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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.