Sukhmander Singh vs State of Punjab and Others

A.N. Jindal, J.—Assailed in this appeal is the judgment dated 07.08.2008 passed by the District Judge, Faridkot, dismissing the appeal filed by the plaintiff-appellant (hereinafter referred as ''the plaintiff'') against the judgment and decree dated 22.05.2008 passed by the Additional Civil Judge (Senior Division), Faridkot, dismissing his suit for declaration claiming pensionary benefits. The plaintiff joined the Education Department as a Teacher on 15th Assu, 1947. His appointing authority was His Highness Maharaja of Faridkot State. Thereafter, the said State was merged into Pepsu Government. Later on, all the schools, including the school of the plaintiff, were taken over by the Punjab Government. After serving many years, he submitted his resignation on 08.01.1975, which was duly accepted by the respondents-defendants (hereinafter referred as ''the defendants'') without objection. It was further submitted that, though the plaintiff had resigned from service, yet he having completed 28 years of service, was entitled to pensionary benefits under Rule 4.2 (1) (b) Chapter IV, Volume I of Punjab Civil Services Rules. On this basis, the plaintiff filed the suit for declaration on 23.09.2005 i.e. 30 years after he had retired.

The suit was contested by the defendants, wherein they contended that the suit was time barred. The plaintiff resigned from service on 08.01.1975, but the suit was filed after a period of 30 years. It was further contended that consequent upon submitting resignation, the past service of the plaintiff stood forfeited, therefore, he was not entitled to any pensionary benefits.

From the pleadings of the parties, following issues were framed by the trial Court:-

Whether the plaintiff is entitled to declaration as prayed for? OPP

Whether the plaintiff is entitled to mandatory injunction? OPP

Whether the suit is time barred? OPD

Whether notice u/s 80 CPC is not valid? OPD

Whether the suit is bad for mis-joinder of defendants No. 3 and 4? OPD

Relief.

Both the parties led evidence. The trial Court dismissed the suit vide judgment dated 22.05.2008. The appeal filed by him also met with the same fate.

Heard. Rule 4.2 (1), Chapter-III, Volume II of Punjab Civil Services Rules, which has been relied upon by the plaintiff, reads as under:-

A Government employee appointed to a service or post after the twenty sixth day of October, 1960, shall be eligible to add to his service qualifying for Superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period which his age at the time of recruitment exceeded twenty five years, or a period of five years, whichever is less, is the service or post to which the Government employee is appointed as one:-

(a) for which post graduate research or specialist qualification or experience in scientific, technological or professional fields, is essential; and

(b) to which candidates of more than twenty five years of age are normally recruited;

Provided further that this concession shall not be admissible to a Government employee unless his actually qualifying service at the time he quits Government service is not less than ten years:

Provided further that this concession shall be admissible only if the recruitment rules in respect of the said service or post contain a specific provision that the service or post is one which carries the benefit of this rule.

(2) Government employee who is recruited at the age of thirty five years or more, may within a period of three months from the date of his appointment elect to forego his right to pension whereupon he shall be eligible to subscribe to a contributory provident fund.

(3) The option referred to in sub rule (2) once exercised, shall be final.

(4) A Government employee, who is blind, deaf, dumb or otherwise orthopaedically handicapped or widow at the time of his entry into Government service shall be eligible to add to his service qualifying for superannuation pension a period of five years.

(5) A Government employee, who becomes blind, deaf, dumb or otherwise orthopaedically handicap during the service and is retired from service as a result thereof, shall also be eligible to add to his service qualifying for superannuation pension, a period of five years.

The aforesaid Rule is not applicable to the case of the plaintiff as he was not appointed after 26th day of October 1960, therefore, he could not claim benefit under the said Rule. Even otherwise, as per Rule 7.5 (1) of Punjab Civil Services Rules, where the resignation from a service or a post is not allowed to be withdrawn in public interest by the appointing authority, it entails to forfeiture of pasts service. Since the resignation of the plaintiff was never permitted to be withdrawn in public interest by the appointing authority, therefore, it entailed forfeiture of his past service.

The Hon''ble Apex Court while examining Rules 4.19(a), 4.19(b), 6.16(2) and 5.32-A of the Punjab Civil Services Rules in case Ghanshyam Dass Relhan Vs. State of Haryana and Others, has observed as under-

In our view, Rule 4.19(a) has to be read and understood differently from what has been urged by Mr. Dholakia. The expression "resignation from public service" will have to be read disjunctively from ''dismissal or removal from it." The expression ''resignation from public service" will not be qualified by the subsequent references relating to anti-national activities. On the other hand, the expression "dismissal or removal from it" will be qualified by the said expression which would in both cases entail forfeiture of past service and disqualification so far as payment of pension is concerned. In other words, read disjunctively, resignation simplicitor from public service would entail forfeiture of past service and no pension is to be granted in the aforesaid circumstances.

As far as Rule 4.19(b) is concerned, it is quite clear that resignation to take up with proper permission, another appointment, would have to be in a service, which would count towards pension in government service. It means that the subsequent appointment must also be in public service and in such a case the resignation would not amount to resignation of public service. In such a case, continuity in public service would be accepted in computing the qualifying service of thirty years for grant of pension. It is a provision similar to Rule 4.19(b) which was relied upon by the Division Bench of the Calcutta High Court in deciding Dr. Sajal Kanti Chakraborty Vs. State of West Bengal and Others, and distinguishes the said case from the facts of this case.

As far as Rule 6.16(2) is concerned, in our view, the same cannot be divided into two separate compartments as has been suggested by Mr. Dholakia. The second part of the said Rule is a consequence of the first part, which deals with retirement upon superannuation and not resignation, as in the instant case. In order to be eligible for pension the Government employee at the time of superannuation would have to complete qualifying service of not less than thirty-three years or more. However, an exception has been made in the second part of the said Rule which also allows the benefit of pro rata pension to employees who had rendered ten years'' service or more.

In our view, not having superannuated from Government service, the petitioner cannot come within the said category and as submitted by Mr. Patwalia, his case would instead be governed by Rule 5.32-A which deals with resignation.

The said Rule clearly provides that a Government employee is entitled on his resignation being accepted to a retiring pension subject to his completing qualifying service of not less than thirty years which in special cases could be reduced to twenty-five years. Since the petitioner has not completed the qualifying service of thirty years and since the service rendered by him with the Bank would not be counted towards government service, the petitioner is not entitled to the benefit of pension under Rule 6.16(2) and the High Court has rightly decided the issue.

Now coming to the question of limitation, it may be observed that since the pension could be a recurring cause of action, therefore, the question of limitation cannot be made a ground for granting the relief, for which, one is otherwise entitled. But, in the instant case, the plaintiff was responsible for delay and laches and he kept sleeping for 30 years without raising such claim, obviously for the reason that he knew and was satisfied that he having resigned was not entitled to raise such claim. As has been discussed above, the plaintiff having resigned on his own and having not been covered by the Rules, over which he has placed reliance, is not entitled to any relief.

Both the Courts below have decided against the plaintiff. The evidence appears to have been appreciated in the right perspective. No substantial question of law arises for determination by this Court. Dismissed.