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Gokhale (B.G.) Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 19 of 1965
Judge
Reported in(1969)ILLJ654Kant; (1967)1MysLJ421
ActsStates Reorganization Act, 1956 - Sections 115, 115(7), 116 and 117; Bombay Pension Rules; Mysore Civil Services Rules, 1958 - Rules 2, 8(42) and 27(2); Bombay Civil Services Rules - Rules 5, 161 and 252
AppellantGokhale (B.G.)
RespondentState of Mysore and anr.
Excerpt:
.....of the power of ancillary and incidental power i.e. for ensuring prompt tax remittance to the state, as the only possible loss to the state is loss of revenue for the period of delay and when the loss is compensated by other statutory provisions providing for levy of penalty should be within reasonable limits to act as a sufficient or mere deterrent and not reaching the levels of confiscation. when such levels are reached, it becomes a tax in the nature of tax on income being at 10% of the tax liability. it is to be noticed that the 10% tax liability may not even be the entire profit of the dealer and such levy of penalty while therefore becomes an oppressive levy being confiscatory of a percentage of the tax liability, partakes the character of a levy of tax on income, as the..........of the states reorganization act was entitled to issue such directions as may be necessary to the state government in relation to the protection of the service conditions of the allottees. accordingly the central government by its letter dated 27 march, 1957 issued instructions to the state government specifying the protection of service conditions. that letter has been published by the state government on 11 may, 1957. paragraph 4 of that letter relates to pension according to which, 'every permanent government servant affected by reorganization should be allowed the option to elect either the rules of pension applicable to him immediately before the date of reorganization or the rules adopted by the new or reorganized states to which he is allotted.' 3. the petitioner opted for the.....
Judgment:
ORDER

Kalagate, J.

1. The petitioner who is a retired District Treasury Officer has filed this writ petition under Art. 226 of the Constitution claiming the following reliefs :

(1) A writ of mandamus or other appropriate writ directing respondent 1, i.e., the State of Mysore, to grant to the petitioner the benefit of the Bombay Pension Rules as on the date of his superannuation.

(2) A writ of mandamus or other appropriate writ directing respondent 1 to grant the petitioner the special pay at the rate of 20 per cent. of the salary under the Mysore Civil Services Rules.

2. The basis for the two claims made by the petitioner, as we gather from his affidavit, is as follows : The petitioner was in the service of the former State of Bombay and, consequent upon the reorganization of States, his services were allotted to the new State of Mysore. Since he was an allottee, his conditions of service before the date of allotment are protected under the proviso to sub-section (7) of S. 115 of the States Reorganization Act, 1956. The Central Government under S. 117 of the States Reorganization Act was entitled to issue such directions as may be necessary to the State Government in relation to the protection of the service conditions of the allottees. Accordingly the Central Government by its letter dated 27 March, 1957 issued instructions to the State Government specifying the protection of service conditions. That letter has been published by the State Government on 11 May, 1957. Paragraph 4 of that letter relates to pension according to which,

'every Permanent Government servant affected by reorganization should be allowed the option to elect either the rules of pension applicable to him immediately before the date of reorganization or the rules adopted by the new or reorganized States to which he is allotted.'

3. The petitioner opted for the Bombay Pension Rules and the relevant rules governing the pension framed by the State of Bombay (now the State of Maharashtra) are found in Chap. XI of the Bombay Civil Services Rules Manual. Rule 252 is a relevant rule which provides for the superannuation and pension. It states :

'A Government Servant, who retires from pensionable service on or after attaining the age of superannuation fixed by the relevant clause of rule 161, shall be granted a superannuation pension.'

4. Since the petitioner's service is a pensionable service. He is entitled to claim superannuation under this rule. Now the age of superannuation is fixed by rule 161 of the Bombay Civil Services Rules which appears in Chap. IX of the said manual. Rule 161(a) provides :

'Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant, other than a ministerial or inferior servant is the date on which he attains the age of 55 years.'

5. As the petitioner does not belong to an inferior service, his retirement is when he attains the age of 55 years. Then reference is made to rule 5 appearing in Chap. I relating to general rules which provides that a Government servant's claim to pension is regulated by the rules in force at the time when the Government servant retires or is discharged from the services of the Government. These are the three relevant rules to which reference has been made by the petitioner in his affidavit for seeking the benefit of the Bombay Pension Rules.

6. It is then stated that rule 161 which fixes the age of superannuation as 55 years has been amended by the State of Maharashtra by its resolution dated 11 February, 1963. By that resolution the age of retirement has been raised from 55 to 58 years and it is stated that his claim for pension should be decided by the rule in force at the time when he retired from service. The petitioner has retired from service on 17 September, 1963. The resolution has come into force on 11 February, 1963 and the petitioner therefore claims that rule 161 as it stood amended at the time of his retirement is the rule which governs his claim for pension and therefore he is entitled to claim the pension in accordance with the amended rule; in other words he claims to continue in service till he attains the age of 58 years. That is how the petitioner has made a claim for his pension.

7. The petitioner, as we have stated, has also claimed special pay, and the circumstances under which this claim is made is stated by him in his affidavit. The Government by its order dated 3 March, 1962 entrusted to the petitioner the work of conducting a special survey in respect of the disposal of N.D.C. bills pertaining to the period prior to 1 November, 1956. The Government in its letter mentioned the facilities to be provided to the petitioner when he conducts the investigation and then stated that the petitioner will draw travelling allowance for the journeys and halts during the course of this investigation. The petitioner carried out the work of investigation and submitted his report on 14 September, 1963, i.e., three days prior to his retirement. Nearly six months after he retired, he made a claim in writing on 9 March, 1964 to the Government of Mysore for grant of special pay for the special duty performed by him in addition to his own duties as a Treasury Officer. However, the Government by its letter dated 6 April, 1964 declined his claim for special pay. He again requested the Government by his another letter dated 18 September, 1964 and the Government again declined his request by its letter dated 27 October, 1964. These are the circumstances under which he claimed the special pay for the additional work done by him. Since the Government refused to grant him the reliefs claimed by him, he has filed this writ petition on 26 November, 1964 claiming the two reliefs as stated before.

8. We will now proceed to consider whether the petitioner is entitled to claim the reliefs which he has asked for. It is not disputed that since the petitioner has opted to claim the benefit of pension under the Bombay Civil Services Rules, his claim for pension must be considered with reference to the relevant Bombay Civil Services Rules relating to pension. Sri Datar, the learned counsel appearing for the petitioner, essentially relied upon the three rules i.e., rules 5, 161 and 252 of the Bombay Civil Services Rules. He contends that under rule 5 petitioner's claim for pension is regulated by the rule in force at the time of his retirement and according to him the relevant rule 161 which originally fixed the age of retirement as 55 years has been amended by the State of Maharashtra on 11 February, 1963 under which the age of retirement of a Government servant is fixed when he attains the age of 58 years, and therefore, he states the relevant rule which is in force at the time when the petitioner retired is rule 161 as it stood amended, and therefore he will be entitled to claim the pension in accordance with the amended rule, and his pension should therefore be fixed taking the age of superannuation when he attains the age of 58 years. The question therefore is whether the petitioner is entitled to claim pension relying on the amended rule.

9. By virtue of S. 116 of the States Reorganization Act, 1956, the petitioner after his allotment to this new State of Mysore became a civil servant of the new State from 1 November, 1956 and thereafter he would be normally governed by the Civil Services Rules of the new State of Mysore. But under the proviso to S. 115(7) of the States Re-organization Act his service conditions are protected to the extent mentioned in the proviso to Sub-section (7) of S. 115. In addition to this, the petitioner has opted to claim the pension under the Bombay Civil Services Rules. Therefore, the petitioner would be entitled to claim pension under the Civil Services Rules of the erstwhile State of Bombay as they obtained on 31 October, 1956, and that is also what has been provided for by the proviso to rule 2 of the Mysore Civil Services Rules which came into force on 1 March, 1958. Under the proviso it is provided that

'every person allotted or deemed to be allotted to serve in connexion with the affairs of the State of Mysore under S. 115 of the States Reorganization Act, 1956 (Central Act 37 of 1956), shall continue to be governed by the rules applicable to him before 1 November, 1956 unless such person exercises his option to be governed by Part IV of those rules before 1 July, 1959.'

10. Therefore, it is clear that the petitioner can claim pension under the Bombay Civil services Rules relating to pension as they stood prior to 1 November, 1956. If so, he would not be entitled to claim the benefit of rule 161 of the Bombay Civil Services Rules as amended after 1 November, 1956. Therefore, rule 161 as it stood prior to 1 November, 1956 would be applicable to the petitioner and under that rule the age of superannuation of the Government servant is fixed when he attains the age of 55 years. Therefore, that rule must be held to be the rule in force at the time when the petitioner retired from service in accordance with rule 5 of the Bombay Civil Services Rules. The petitioner will thus be entitled to claim his pension in accordance with rule 252 which as I stated before provides that the Government servant who retires from pensionable service on or after attaining the age of superannuation fixed by the relevant clause of rule 161, shall be granted a superannuation pension, and in our view rule 161, as it stood prior to amendment, is the relevant rule in force at the time when the petitioner retired from service and, therefore, the age of superannuation of the petitioner would be when he attained the age of 55 years and not 58 years as claimed by him under the amended rule.

11. Further, it is not known how the petitioner who is now a civil servant of the new State of Mysore whose service conditions relating to pension as they stood on 1 November, 1956 and which are protected to the extent mentioned by proviso to S. 115(7) of the States Reorganization Act can claim the benefit of the rule which is amended after 1 November, 1956. It is only civil servant in the State of Maharashtra who can claim the benefit of the amended rule 161 by which the age of superannuation of a Government servant is fixed, when he attains the age of 58 years. Therefore when the petitioner claims the benefit of the amended rule, what he is virtually claiming is to treat him as a civil servant in the State of Maharashtra. Such a claim is clearly unsustainable in view of S. 116 of the States Reorganization Act which states that a civil servant who is allotted to a new State consequent on the reorganization of States, becomes civil servant of the new State to which he is allotted after 1 November, 1956. Further any amendment made to the rule by the State of Maharashtra after 1 November, 1956 cannot bind the new State of Mysore. Therefore, in any view of the matter, the petitioner cannot claim the benefit of the amended rule.

12. In our view, therefore, the petitioner's claim for pension based on the amended rule 161 cannot be sustained and must be rejected.

13. Now, we will consider the petitioner's claim for special pay. As we have stated earlier, he has based his claim on the work done by him which was entrusted by the State Government by its letter dated 3 March, 1962. To sustain this claim for special pay, Sri Datar relies on rule 8(42) of the Mysore Civil Services Rules, 1958. That rule defines 'special pay' as under :

'special pay' means an addition of the nature of pay to the emoluments of a post or of a Government servant, granted in consideration of (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or (c) the unhealthiness of the locality in which the work is performed.'

14. Sri Datar contends that the petitioner would be entitled to claim special pay taking into consideration the arduous nature of the duties which the petitioner was asked to perform in addition to the work he was under an obligation to perform and since the petitioner has done the additional work, he will be entitled to claim special pay. In our view special pay is paid to a Government servant in addition to his normal pay, and therefore, there must be an order made by the Government granting special pay when a Government servant is entrusted with any specially arduous nature of duties to be performed by him, in addition to his own pay, and unless there is an order made by the Government at the time of the entrustment of the work, the Government servant would not be entitled to claim special pay. In the instant case, as we find, all that was granted to the petitioner when he was entrusted with the work to be performed by him, was the travelling allowance for journeys and halts involved during the course of the investigation. Therefore, it is obvious that the Government did not make the grant of special pay when it entrusted the petitioner with the conduct of the special investigation, in relation to the disposal of N.D.C. bills and the petitioner will not, therefore, be entitled to claim special pay. Since there is no order of the Government granting special pay, there is no right created in the petitioner under which he can claim special pay. Therefore, we cannot grant his request for special pay.

15. However, before we close we would like to observe that the petitioner has for a considerable period of time conducted the investigation in relation to the disposal of the N.D.C. bills for a period of thirteen months. This has been in addition to his own work as a Treasury Officer. The Government as we gather from the materials placed before us had the benefit of the work done by the petitioner, since he has taken great pains for accounting of 33 N.D.C. bills for the aggregate value of Rs. 21,955.88. The Government, in view of the work done by him, might sympathetically consider whether any gratuitous payment should be made to the petitioner for the work done by him. His claim for such a gratuitous payment or honorarium may, perhaps be considered by the Government under rule 27(2) of the Mysore Civil Services Rules, 1958, which enables the Government to pay as bonus or honorarium to a Government servant for work done out of office hours and beyond the regular duties of his office.

16. With these observations, for the reasons stated above, we dismiss this writ petition, but in the circumstances we make no order as to costs.


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