Guman Singh vs State of Rajasthan and Others

B.S. Chauhan, J.—The instant petition has been filed for seeking a direction to the respondents to restore the pension already sanctioned to the petitioner vide Annexure. 5 and for quashing the order dated 4.12.1992, contained in Annexure. 6 to the petition, by which the petitioner has been found non-suited for the grant of pension.

The facts and circumstances giving rise to this case are that petitioner was appointed as a Helper with effect from 1.6.1966 with the respondents and he was given semi-permanent status under the provisions of the Work-Charge Rules, 1964 with effect from 1.6.1968 as in evident from Annexure. 7 issued on 28.8.1972. Petitioner was further given permanent status with effect from 1.4.1982 as is evident from the order dated 2.8.1982 contained in Annexure. 1 to the petition. He applied for voluntary retirement under the provisions of Rule 244(1) of the Rajasthan Service Rules, 1951 and his application was considered vide order dated 11.11.1991 contained in Annexure. 3 and he was relieved with effect from 29.11.1991 as is evident from the contents of Annexure. 4 to the petition. The petitioner was given the provisional pension etc. but, now, it has been stopped. Hence this petition.

Heard Mr. H.K. Purohit, learned Counsel for the petitioner and Mr. R.P. Vyas, learned Counsel for the respondents.

It has been submitted by Mr. Purohit that Rule 244(1) of the Rajasthan Service Rules, 1951 provides for optional retirement on completion of twenty years qualifying service, which means that a person may seek retirement with three months notice in writing on the date on which he completed twenty years of "qualifying service" or attained the age of 45 years, whichever is earlier, or any date thereafter to be specified in the notice. The respondents have wrongly considered his case under the second category. He has no quarrel regarding the first proposition as the Date of Birth of the petitioner is 13.3.1948 and he was below 45 years of age when he was given voluntary retirement. However, his contention is that the petitioner admittedly joined service with effect from 1.6.1966 and served the respondents till the date of his voluntary retirement for a period of 25 years and six months and, therefore. he cannot be denied the pension etc.

Mr. Vyas has placed reliance on Sub-rule (5) to Rule 244 of the Rajasthan Service Rules, 1951, which reads as under:

(5) This rule is also applicable to government servant who are members of Contributory Provident Fund. In their case, the term qualifying service shall mean service commencing on the day the government servant started subscribing towards the Contributory Provident Fund.

Mr. Vyas has submitted that the petitioner started contributing towards Contributory Provident Fund with effect from 1.4.1973, as is evident from Annexure. 8, therefore, he did not qualify the period of twenty years from the said date and he cannot be considered eligible for the grant of pension. Similar provisions have been provided under Rule 22-A of the Rajasthan Work-Charge Employees Rules, 1964. Mr. Purohit, learned Counsel for the petitioner has placed reliance on various judgments of this Court wherein it has been held that for the purpose of computing the pension the entire service rendered by a work-charge employee has to be considered. (Vide S.B.Civil Writ Petition No. 178/1987, Rameshwar Lal v. State of Rajasthan, decided on 18.12.1987; Durga Lal v. State of Rajasthan and Ors. 1993 Rajasthan Vidhi Partika 188; and S.B.Civil Writ Petition No. 2889/1989, Harbans Lal v. State of Rajasthan and Ors. decided on 10.10.1990).

Similar view has been taken in S.B.Civil Writ Petition No. 2867/1984, Om Prakash v. State of Rajasthan and Ors. etc. decided on 17.12.92. In the said case, this Court was pleased to hold that whenever a temporary or work-charge employee is appointed subsequently on regular basis, he cannot be denied the benefit of past services. The Court further observed that the work-charge employee and the temporary employee, both being discharging the same duties and functions, thus, there can be no justification in discriminating them for grant of future benefits in service on the basis of their birth-mark. While deciding the case, the Court placed reliance on its earlier judgment in Ismail Khan v. State of Rajasthan and Ors. 1968 (1) WLN 59 and held that such employees shall be treated as permanent employees and they will be entitled for all pensionary benefits applicable to them.

The issue of "qualifying service" was ''also'' considered by the Division Bench of this Court while deciding D.B.Civil Special Appeal No. 283/ 1996, State of Rajasthan and Ors. v. Vasu Deo and Anr. decided on 10.8.1996 and the Court held that an employee appointed on daily wages towards anticipated work would, also, be deemed eligible to treat the services rendered by him as a daily wager for computing the qualifying service for pension within the meaning of Rule 179 of the Rajasthan Service Rules, 1951.

While deciding S.B.Civil Writ Petition No. 171/1992, Amar Singh v. State of Rajasthan and Ors. decided on 10.2.1993, this court has held that the primary liability to deduct the Contributory Provident Fund amount is of the employer and not of the employee and if such a deduction has not been made, the employee can not be deprived of the right of pension.

Mr. Purohit, learned Counsel for the petitioner has submitted that the provision of Rule 244(1) of the Rules, 1951 permit an employee to get voluntary retirement after completing twenty years qualifying service. The natural corollary of it is that the Authority cannot accept such an application if the employee has not completing such qualifying service and. thus, if the petitioner has been permitted to get retirement under the said provisions, the estoppel operates against the respondents to take the plea that petitioner has not completed the qualifying service. In support of this, he has placed reliance on Nishan Singh v. Transport Commissioner and Anr. 1992 (5) SLR 441, wherein while interpreting the similar provisions contained in Rule 5.32 of the Punjab Civil Services Rules, the Punjab & Haryana High Court observed that if the rule requires mandatorily completion of twenty years qualifying service and the application under such provision has been accepted by the Authority concerned, the Authorities are estopped from contending that the said employee had not completed the requisite period of service so as to entitle him to claim the pension. In the instant case, the respondents have accepted the application made by the petitioner. Therefore, the presumption is that he had fulfilled the condition of making such an application. After granting the relief to the petitioner under said provisions, the argument that petitioner did not complete the qualifying service is not available to the respondents. It is settled proposition of law that an estoppel does not operate against law. Thus, if by mistake the respondents had accepted the said application, such a plea cannot be taken by the petitioner. Therefore, it would not be safe to place any reliance on the said judgment of Punjab & Haryana High Court.

Thus, in view of the above, the petition succeeds and is allowed accordingly. The respondents are directed to consider the claim of the petitioner for pension after computing the entire period of service rendered by the petitioner. The parties shall bear their own costs.