Full Judgment Text
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CASE NO.:
Appeal (civil) 6879 of 2003
PETITIONER:
State of Haryana & Ors
RESPONDENT:
Babu Singh
DATE OF JUDGMENT: 27/11/2007
BENCH:
H. K. Sema & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO.6879 OF 2003
Lokeshwar Singh Panta, J.
1. This appeal, by special leave, is directed against the
judgment and order dated 19.07.2002 passed by a Division
Bench of the High Court of Punjab and Haryana at
Chandigarh in CM No.10362/99 in CWP No.2890/97, whereby
and whereunder the appellants have been directed to pay
pension to Babu Singh by giving him benefit of Rule 6.16 (2)
of the Punjab Civil Services Rules, 1952 (Vol.-II Part-I) with
further direction to do the needful within a period of three
months from the date of submission of a certified copy of the
order.
2. The necessary facts in brief may be stated as follows:
Babu Singh, respondent herein, served the Indian Army
as a Driver from 06.01.1964 to 31.01.1979. He was granted
the benefit of pay fixation, seniority, increments etc. of the
military service. After being discharged from Army service, the
respondent was appointed as Driver in Haryana Roadways,
Faridabad, w.e.f. 23.04.1979. On 09.03.1996, the respondent
applied for voluntary retirement from service and his request
was accepted by the General Manager, Haryana Roadways,
Faridabad, who retired him from service vide Order dated
18.06.1996. Afterwards, the respondent made representation
for reinstatement by contending that the General Manager,
Haryana Roadways- appellant No.3 herein could not have
accepted his conditional plea for voluntary retirement ignoring
the fact that he will not be eligible to get pensionary benefits
without counting military service. Having failed to receive any
favourable decision from the appellants, the respondent filed
Civil Writ Petition No.2890/97 in the High Court of Punjab
and Haryana at Chandigarh, inter alia, claiming the following
reliefs:-
"(i) issue a writ of certiorari quashing the
impugned order dated 18.06.1996 being
illegal and against the provisions of rules;
(ii) issue a writ of mandamus directing
the respondent-authorities to take back
the petitioner into service in order to
complete 20 years qualifying service for
the purpose of pension, gratuity, etc.;
(iii) issue any other appropriate writ,
order or direction which this Hon’ble
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Court may deem fit in the circumstances
of the case;
(iv) dispense with the filing of certified
copies of annexures of this writ petition;
(v) dispense with the advance notice to
the respondents of the writ petition; and
(vi) award the costs of this writ petition to
the petitioner."
3. The respondents in the writ petition, who are appellants
before this Court, have contested and resisted the claim of the
writ petitioner. They contended that as the respondent sought
unconditional voluntary retirement, he was not entitled to get
pension in view of the decision taken by the Accountant
General, Haryana, appellant No.4 herein and conveyed vide
communication dated 03.08.1996 to appellant No. 3.
4. During the commencement of the hearing of the said writ
petition, the Deputy Advocate General of the State drew
attention of the High Court to the original application
submitted by the respondent in February 1996 seeking
voluntary retirement from service and pointed out that the
document produced as Annexure P-2 by the respondent along
with the writ petition contained interpolation. It was
submitted that the words "if the Government has got any such
law that I can get pension under the benefit of ex-service, I may
be given retirement" were not stated in the original application
and those words had been added later on by the respondent in
order to prove his plea that he sought conditional voluntary
retirement. After hearing the learned counsel for the
respondent on the issue of interpolation of the aforesaid words
in the application, the High Court observed as under:-
"In our opinion, the document Annexure
P-2 purporting to be the true translation
of the application submitted by the
petitioner for making voluntary
retirement has been fabricated by the
petitioner in order to justify his plea that
respondent No.3 should not have
accepted his request without verifying his
entitlement to get pension.
A look at the original application
submitted by the petitioner before the
respondent No.3 for voluntary retirement
shows that he had pleaded inability to
serve the Roadways due to illness and
adverse family conditions. In the said
application, he did not incorporate the
condition that his request may be
accepted only if he was entitled to earn
pension on the basis of total service. In
the absence of such condition,
unconditional acceptance of the
petitioner’s request for retirement cannot
be nullified or invalidated on the ground
that he had subsequently changed his
mind. Otherwise also, we are not
convinced with the petitioners’ plea that
he was unaware of the limited benefit
extended to him vide order dated
09.03.1987 (date of this order has been
given as 09.11.1987 in the written
statement filed by the respondents) which
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was passed by the respondent No.3 under
the Punjab National Emergency Rules,
1965. A bare reading of that order shows
that the military service rendered by the
petitioner was counted only for the
purpose of fixation of pay, seniority and
increments and no other benefit was
extended to him. Therefore, the
petitioner cannot make any grievance
against the acceptance of his request for
voluntary retirement. As a logical
corollary, it must be held that he cannot
seek reinstatement merely because the
Accountant General of Haryana has
refused to give him pensionary benefits.
For the reasons mentioned above, the
writ petition is dismissed. In view of the
highly contumacious conduct of the
petitioner of producing fabricated
documents before the Court, we impose
costs of Rs.5,000/- which the petitioner
should pay to the respondent."
5. The respondent thereafter filed another Writ Petition No.
4619/99 in the High Court of Punjab and Haryana at
Chandigarh, inter alia, praying for the following directions:-
(i) issue a writ of certiorari, mandamus
or any other appropriate writ directing
the respondent-authorities to release the
retirement benefits, i.e. pension, gratuity,
commutation of pension w.e.f.
13.06.1966 and revised pay scales,
revised pension, revised gratuity, etc.
w.e.f. 01.01.1996 in view of the
acceptance of recommendations of the
Fifth Pay Commission by the State
Government in February 1998 with
interest at the rate of 18% per annum;
(ii) issue any other appropriate writ, order
or direction which this Hon’ble Court may
deem fit in the circumstances of the case;
(iii) dispense with the filing of certified
copies of annexures of this writ petition;
(iv) dispense with the advance notice to
the respondents of the writ petition; and
(v) award the costs of this writ petition to
the petitioner."
6. The said writ petition came to be listed before the
Division Bench of the High Court on 19.04.1999 when the
following order was recorded by the Bench:-
"Present Shri W.R. Dua, Advocate for the
petitioner.
After making some submissions, Shri
Dua requested that he may be allowed to
withdraw this petition with liberty to the
petitioner to make appropriate
application for grant of relief in CWP
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No.2890 of 1997 decided on 31.8.1998.
We accepted the request of the learned
counsel and dismiss the writ petition as
withdrawn with liberty as prayed for."
7. It appears from the record that the respondent thereafter
filed an application under Section 151 of the Code of Civil
Procedure being Civil Miscellaneous No.10362/99 dated
29.04.1999 in CWP No.2890/97, which was already dismissed
by the Division Bench on 31.08.1998 with costs of Rs.5,000/-.
In the said application, the respondent has claimed retiral
benefits under Rule 6.16(2) of the Punjab Civil Service Rules
Vol. II. The application was, however, allowed by the Division
Bench vide Order dated 19.07.2002 and the appellants were
directed to pay pension to the respondent within a period of
three months.
8. Being aggrieved against the impugned order dated
19.07.2002, the State of Haryana through Secretary to the
Government, Haryana Transport Department; (Appellant
No.1), The Transport Commissioner, Haryana; (Appellant
No.2), The General Manager, Haryana Roadways, Faridabad;
(Appellant No.3) and the Accountant General, Haryana,
(Appellant No.4) have filed this appeal by special leave.
9. We have heard Mr. P. S. Patwalia, Senior Advocate, and
Mr. Manjit Singh, Additional Advocate General appearing for
the appellants and Mrs. Namita Sharma, learned counsel for
the respondent in detail.
10. In the midst of the hearing of this appeal on 08.08.2007,
this Court felt it necessary to summon the original record of
application (CM No.10362/99 in CWP No.2890/97) from the
Registry of the Punjab and Haryana High Court. On receipt of
the original record, the parties were heard further. An
argument advanced by Mr. Patwalia, Senior Advocate, before
us was that after dismissing the first Writ Petition No.2890/97
filed by the respondent, with costs for the highly
contumacious conduct of the respondent for producing
fabricated documents, the High Court has become functus
officio and, therefore, C.M. No. 10362/1999 filed by the
respondent under Section 151 CPC was not maintainable nor
any relief could have been granted to the respondent by the
High Court. He next submitted that the High Court failed to
appreciate that the service conditions of the respondent are
governed by the Punjab Civil Services Rules, 1952 (for short
"PCS Rules") Vol. II Part-1, whereunder the respondent before
seeking voluntary retirement has to complete 20 years’ of
qualifying service for getting pension and admittedly he has
not fulfilled the essential criteria, therefore, the impugned
order of the High Court granting pension to the respondent is
in violation of the rules and cannot be sustained on this
ground as well.
11. Mrs. Namita Sharma, Advocate, resisting the above
submissions, argued that this Court should be slow in
interfering with the well-reasoned judgment of the High Court
based upon the proper appreciation of the facts in issue and
law. She contended that it was the duty of the appellants to
ensure compliance of the statutory rules which enjoin upon
them the duty to see that once the respondent has been
permitted to proceed on voluntary retirement and in fact he
was so retired, it is no longer open to the appellants to tell him
that he has put in less than 20 years of service and on that
account he was not entitled to any pension.
12. In support of this contention, Mrs. Sharma has relied on
the judgments passed by the learned Single Judge and
Division Bench of the Punjab and Haryana High Court in the
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following cases;-
(i) Ganga Bishan v. State of Haryana
[1994 (3) Service Cases Today 153];
(ii) Ramesh Chand Kaushik v. State of
Haryana [1994 (3) Recent Services
Judgments 792 (D.B.)];
(iii) Nishan Singh v. Transport
Commissioner [1994 (3) Recent Services
Judgments 519]; and
(iv) Manorama Rani v. The Secretary to
Government of Punjab, Education
Department and Ors. [2000 (3) Recent
Services Judgments 89]"
13. Having gone through the above-said decisions of the
learned Judges of the Punjab and Haryana High Court, we are
of the view that the decisions turned upon the facts of those
cases and cannot be held to be binding precedent in the facts
and circumstances of the present case. In the present case, it
is not in dispute that the services of the respondent were
governed under PCS Rules. Chapter V of the PCS Rules Vol.
II deals with different kinds of pensions. Rule 5.1 of Section I
prescribes four classes of pensions, namely, (a) Compensation
Pensions (See Section II); (b) Invalid Pensions (See Section III);
(c) Superannuation Pensions (See Section IV) and (d) Retiring
Pensions (See Section V). Rule 6.1 in Chapter VI deals with
amount of pensions that may be granted to the employee on
the basis of determination of length of service. In the case of
the respondent, the rule for the grant of retiring pension is
covered by Rule 5.32-B which reads as under:-
"5.32-B. (1) At any time a Government
employee has completed twenty years’
qualifying service, he may, by giving
notice of not less than three months in
writing to the appointing authority, retire
from service. However, a Government
employee may make a request in writing
to the appointing authority to accept
notice of less than three months giving
reason therefor. On receipt of a request,
the appointing authority may consider
such request for the curtailment of the
period of notice of three months on merits
and if it is satisfied that the curtailment
of the period of notice will not cause any
administrative inconvenience, the
appointing authority may relax the
requirement of notice of three months on
the condition that the Government
employee shall not apply for commutation
of a part of his pension before the expiry
of the period of notice of three months.
(2) The notice of voluntary retirement
given under sub-rule (1) shall require
acceptance by the appointing authority
subject to rule 2.2 of Pb. C.S.R. Vol.II:
Provided that where the appointing
authority does not refuse to grant the
permission for retirement before the
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expiry of the period specified in sub-rule
(1) supra, the retirement shall become
effective from the date of expiry of the
said period:
Provided further that before a
Government employee gives notice of
voluntary retirement with reference to
sub-rule (1) he should satisfy himself by
means of a reference to the appropriate
authority that he has, in fact, completed
twenty years service qualifying for
pension.
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14. The respondent has averred in the application under
Section 151, CPC, that he is entitled to get pension under Rule
6.16(2) of the Rules because as on the date of voluntary
retirement, he had completed more than ten years service.
The Division Bench of the High Court granted the relief of
pension to the respondent by giving him benefit of Rule 6.16(a)
of PCS Rules in view of the earlier two decisions of the High
Court in Ganga Bishan v. State of Haryana [1994 (3) SCT 154
P & H; and Manorama Rani v. The Secretary to Government
Punjab, Education Department & Ors. [1994 (3) RSJ 89.
15. We find from the record that the claim of the respondent
for the grant of retrial pension has been considered by the
competent authority under Rule 5.32-B of PCS Rules,
whereunder the respondent has to complete 20 years’
qualifying service before seeking voluntary retirement from
service. Proviso (2) to Rule 5.32-B emphasizes that before a
Government employee gives notice of voluntary retirement
with reference to sub-rule (1) he should satisfy himself by
means of a reference to the appropriate authority that he has,
in fact, completed twenty years service qualifying for pension.
It is not in dispute that the respondent has been given the
benefits of military service towards seniority, gratuity and
other benefits including military pension and therefore, the
High Court was not justified in extending the benefit of Rule
6.16(1) of the PCS Rules to the respondent.
16. As noticed above, the respondent has not chosen to seek
the benefit of pension in terms of Rule 6.16 (2) of the PCS
Rules Vol. I in the first writ petition No.2890/97, which was
dismissed by the Division Bench with costs for the aforesaid
reasons. In the said writ petition, second prayer made by the
writ petitioner (respondent herein) was to issue a writ of
mandamus directing the respondents-authorities (appellants
herein) to take back the writ petitioner into service in order to
complete 20 years qualifying service for the purpose of
pension, gratuity, etc. This prayer of the writ petitioner would
clearly indicate that his claim for the grant of pension in the
case of voluntary retirement is squarely covered by Section
5.32-B of the PCS Rules and not under Rule 6.16(1) of the
Rules as held by the High Court. Undisputedly, the
respondent has not completed 20 years qualifying service
before he sought voluntary retirement on 09.02.1997 and his
request was accepted by the competent authority on
19.06.1996 with immediate effect. The Division Bench of the
High Court in its order dated 31.08.1998 passed in CWP
No.2890/07 found that the respondent in his application
seeking voluntary retirement had pleaded inability to serve the
Roadways due to illness and adverse family condition and in
the application, he did not incorporate any condition that his
request should be accepted only if he was found entitled to
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earn pension on the basis of the entire period of service. The
document seeking voluntary retirement produced by the
respondent before the Division Bench was held to be
fabricated for which the respondent was penalized by the High
Court by imposing cost of Rs.5,000/- when his writ petition
was dismissed. The second writ petition No. 4619/99 filed by
the respondent seeking retrial benefits, i.e. pension, gratuity,
commutation of pension w.e.f. 13.06.1996 and revised pay
scales, revised pension, revised gratuity, etc. w.e.f. 01.01.1996
in view of the acceptance of recommendation of the Fifty Pay
Commission by the State Government in February 1998, with
interest at the rate of 18% per annum, was allowed to be
withdrawn by the Division Bench of the High Court vide Order
dated 19.04.1999 and relief of pension has been granted to
the respondent in C.M. No. 10362/199 vide order impugned in
this appeal, which is wholly unsustainable and against the
provisions of the statutory rules governing the service
conditions of the respondent.
17. The High Court’s order is not sustainable for yet another
reason. As noticed above, first Writ Petition No. 2890/97 was
dismissed with costs for the highly contumacious conduct of
the respondent for producing a fabricated document in regard
to seeking of unconditional voluntary retirement from the
service. We may again repeat that no claim for pensionary
benefits was made by the respondent in Writ Petition No.
2890/1997 nor has he applied for review of the order dated
31.08.1998 whereby his petition was dismissed. Thus, the
order dated 31.08.1998 passed by the Division Bench of the
High Court in CWP No.2890 of 1997 has attained finality. It is
well-settled that the relief granted by the courts must be seen
to be logical and tenable within the framework of the law and
should not incur and justify the criticism that the jurisdiction
of the courts tends to degenerate into misplaced sympathy,
generosity and private benevolence. It is essential to maintain
the integrity of the legal reasoning and the legitimacy of the
conclusions. The possession of powers under Section 151,
CPC, by the Courts, itself is not sufficient, it has to be
exercised in accordance with law. The orders of the Courts
must emanate logically from legal findings and the judicial
results must be seen to be principled and supportable on
those findings.
18. In State of Uttar Pradesh v. Brahm Dutt Sharma & Anr.
[(1987) 2 SCC 179], this Court recorded a note of caution that
when proceedings under Article 226 of the Constitution of
India stand terminated by final disposal of writ petition, it is
not open to the Court to reopen the proceedings by means of a
miscellaneous application. Paragraph 10 (page 187) of the
decision reads as under:-
"10. The High Court’s order is not
sustainable for yet another reason.
Respondents’ writ petition challenging the
order of dismissal had been finally
disposed of on August 10, 1984,
thereafter nothing remained pending
before the High Court. No miscellaneous
application could be filed in the writ
petition to revive proceedings in respect
of subsequent events after two years. If
the respondent was aggrieved by the
notice dated January 29, 1986 he could
have filed a separate petition under
Article 226 of the Constitution
challenging the validity of the notice as it
provided as separate cause of action to
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him. The respondent was not entitled to
assail validity of the notice before the
High Court by means of a miscellaneous
application in the writ petition which had
already been decided. The High Court
had no jurisdiction to entertain the
application as no proceedings were
pending before it. The High Court
committed error in entertaining the
respondent’s application which was
founded on a separate cause of action.
When proceedings stand terminated by
final disposal of writ petition it is not
open to the court to reopen the
proceedings by means of a miscellaneous
application in respect of a matter which
provided a fresh cause of action. If this
principle is not followed there would be
confusion and chaos and the finality of
proceedings would cease to have any
meaning."
[Emphasis supplied]
19. In our view, it would be in the fitness of things to follow
the aforesaid principle as laid down by this Court in the case
of Brahm Dutt Sharma (supra) in the facts and circumstances
of the instant case. The High Court, therefore, was not
justified in granting relief to the respondent in a proceeding
under Section 151, CPC, filed in the decided writ petition.
20. In the result, for the aforesaid reasons the impugned
order dated 19.07.2002 passed by the Division Bench of the
High Court in CM No.10362/99 in CWP No.2890/97 stands
set aside and the said application is, accordingly, dismissed.
The appeal shall stand allowed accordingly. In the facts and
circumstances of the case, we leave the parties to bear their
own costs.