Service matter – after resignation from BDO he joined as Lecturer and retired as Asst. Professor – Govt. issued G.O. to count previous government service while fixing pension – but not done – writ – High court negatived – Apex court held that In view of the provisions of Rule 48 read with Government Resolution dated 11.3.1992, we hold that the appellant is entitled for counting the service earlier rendered between 21.06.1950 to 17.07.1960 for determination of pension. The High Court failed to notice the relevant provisions and wrongly held that the appellant is not entitled to get the benefits of his past services in view of Rule 46(1) of the Rules, 1982, which is not applicable in the case of the appellant. The High Court also erred in rejecting the claim on the ground of delay and failed to notice that the cause of action for grant of pension arises every month. In the present case what we find is that the appellant made representation at an
appropriate stage and such request was accepted by respondent No.4, the Administrative Officer, Higher Education, Nagpur who recommended respondent No.5, the Senior Accounts Officer, Accountant General-II, Maharashtra to count the period and to take into consideration the fact that the appellant has rendered more than 33 years of service. Even the Joint Director –
by his letter dated 30.12.2005 recommended to respondent No.2, Director, Higher and Technical Education, Pune to count the period from 21.06.1950 to 18.07.1960. Thereby, the appellant also explained the delay in moving the High Court.=
High Court refused
to grant pension to the appellant and dismissed the writ petition. Apart
from the ground of delay, the High Court dismissed the case on merit on the
ground that the resignation in the previous service was not tendered by
appellant with prior permission.=
The resignation was accepted on 18.07.1960
by the Block Development Officer and it was forwarded to the Deputy
Director of Education. After its acceptance, on 18.07.1960, he joined
Hislop College, Nagpur as Lecturer in absence of any refusal of letter of
resignation .
The Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter
referred to as, “the Rules, 1982”) were not applicable to the teaching and
non-teaching employees of the colleges. On –
24.5.1983, the appellant retired from service as Assistant Professor
(Marathi) from Hislop College, Nagpur. In between 1983 and 1986 pension of
the appellant was finalized but the service of the appellant from
21.6.1950 to 18.7.1960 was not counted.
The Government of Maharashtra by
Government Resolution No.NGC 1284/106150/ 994/84)/VS-4 dated 11.3.1992
decided to count past government service for computation of pension in
respect of all employees retiring on or after 1.10.1982. In view of such
Resolution, though the appellant was entitled to get his past services
counted for fixation of pension, the same were not considered. =
In the case of the appellant, there is notional break in service.
He resigned from the Government service on 18.07.1960 and joined the post
of Lecturer in Hislop College, Nagpur on the same day i.e. 18.07.1960.
Further, higher authorities have recommended to add –
the earlier period of service for determination of pensionary benefit.
Being so, in absence of a specific direction to the contrary in the
service record, the interruption between two spells of service rendered by
the appellant under the Government shall be treated as automatically
condoned; the earlier service rendered by appellant is to be counted
towards qualifying service.
14. In view of the provisions of Rule 48 read with Government
Resolution dated 11.3.1992, we hold that the appellant is entitled for
counting the service earlier rendered between 21.06.1950 to 17.07.1960 for
determination of pension. The High Court failed to notice the relevant
provisions and wrongly held that the appellant is not entitled to get the
benefits of his past services in view of Rule 46(1) of the Rules, 1982,
which is not applicable in the case of the appellant. The High Court also
erred in rejecting the claim on the ground of delay and failed to notice
that the cause of action for grant of pension arises every month. In the
present case what we find is that the appellant made representation at an
appropriate stage and such request was accepted by respondent No.4, the
Administrative Officer, Higher Education, Nagpur who recommended respondent
No.5, the Senior Accounts Officer, Accountant General-II, Maharashtra to
count the period and to take into consideration the fact that the appellant
has rendered more than 33 years of service. Even the Joint Director –
by his letter dated 30.12.2005 recommended to respondent No.2, Director,
Higher and Technical Education, Pune to count the period from 21.06.1950 to
18.07.1960. Thereby, the appellant also explained the delay in moving the
High Court.
15. For the reasons aforesaid, we set aside the impugned judgment and
order dated 23.04.2012 passed by the Division Bench of High Court of
Judicature at Bombay, Nagpur Bench, Nagpur and direct the respondents to
count the period of service rendered by the appellant from 21.06.1950 to
18.07.1960 for the purpose of computation of pension and pay the
consequential benefits including arrears of pension within three months
from the date of this judgment. On failure, the respondents shall be
liable to pay interest @ of 8% from the date of filing of the writ
petition till the amount is paid.
16. The appeal is allowed with aforesaid observations and directions.
No costs.
2014 judis.nic.in/supremecourt/filename=41406
SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4470 OF 2014
(arising out of SLP(C)No. 32091 of 2012)
MADHUKAR … APPELLANT
VERSUS
STATE OF MAHARASHTRA AND ORS. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.
2. This appeal has been preferred by the appellant against the
judgment and order dated 23.04.2012 passed by the Division Bench of High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.
4736 of 2011. By the impugned judgment and order, the High Court refused
to grant pension to the appellant and dismissed the writ petition. Apart
from the ground of delay, the High Court dismissed the case on merit on the
ground that the resignation in the previous service was not tendered by
appellant with prior permission.
–
3. The appellant was appointed on 21.6.1950 in the Food Department at
Dongargaon in District of Durg; the then ‘Madhya Prant Warhad State’ and
worked till 20.12.1954. Thereafter, he was appointed as Assistant Master,
Upper Division in Normal School at Kondagaon, District Jagdalpur where he
functioned between 22.12.1954 and 19.8.1956. Since his posting on
20.8.1956 he worked as Assistant Direct Inspector of School, Nagpur where
he continued upto 9.10.1956. Thereafter, he was posted as Superintendant,
Chokhamela Hostel, Nagpur from 10.10.1956 to 26.06.1957. Between
29.06.1957 and 30.04.1958 he underwent B.T. Training at Akola held by
Education Department. Thereafter, the appellant was posted as
Superintendent, Government Chokhamela Hostel, Nagpur on 1.5.1958 where he
continued up to 10.12.1958. He was posted as Social Education Organiser at
Mauda, District Nagpur between 11.12.1958 to 17.7.1960 when he tendered a
resignation from the service. The resignation was accepted on 18.07.1960
by the Block Development Officer and it was forwarded to the Deputy
Director of Education. After its acceptance, on 18.07.1960, he joined
Hislop College, Nagpur as Lecturer in absence of any refusal of letter of
resignation .
4. The Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter
referred to as, “the Rules, 1982”) were not applicable to the teaching and
non-teaching employees of the colleges. On –
24.5.1983, the appellant retired from service as Assistant Professor
(Marathi) from Hislop College, Nagpur. In between 1983 and 1986 pension of
the appellant was finalized but the service of the appellant from
21.6.1950 to 18.7.1960 was not counted. The Government of Maharashtra by
Government Resolution No.NGC 1284/106150/ 994/84)/VS-4 dated 11.3.1992
decided to count past government service for computation of pension in
respect of all employees retiring on or after 1.10.1982. In view of such
Resolution, though the appellant was entitled to get his past services
counted for fixation of pension, the same were not considered. Being
aggrieved, the appellant made representations followed by reminder dated
10.2.2000. On 30.11.2005, respondent No.4, the Administrative Officer,
Higher Education, Nagpur Division, Nagpur recommended the appellant’s claim
for refixation of pension to the respondent No.5, Senior Accounts Officer,
Accountant General-II, Nagpur, Maharashtra. Respondent No.5 in turn
rejected the said recommendation. On a representation made by the
appellant, the Joint Director by his letter dated 30.12.2005 requested
respondent No.2, the Director, Higher and Technical Education, Pune to take
into consideration the services rendered by the appellant between 21.6.1950
and 18.7.1960 for computation of pension in view of Government Resolution
dated 11.03.1992. In spite of such recommendation made by the Joint –
Director, no action was taken. The appellant then preferred the writ
petition before the High Court which was dismissed by the impugned judgment
and order dated 23.04.2012.
5. Learned counsel for the appellant placed reliance on Rule 48(3) of
the Rules, 1982 and submitted that an interruption between two spells one
rendered under the Government and other under the College should be treated
as automatically condoned. Further, according to him, the appellant is
entitled for counting the earlier period from 21.06.1950 to 18.07.1960 for
re-fixation of pension in terms of Government Resolution dated 11.3.1992.
6. On the other hand, according to respondents as per Rule 46(1) of
the Rules, 1982 the service of the appellant prior to 19.07.1960 were
liable to be forfeited; as resignation entails forfeiture of past service.
7. In the case in hand, the appellant has claimed fixation of pension
by counting the earlier period of service in the light of Government
Resolution dated 11.3.1992. No such claim has been made under Rules, 1982.
8. The Government of Maharashtra, from its Education and Employment
Department issued Resolution dated 11.3.1992. Referring to its earlier
Resolution No. NGC 1283/(865) vs-4 dated 21.7.1983 it was infomred that
pension scheme shall also be made –
applicable to teaching and non-teaching employees in non-agricultural
universities and non-government colleges affiliated to it from 1.10.1982.
For calculation of qualifying service under the said Resolution, the
services rendered in grant-in-aid non-government colleges/higher secondary
schools/secondary schools are also to be taken into account. In case, the
employee working on the post of Lecturer/Professor in the colleges
affiliated to it has accepted the appointment on the post of
Lecturer/Professor in Government service, in that event, his service on the
post of Lecturer/Professor in non-agricultural Universities and non-
government colleges affiliated to the Universities are to be counted for
determination of pension under Government Resolution No. SCT-1584/(1567)
Admn.-2 dated 17.10.1986.
Considering the above aspects, the Government by resolution dated
11.3.1992 decided as follows:
“3). Now the government issues the Order that, the previous
services of teaching/non-teaching employees retiring from non-
agricultural universities and grant-in-aid non-government affiliated
colleges rendered on any of post in government service, to which the
Government Pension Scheme is applicable, may be taken into account for
the purpose of pension. Moreover, previous services of employees
retiring from government posts to which the Government Pension Scheme
is applicable, rendered in on teaching/non-teaching posts in non-
agricultural universities and grant-in-aid non-government colleges
affiliated to it, may be taken into account for the purpose of
pension. This Order will be applicable to the employees retiring on
and after 1.10.1982. However, the benefit of previous service by
condoning break in service will –
be granted only if there is compliance of Conditions contained in Rule
48(1) of Maharashtra Civil Services (Pension) Rules.”
From the bare reading of the Resolution dated 11.3.1992, it is
clear that the Resolution is applicable to the employees retiring on or
after 1.10.1982.
9. Admittedly, the appellant retired from the Hislop College on
24.05.1983 i.e. after 1.10.1982; therefore, the appellant is entitled to
the benefits in terms of Resolution dated 11.3.1992.
10. Rule 46 of the Rules, 1982 relates to forfeiture of service on
resignation. Under Rule 46(1) “resignation from a service or a post
entails forfeiture of past services”. Sub rule (4) of Rule 46 deals with
the cases where the resignation shall not entail forfeiture of past
services. But the said Rule 46 is not applicable to the appellant as he
neither claimed the benefit of pension under the said Rules nor he was paid
pension in terms of the said Rules.
11. As per paragraph 3 of Resolution dated 11.03.1992 the benefit of
previous service by condoning break in service can be granted only if there
is compliance of conditions contained in Rule 48(1) of the Rules, 1982,
which reads as follows:-
“48. Condonation of interruption in service.-(1)The appointing
authority may, by order, condone interruptions in the service of a
Government servant:
Provided that-
a) –
b) the interruptions have been caused by reasons beyond the
control of the Government servant;
c) the total service pensionary benefit in respect of which
will be lost, is not less than five years duration,
excluding one or two interruptions, if any; and
d) the interruption including two or more interruptions, if
any, does not exceed one year.
(2) The period of interruption condoned under sub-rule (1) shall not
count as qualifying service.
(3) In the absence of a specific indication to the contrary in the
service record, an interruption between two spells of civil service
rendered by a Government servant under Government, shall be treated
as automatically condoned and the pre-interruption service treated
as qualifying service.
(4) Nothing in sub-rule (3) shall apply to interruption caused by
resignation, dismissal or removal from service or for participation
in a strike.
(5) The period of interruption referred to in sub-rule (3) shall not
count as qualifying service.”
12. As per Rule 48 (3) in the absence of a specific indication to the
contrary in the service record, an interruption between two spells of civil
service rendered by a Government servant under Government, shall be treated
as automatically condoned and the pre-interruption services to be treated
as qualifying service.
13. In the case of the appellant, there is notional break in service.
He resigned from the Government service on 18.07.1960 and joined the post
of Lecturer in Hislop College, Nagpur on the same day i.e. 18.07.1960.
Further, higher authorities have recommended to add –
the earlier period of service for determination of pensionary benefit.
Being so, in absence of a specific direction to the contrary in the
service record, the interruption between two spells of service rendered by
the appellant under the Government shall be treated as automatically
condoned; the earlier service rendered by appellant is to be counted
towards qualifying service.
14. In view of the provisions of Rule 48 read with Government
Resolution dated 11.3.1992, we hold that the appellant is entitled for
counting the service earlier rendered between 21.06.1950 to 17.07.1960 for
determination of pension. The High Court failed to notice the relevant
provisions and wrongly held that the appellant is not entitled to get the
benefits of his past services in view of Rule 46(1) of the Rules, 1982,
which is not applicable in the case of the appellant. The High Court also
erred in rejecting the claim on the ground of delay and failed to notice
that the cause of action for grant of pension arises every month. In the
present case what we find is that the appellant made representation at an
appropriate stage and such request was accepted by respondent No.4, the
Administrative Officer, Higher Education, Nagpur who recommended respondent
No.5, the Senior Accounts Officer, Accountant General-II, Maharashtra to
count the period and to take into consideration the fact that the appellant
has rendered more than 33 years of service. Even the Joint Director –
by his letter dated 30.12.2005 recommended to respondent No.2, Director,
Higher and Technical Education, Pune to count the period from 21.06.1950 to
18.07.1960. Thereby, the appellant also explained the delay in moving the
High Court.
15. For the reasons aforesaid, we set aside the impugned judgment and
order dated 23.04.2012 passed by the Division Bench of High Court of
Judicature at Bombay, Nagpur Bench, Nagpur and direct the respondents to
count the period of service rendered by the appellant from 21.06.1950 to
18.07.1960 for the purpose of computation of pension and pay the
consequential benefits including arrears of pension within three months
from the date of this judgment. On failure, the respondents shall be
liable to pay interest @ of 8% from the date of filing of the writ
petition till the amount is paid.
16. The appeal is allowed with aforesaid observations and directions.
No costs.
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
APRIL 11, 2014.
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