Avtar Singh vs The State of Punjab and others

Gokal Chand Mital, J.—Avtar Singh as an ex-army personnel joined as a Platoon Commander in Home Guards on 3rd November, 1968. On 7-2-1974, he was absent from parade and due to his inefficiency and being absent he was discharged from service on 12-2-1974. However, on his representation and assurance, he was reinstated on 30th August, 1974. He did not improve and remained below average and for that reason he was not allowed to cross efficiency bar on 1st May, 1975, 1st May, 1976 and 1st May, 1977. Since throughout his record was below average he was pre-maturely retired on 17th April, 1979 after having attained the age of more than 50 years, in accordance with Rule (3) of the Punjab Civil Service (Pre-mature Retirement) Rules, 1975 (hereinafter called ''the 1975 rules''), by giving three months notice. Since he had not completed more than ten years of qualifying service he was not granted pensionary benefits.

On 27th August, 1980, he filed civil suit to challenge his pre-mature retirement as also the denial of pensionary benefits.

Both the Courts below found no merit in the claim and dismissed the suit and this is his second appeal.

On a consideration of the matter, I am of the view that there is no scope for interference with the pre-mature retirement order.

Rule 3 of the 1975 Rules clearly authorises the Appointing Authority to pre-maturely retire an employee if it is of the opinion that it is in public interest to do so provided the employee completes 25 years of qualifying service or attains the age of 50 years or on any date thereafter to be specified in the notice. The notice period is to be three months for which he is entitled to sum equal to pay and allowances. The service record of the employee has throughout been below average and this gave justification to the appointing Authority to pre-maturely retire him on attaining 50 years of age. Hence, no interference in this part of the order is called for.

Rules 4 and 5 of the 1975 Rules have important bearing on the claim of the employee regarding grant of pensionary benefits. For facility of reference, they are being reproduced:

Retiring Pension and Gratuity: A retiring pension and death-cum retirement gratuity shall be granted to a government employee who retires or is required to retire under Rule 3.

Overriding effect: The provisions of these rules shall have effect notwithstanding anything inconsistant therewith contained in any other rules for the time being in force.

Rule 4 of 1975 Rules clearly provides that a person who is required to be retired under Rule 3 shall be granted retiring pension. The argument raised on behalf of the Government was that the rule applicable to pension would be the one contained in the Punjab Civil Services Rules Volume II, Chapter IV, Rule 4.2(1)(b). The Chapter starts with the heading Reckoning of service for pension and Rule 4.2(1)(b) thereof provides for the superannuation pension payable to the Govt. employees to a service or post to which candidates of more than 25 years of age are normally recruited and the proviso (1) provides that the concession of giving pension shall not be admissible to a Government employee unless his actual qualifying service at the time he quits Government service is not less than 10 years. According to him since Petitioner had only 9 years and 10 months of service, and 10 years being qualifying service for making him entitled to pension, he has rightly been denied the pensionary benefits. In view of the aforesaid argument of the counsel for the State Rule (5) of the 1975 Rules assumes importance. Rule 5 has the overriding effect on other rules for the time being in force. The rule of pension referred to by the learned Counsel for the State was framed long before the Rules in question which specifically relate to pre-mature retirement were framed and for that reason the law framers have given overriding effect to the pre-mature retirement Rules. Here, the employee is not quitting the post either on superannuation or at his sweet will but is being forced to leave the job and probably for that reason the Rule framers provided Rule 5 for giving overriding effect to these Rules and by virtue of Rule 4 of the 1975 Rules the Appellant is entitled to pensionary benefits, irrespective of the period during which he may have remained in service.

The Appellant filed Civil Misc. No. 3713-C of 1988 for per. mission to produce order dated 5-8-1988 passed by the Commandant General, Home Guards, Punjab, during the pendency of appeal, by way of additional evidence. A reading of the order shows that the Appellant has been allowed military service benefits for the service rendered during emergency (1-11-1962 to 9-1-1988) towards annual increments with regard to the service rendered in the department. His presumptive date of appointment, in view of the above has been fixed as 23-8-1963. However, the following further observations are made in the same:

No benefit towards seniority and pension of this period is being given to him.

On the basis of the order sought to be produced by way of additional evidence, the learned Counsel for the Appellant urges that benefit having been granted to the Appellant of the military service rendered by him during emergency, that benefit has to be granted to him also for seniority and pension and the denial of the same is clearly illegal and erroneous.

A new cause of action has arisen to the Appellant on the basis of the aforesaid order passed during the pendency of the appeal and on that cause of action it will be open to him to take such steps as are available to him either departmentally or in Court of law for redressal of his grievance and the decision of this appeal will not stand in his way in doing so This matter is left open to be gone into in appropriate proceedings and the application stands disposed of with this order.

For the reasons recorded above, the appeal is allowed and after modifying the judgments and decrees of the two Courts below, suit of the Appellant is decreed for the limited relief of pensionary benefits under Rule 4 of the 1975 Rules. The same be calculated within a period of six months from today and be paid within three months thereafter. In view of the partial success, there will be no order as to costs.