualifying service of 10 years for suchentitlement. When the question arises as to how certainprovisions of the Pension Rules are to be understood, it wouldbe appropriate to read the provision in its context which wouldmean reading the statute as a whole. It would also be necessaryto avoid an interpretation which will involve conflict with twoprovisions of the same statute and effort should be made forharmonious construction. Pension is earned by stint of continuityand longevity of service and minimum qualifying service shouldtherefore be understood as the requirement for invalid pensionas well. [Para 20][481-G-H; 482-A-C]

Union of India and Another v. Bashirbhai R. Khiliji(2007) 6 SCC 16 : [2007] 6 SCR 1060 – relied on.

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A3. In a case like this, the need for compassion and thecompliance of the norms has to be balanced. The allowable gratuitybenefits were granted on account of the respondent’s husbandand after he died, the widow was appointed (on 12.6.2006) in agovernment job under the Rehabilitation Assistance Scheme.Thus, the needed means of sustenance was provided to theBdeceased’s family. [Para 24][484-C-D]

4. The respondent’s husband had not served for ten yearsand was therefore, he disentitled for regular pension. For thesame reason, he cannot also be held entitled to invalid pension.The different provisions of the Pension Rules cannot be read inCisolation and must be construed harmoniously and therequirement of qualifying service cannot be said to be irrelevantfor claiming different service benefits under the same Rules.[Para 25][484-D-E]

Case Law Reference

D[2007] 6 SCR 1060relied onPara 22

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9204of 2019.

From the Judgment and Order dated 29.11.2016 of the High CourtEof Orissa, Cuttack in W.P. (C) No. 14413 of 2016.

Ms. Anindita Pujari, Om Narayan, Advs. for the Appellants.

Kedar Nath Tripathy, Adv. for the Respondent.

The Judgment of the Court was delivered byFHRISHIKESH ROY, J.

1. Leave granted.

2. This appeal arises out of the judgment and order dated29.11.2016 in W.P. (C)No. 14413 of 2016 whereunder the High CourtGof Orissa has dismissed the appellants’ challenge to the order dated3.8.2015 of the Odisha Administrative Tribunal (hereinafter referred toas “the Tribunal”) under which the authorities were directed to considersanction of invalid pension in favour of late Sagar Naik (husband of therespondent) and thereafter settle family pension in favour of the applicant,under the provisions of the Orissa Civil Services (Pension) Rules-H1992 (hereafter referred to as “the Pension Rules”).

3. The respondent filed the OA No. 18(B)/2010 before theTribunal praying for fixation of pay of late Sagar Naik and for disbursalof his accrued financial benefits with effect from 1.1.1996 until he wasretired on 6.7.1996 on being mentally incapacitated. The applicant alsoprayed for sanction of family pension from the date of death of herhusband i.e. 24.7.1996.

4. The applicant projected before the Tribunal that her husbandon being found incapacitated was made to retire from service on 6.7.1996and he died soon thereafter on 24.7.1996 and therefore, the widow isentitled to family pension. She also tried to make out a case for grant ofinvalid pension in favour of her late husband.

5. Opposing the prayers, the Government Advocate on behalf ofthe State contended before the Tribunal that the applicant’s husband hadnot rendered the qualifying period of service so as to make him eligiblefor pension. Opposing the claim for invalid pension for the deceasedhusband, the appellants contended that Rule 39 of the Pension Rulesgoverning invalid pension has to be read together with Rule 47 whichspecifies the qualifying service of ten years for grant of pension andaccordingly it was argued that the applicant is disentitled to any relieffrom the Tribunal.

6. Notwithstanding the State’s above contention, the Tribunalconcluded that the applicant’s husband is entitled to invalid pension underRule 39 of the Pension Rules and accordingly, the authorities weredirected to sanction the invalid pension for the applicant’s husband andafter his death, to settle the family pension for the applicant, afterregularizing the services of the deceased employee.

7. The above decision was challenged by the appellants throughW.P.(C) No. 14413/2016 where the State projected that Rule 39 has tobe read jointly with Rule 47 of the Pension Rules and if Rules areapplied as it should be, conjointly, the deceased government employee isineligible for invalid pension. However, without adverting to the specificcontention raised by the appellants, the High Court observed that areasoned order was passed by the Tribunal declaring entitlement forthe invalid pension and accordingly the Tribunal’s impugned order wasleft undisturbed and the writ petition came to be dismissed.

8. Representing the State of Odisha and other appellants,Ms. Anindita Pujari, learned counsel submits that the deceased A

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Agovernment employee was unauthorizedly absent from service from1.2.1995 to 23.7.1995 and was under suspension from 24.7.1995 to6.7.1996 and this period cannot be counted for determining the qualifyingservice. Thus, in his credit, the deceased employee had net qualifyingservice of 4 years 6 months and 29 days until he was superannuated on6.7.1996. The learned counsel then refers to the provisions of RuleB47(2)(b) and 47(5)(i) to argue that without completing the qualifyingservice of ten years, the deceased employee is ineligible for pension.Due to such non-entitlement, the widow was granted the alternate benefiti.e., the service gratuity amount by computing the entitlement under Rule47(5)(i) of the Pension Rules.C

9. On account of the short duration of service rendered by thedeceased employee, the State’s counsel then argues that the respondent’shusband cannot be granted invalid pension under Rule 39 as the provisionhas to be conjointly read with Rule 47 and Rule 56 of the PensionRules which specify the qualifying service of ten years and also theDconsequences for those who do not satisfy the eligibility criterion forqualifying service.

10. Per-contra, Mr. Kedar Nath Tripathi, learned counsel for therespondent/applicant, would however argue that the governmentemployee was allowed to retire from service on 6.7.1996 on the groundEof mental incapacity and since invalid pension is envisaged under Rule39 of the Pension Rules for such prematurely retiring employeessuffering permanent incapacity, the Tribunal and the High Court haverightly ordered for grant of invalid pension for the respondent’s husband.

11. The learned counsel then submits that since the governmentFservant died within few days of retirement, firstly he must be paid theinvalid pension under Rule 39 and after his death on 24.7.1996, therespondent as the widow, should be held entitled to family pension.

12. The issue to be considered here is whether the minimumqualifying service prescribed under the Pension Rules can be ignoredGfor the purpose of consideration of invalid pension under Rule 39 of thePension Rules. As a corollary, whether the Tribunal or the High Courterred in directing invalid pension for a government employee who didnot have the qualifying service, prescribed under the Pension Rules.

13. At this stage, the relevant provisions of the Pension Rulesare extracted hereinbelow for ready reference:-H

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .

39. Invalid Pension – (1) invalid pension may be granted if aGovernment servant retires from the service on account ofbodily or mental infirmity which permanently incapacitateshim for the service.

(2) A Government servant applying for an invalid pensionshall submit a medical certificate of incapacity from thefollowing medical authority, namely : - (a) Medical Board, in the case of all Gazetted and speciallydeclared Gazetted Government servants, and (b) A Chief District Medical Officer or Medical Officer ofequivalent status in case of other Government servants.

47. Amount of pension (1)

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(b) In the case of Government servant retiring in accordancewith the provisions of these rules before completing qualifyingservice of thirty-three years, but after completing qualifyingservice of ten years, the amount of pension shall beproportionate to the amount of pension admissible underclause (a) and in no case the amount of pension shall be less than the minimum amount of pension admissible.

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(5) (i) In the case of a Government servant retiring inaccordance with the provisions of these rules beforecompleting qualifying service of ten years, the amount ofservice gratuity shall be paid at a uniform rate on half month’semoluments for every completed six monthly period of service.

56. Family Pension :

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(2) Without prejudice to the provisions contained in Sub-rule

(4) where a Government servant dies-

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(c ) After retirement from service and was on the date of deathin receipt of pension, or compassionate allowance, referredto in Chapter IV other than the pension referred to in rules43 and 44 the family of the deceased shall be entitled to familypension, the amount of which shall be determined inaccordance with the table below.

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14. The respondent’s husband, late Sagar Naik was appointed on22.8.1989 under the Rehabilitation Assistance Scheme as his father lateSuri Naik died in harness, while serving in the M.K.C.G. Medical CollegeCand Hospital. The appointee was however found to be suffering frommental incapacity and accordingly, on the basis of the medical certificateissued by the HoD of the Psychiatric Department of the S.C.B. MedicalCollege, Cuttack, the employee was retired from service on 6.7.1996 onthe ground of mental incapacity. The case paper reveals that the serviceof the employee was erratic, as he remained absent from 1.2.1995 toD23.7.1995 and was under suspension from 24.7.1995 to 6.7.1996. Thushis net qualifying service for the benefits under the Pension Rules wastaken as 4 years 6 months and 29 days only.

15. For government servants not completing ten years qualifyingservice prescribed in Rule 47(5)(i) of the Pension Rules, the serviceEgratuity is to be paid at a uniform rate of half month’s emolument forevery completed six months period of service. Such gratuity benefit asalso the other terminal benefits like GPF, unutilized Earned Leave, Death-cum-Retirement Gratuity (DCRG), etc. were sanctioned and paid to thewidow of the employee. Moreover, respondent was also appointed as aFsweeper under the Rehabilitation Assistance Scheme and she is in regulargovernment service, since 12.6.2006.

16. The gratuity and other benefits and the compassionateappointment was accepted by the respondent without raising anyadditional claim towards invalid pension for her deceased husband, whoGretired on 6.7.1996. Long after his death on 24.7.1996, the respondentapproached the Tribunal to belatedly pray for firstly, fixation of pay forher husband in the revised scale with effect from 1.1.1996 till hissuperannuation and also to sanction family pension benefits for theapplicant, following the death of the government employee (on 24.7.1996)along with all consequential and terminal benefits. The respondent never H

however prayed for invalid pension before the Tribunal. Yet, the Tribunalordered for invalid pension for the respondent’s husband, under Rule 39of the Pension Rules.

17. When the Tribunal’s decision was challenged in the HighCourt, the State specifically contended that Rule 39 has to be readtogether with Rule 47 of the Pension Rules and the specified qualifyingservice must be satisfied even for claiming invalid pension. But the HighCourt without adverting to the specific contention raised by the appellants,dismissed the writ petition with a cryptic order observing that the Tribunalhas passed a reasoned order and that the husband of the respondent isentitled to invalid pension under Rule 39 of the Pension Rules.

18. The requirement of completing the qualifying service of tenyears for receipt of pension is prescribed under Rule 47(2)(b) and forthose government employees who retire before completing the qualifyingservice, alternate relief is envisaged under the Pension Rules itself.How the service gratuity is to be computed, is also prescribed in Rule47(5)(1) of the Pension Rules.

19. The respondent’s husband was retired on the ground of mentalinfirmity and hence the service gratuity was paid and the widow hadreceived the same, without any demur. She never raised any claim forinvalid pension either at the time of retirement on 6.7.1996 or even whenshe approached the Tribunal i.e. 14 years later in the year 2010.Nevertheless, the Tribunal went beyond the prayers in the O.A. No.18(B)/2010 and ordered for invalid pension for late Sagar Naik and thenfollowing his death, ordered for family pension for the widow. In declaringsuch entitlement the High Court and the Tribunal however ignored thequalifying service of ten years as prescribed in the Pension Rules althoughthe State specifically argued that the qualifying service criterion has tobe satisfied not only for the regular pension but also for the invalid pensionsince both claims are to be considered under the very same PensionRules.

20. An employee becomes entitled to pension by stint of his longservice for the employer and, therefore, it should be seen as a rewardfor toiling hard and long for the employer. The Pension Rules providefor a qualifying service of 10 years for such entitlement. When thequestion arises as to how certain provisions of the Pension Rules are tobe understood, it would be appropriate to read the provision in its context A

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Awhich would mean reading the statute as a whole. In other words, aparticular provision of the statute should be construed with reference toother provisions of the same statute so as to construe the enactment asa whole. It would also be necessary to avoid an interpretation which willinvolve conflict with two provisions of the same statute and effort shouldbe made for harmonious construction. In other words, the provision of aBRule cannot be used to defeat another Rule unless it is impossible toeffect reconciliation between them. Pension as already stated is earnedby stint of continuity and longevity of service and minimum qualifyingservice should therefore be understood as the requirement for invalidpension as well. The Pension Rules can be harmoniously construed inCthis manner and in that event, there shall be no clash between differentprovisions in the said Rules.

21. The condition of qualifying service prescribed in the PensionRules must be satisfied to become eligible for invalid pension and thearguments made to the contrary that invalid pension can be claimedDunder Rule 39 without satisfying the stipulated qualifying servicementioned in the same Rules, do not appeal to us. The respondent’shusband who had served for lesser years then the 10 years qualifyingservice, was found entitled by his employers to service gratuity only,because of his premature retirement on the ground of mentalincapacitation and this is what is prescribed by the Pension Rules. TheEdues toward service gratuity was paid accordingly. The Pension Rulesdefinitely envisaged that there could be a situation where an employeemay not be eligible for pension benefits for not satisfying the prescribedqualifying service of 10 years. For those with less than 10 years’ service,the Pension Rules provide for gratuity payment and therefore, it is difficult Ffor us to conclude that for invalid pension, qualifying years of service,can be ignored.

22. The above view of ours is supported by the ratio in Union ofIndia and Another Vs. Bashirbhai R. Khiliji[1], where this Court wasconsidering claim for invalid pension for an armed constable in the CRPFGwho suffered from pyrogenic meningitis and neurosensory deafness(bilateral). In that case, the CRPF personnel was declared unfit for activeduty, and he was invalidated from service. He applied to authorities forinvalid pension but that was rejected on the ground that he had notcompleted the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that sincethe CRPF Constable’s invalidity was 100 per cent, he was entitled toinvalid pension and the stipulation of 10 years of qualifying service couldnot be invoked to deny him the invalid pension. However, Justice A.K.Mathur, speaking for a two judge Bench of this Court while interpretingsimilar provisions in the applicable Rules, negated the High Court’s viewand pronounced on the issue of qualifying service for invalid pension, inthe following manner:- “. . . . . . . . . . . . . . . . . . . . . .

9. We are presently concerned with two provisions of the Rulesi.e., Rule 38 and 49. Rule 38, as reproduced above, contemplatesthe invalid pension. The procedure has been mentioned thereini.e. in case an incumbent retires from service on account of bodilyor mental infirmity which permanently incapacitated him for theservice, then a medical certificate of incapacity shall be given bythe authorities concerned and in particular Form 23 the same maybe applied before the competent authority. It is true that thequalifying service is not mentioned in Rule 38 but Rule 49 whichdeals with the amount of pension stipulates that a governmentservant retiring in accordance with the provisions of these Rulesbefore completing qualifying service of ten years, the amount ofservice gratuity shall be calculated at the rate of half month’semoluments for every completed six-monthly period of qualifyingservice. Therefore, the minimum qualifying service of ten yearsis mentioned in Rule 49. The word “qualifying service” has beendefined in Rule 3(1)(q) of the Rules which read as under:

“3. (1) (q) ‘qualifying service’ means service rendered while onduty or otherwise which shall be taken into account for the purposeof pensions and gratuities admissible under these Rules;”

10. Therefore, the minimum qualifying service which is requiredfor the pension as mentioned in Rule 49, is ten years.The qualifyingservice has been explained in various memos issued by theGovernment of India from time to time. But Rule 49 read withRule 38 makes it clear that qualifying service of pension is tenyears and therefore, gratuity is determined after completion ofqualifying service of ten years. Therefore, for grant of any kindof pension one has to put in the minimum of ten years of qualifying A

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Aservice. The respondent in the present case, does not have theminimum qualifying service. Therefore, the authorities declinedto grant him the invalid pension. But the amount of gratuity hasbeen determined and the same was paid to him.

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23. The above enunciation of the law on requirement of qualifyingservice for invalid pension by the bench of two judges is reiterated andapproved by us.

C24. In a case like this, the need for compassion and the complianceof the norms has to be balanced. As earlier noted, the allowable gratuitybenefits were granted on account of the respondent’s husband and afterhe died, the widow was appointed (on 12.6.2006) in a government jobunder the Rehabilitation Assistance Scheme. Thus, the needed meansof sustenance was provided to the deceased’s family.D

25. The respondent’s husband had not served for ten years andwas therefore, he disentitled for regular pension. For the same reason,he cannot also be held entitled to invalid pension. The different provisionsof the Pension Rules cannot be read in isolation and must be construedharmoniously and the requirement of qualifying service cannot be saidEto be irrelevant for claiming different service benefits under the sameRules. Here the employee did not satisfy the requirement of qualifyingservice and therefore the invalid pension could not have been orderedfor him, under Rule 39 of the Pension Rules.

26. In the above context, it will bear emphasis that the respondentFnever prayed for invalid pension for her husband in her O.A. and yet theTribunal as well as the High Court granted her the unclaimed relief.Such additional munificence, in addition to the job provided to the firstrespondent under the Rehabilitation Assistance Scheme for thesustenance of the deceased’s family, in our view, was unwarranted andthe impugned order cannot be sustained.G

27. In view of the foregoing, the impugned orders of Tribunaland the High Court are set aside and the Appeal stands allowed. Theparties to bear their own cost.

HDevika Gujral