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Kewal Kumari and anr. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 138 of 1984
Judge
Reported in1985(1)WLN772
AppellantKewal Kumari and anr.
RespondentThe State of Rajasthan
DispositionPetition allowed
Cases Referred and Minerva Mills Ltd. v. Union of India
Excerpt:
rajasthan service rules - rules 244 and 261 and ch. xxiii--family pension--b served government for more than 20 years--transferred to university and opted for it to avoid discharge--held, petitioners are entitled to family pension.;the option of dr. bhandari cannot be considered to be voluntary. he had no option except to elect to serve the university. that was the only course instead of facing discharge.;having served the government for more than 20 years, it would be highly unjust that the govt. servant may be deprived of the benefit of family pension after his death by looking at the rules in the technical manner, a situation which cannot be countenanced is the present legal and constitutional set up, which has very much weighed with as and it should be taken that dr. d.r. bhandari had..........yes(2) gratuity - yes(3) provident fundin case, i propose to return early, after completion of 30 years service, i shall be eligible to claim pension earlier. the salary drawn at the time of option was 1500/- p.m.sd/-signaturename in block letters:date: designation--cotton botanist,place: sri ganganagarnote: (1) out of the three alternative given above that which is not opted by him may be scored out (2) the government order number and date, which are not applicable to him, may be scored out.3. dr. bhandari, was absorbed in the university service on 1-4-1977, as, he became an employee of the university with effect from 1-4-1977. dr. d.r.bhandari expired while in service on 2-3-1980. the petitioner's case is that dr. d.r. bhandari having completed qualifying service of 20 years, he.....
Judgment:

M.C. Jain, J.

1. By this writ petition, the petitioners seek the grant of family pension.

2. The facts of the case are not in dispute. Dr. D.R. Bhandari, the husband of petitioner No. 1 entered into the service of the Government of Rajasthan as Research Assistant in the Maize Breeding Scheme vide Order dated 29-3-1955 in the Department of Agriculture. In pursuance of the recommendation of the National Commission on Agriculture that all fundamental and applied research in Agriculture and allied sciences be under taken by the University, the Governor of Rajasthan was pleased to order that all research activities be transferred from Agriculture Department to the University of Udaipur with effect from 1-1-1976 and all responsibility for research in Agriculture and allied sciences will vest in the University of Udaipur. As a result of transfer of the Research Wing of the Agriculture Department, the result of transfer of Research Work were transferred to the University, under the order of the Government No. F ii(I) Agrl./Gr 1/74, dated 17-12-1975. The relevant para of Clause 6 of the Order reads as under:

6. The Services of the Government Servants employed in Research Wing of the Directorate of Agriculture shall be transferred to the University of Udaipur on the following terms and conditions:

(1) Transfer of employee:

(i) All permanent Government Servants and temporary Government Servants, who have been regularly recruited and appointed to the various categories of posts in the Agriculture Research Section of the Agriculture Department, shall stand transferred to the University pending final absorption in the University, the staff shall be on deputation to the University but no deputation allowance shall be paid. The process of the absorption should be completed within a period of three months. The personnel engaged in research in the State Directorate of Agriculture will have the choice of joining the University or will in the alternative be returned.

(5) Pension/Provident Fund benefits:

Pensionary benefits shall be admissible to them in accordance with provisions of Sub-clause (1) of Clause II of paragraph I of 60 Order No. F. 1(11) FD (Exp. Rules)/65 dated 23-7-1968 referred to shows (Relevant extract attached annexure).

Para 8 of the order relates to Discharge from Government Service, which is also reproduced as under for facility of reference:

(8) Discharge from Government Service:

If a permanent Government Servant whose services have been taken over by the University elects put to serve the University, he shall from the date of relief he treated to have been discharged owing to abolition of post.

The relevant para of the Finance Department Order dated 23-7-1968 is as under:

(C) Pensionary /Provident Fund benefits:

(1) An employee who is under Pension Scheme shall have the option to accept either of the following benefits;

(i) to receive proportionate pension/gratuity according to rules, for service rendered under the Government, or

(ii) to accept in lieu of pension and any other form of retiring benefits of gratuity that may be adjustable under (1) above, Government Contribution to the Provident Fund maintained by the Autonomous Body/Public Sector Corporation of an amount equal to 8% of his monthly pay drawn from time to time during service under Government with simple interest at the rate applicable from time to time and also special contribution if adjustable to employee governed by Jodhpur Contributory Provident Fund Rules. The amount of the contribution together with interest thereon will earn simple interest at two per cent per annum from the date of transfer of service till such time it became payable.

Provided that if option at (i) above is exercised by the Government Servant concerned he will not be eligible to receive family pension benefit admissible to him under Chapter XXIII, XXIII-A of the Rajasthan Service Rules on the date of transfer of his services to Autonomous Bodies/Public Sector Corporation etc.

No deduction of portion of gratuity where it is required to be surrendered in terms of Rule 268G of the Rajasthan Services Rules will be made in their cases

(3) The amount of pensionary and provident fund benefits referred to in Clauses (1) and (2) above shall become payable to the Government Servant:

(a) attaining the age of 55 years, or completing 30 years qualifying service (including his service under the Government) in the Autonomous Body/Public Sector Corporation concerned, or

(b) Retiring prematurely under circumstances, which would not have resulted in a forfeiture of pensionary benefits, had he continued in Government Service.

Initially, the petitioner was sent on deputation. Under the Government Order dated 27-12-1975, the petitioner was asked to give his option for service in the University of Udaipur. Consequently, the petitioner gave his option as under:

Option

Under para (6) of the terms and conditions to the University Service issued under Order No. F. ii(i) Agr/Gr. 1/74 dated Jaipur the 27th December, 1975 from the Agriculture Production Commissioner and Secretary to the Government of Rajasthan Jaipur and Order No. F. ii(i) Agrl./Gr. 1/74 dated March 25, 1977 from the Asstt. Secretary to the Government, Agr. (Gr. I), Department, Rajasthan, Jaipur. My name is at S. No. 42 of the Order

I being appointed on 11-4-1955 and having put in 21 years, 11 months, 28 days service on the date of transfer of service i.e. 1-4-1977.

(1) Pension - Yes

(2) Gratuity - Yes

(3) Provident Fund

In case, I propose to return early, after completion of 30 years service, I shall be eligible to claim pension earlier. The salary drawn at the time of option was 1500/- p.m.

Sd/-

Signature

Name in Block Letters:

Date: Designation--Cotton Botanist,

Place: Sri Ganganagar

Note: (1) Out of the three alternative given above that which is not opted by him may be scored out

(2) The Government Order Number and date, which are not applicable to him, may be scored out.

3. Dr. Bhandari, was absorbed in the University Service on 1-4-1977, as, he became an employee of the University with effect from 1-4-1977. Dr. D.R.Bhandari expired while in service on 2-3-1980. The petitioner's case is that Dr. D.R. Bhandari having completed qualifying service of 20 years, he became entitled to pension for the periods of the service on the basis of salary last drawn by him In view thereof, the petitioners approached the University for grant of pension including family pension. The University in its turn, proceeded to write to the Government expressing its willingness to remit to the State Government provident fund contribution along with interest lying in the account of late Dr. Bhandari. But the Government of Rajasthan declined to grant the family pension under the Rules vide Annx 8 dated 9-6-1981. The Petitioners further submitted representations to the Governor of Rajasthan but to no effect The petitioners have referred to an order of Dr. D.S. Saraswat, whose services were transferred to the University of Udaipur and who was permanently absorbed by the University. Thereafter, he was taken back on deputation by the Government of Rajasthan and was retained in service. After more than 7 years in his case, the period spent in the University service was considered to be the period of Government Service for the purpose of pension on the condition that the University of Udaipur shall refund to the State Government, employer's contribution for the period he was in the University Service towards his provident fund along with interest therein The petitioners have claimed family pension on the ground that Dr. D.R. Rhandari had to his credit more than qualifying service of 20 years & as such, when he was transferred to the University, he became entitled to the proportionate pension and after his death in lieu of pension, the petitioners became entitled to the family pension. Even otherwise, for the purpose of pension, in case of Dr. D.S. Sarsawat more than 7 years period of University Service has been treated as the period spent in the Government Service then the period spent by Dr. Bhandari, in these circumstances, could have also been treated as the period spent in the Government Service for the purpose of pensionary benefits.

4. The reply of the State Govt. is that after absorption of Dr. D.R. Bhandari in the University service with effect from 1-4-1977, he ceased to be a Government employee and his lien was terminated automatically on account of absorption Dr. Bhandari was only entitled to the Provident fund as he was an University employee. It was further stated that when Dr. Bhandari gave option for absorption in the University, the family of Dr. Bhandari after his death was not entitled to the family pension in accordance with the terms and conditions mentioned in the Finance Department Order dated 23-5-1968 It was also stated that the kind of special benefit is not permissible and the State Government does not grant any ex gratia pension. The Finance Department Order denies the benefits of family pension to such employees. The case of Dr. D.S. Saraswat is not akin to the case of Dr. Bhandari.

5. I have heard Mr. M. Mridul, learned Counsel for the petitioners and Mr. R.P. Dave, learned Deputy Government Advocate for the State.

6. The principal contention of Mr. Mridul, which he has vehemently and strenuously urged, is that if Dr. Bhandari would have taken voluntary retirement he would have been entitled to pension and after his death the family pension as well would have been payable under Chapter XXIII. Dr. D.R. Bhandari in view of the policy decision of the Government to transfer the Research Wing to the University had no option except to opt for University service also he would have faced discharge from service on account of abolition of the post In such a situation, the case of voluntary retirement and the case of Dr. Bhandari cannot be placed on separate footing. In both the circumstances there is a severance of relationship of master and servant. After voluntary retirement one withdraws from or leaves the service and in a case of transfer and absorption as well severance of relationship arises. When the Government servant retires from the service after completion of qualifying service his family is entitled, to family pension under Rule 261 of the Rajasthan Service Rules (for short 'the RSR'), the family of Dr. D.R. Bhandari cannot be denied the benefit of family pension. There is no rationale for treating that class of the Government servants differently, who after completing 20 years service have been transferred to the other Autonomous Bodies. He pointed out that under Rule 261 of the RSR, there is no mention of the word 'Government' preceding the word 'officer'. It simply provides that if an officer dies whether while still in service or after retirement on completion not less than 20 years qualifying service, his family is entitled to grant of family pension in terms of Rule 262. This rule is, therefore, applicable to the case of Dr. D.R. Bhandari as he has died after completion of more than 20 years qualifying service. Even otherwise Mr. Mridul, learned Counsel for the petitioners submitted that the word 'retirement' under Rule 261 should not be given a technical meaning and should be made applicable even to those officers who after completing 20 years of qualifying service, have been transferred to the Autonomous Bodies. Virtually, that amounts to retirement from Government Service. It was urged by Mr. Mridul that Dr. Bhandari had put in 21 years, 11 months and 20 days service. The rules relating to the grant of pension and family pension should be construed liberally taking into account the preamble of the Constitution and relevant directive principles of the State Policy, so as to advance the object of such beneficial provisions and schemes.

7. Mr. R.P. Dave, learned Deputy Government Advocate on the other hand, submitted that the provisions of age will not apply to the case of Dr. D.R. Bhandari and as the petitioners can not claim any benefit under the provisions of RSR. Dr. D.R. Bhandari having opted for the University Service for grant of pension and family pension, his case would be governed by the order of the Finance Department dated 23-7-1968. Proviso to clause relating to the pensionary and provident fund makes it clear that if option at S. No. 1 i.e. to receive proportionate pension/gratuity, is exercised, he will not be eligible to receive benefit of the family pension admissible under Chapter XXIII, ]XXIII-A and XXIV of the RSR, on the date of service transferred to the Autonomous Body. In view of the aforesaid order, the petitioners cannot claim any family pension benefits. Mr. Dave referred to a decision of this Govt. in Ramchandra Purohit v. State of Rajasthan 1974 RLW 494.

8. I have given my serious and anxious consideration to the rival submissions of the parties. It is true that Dr. D.R. Bhandari opted for the University service and the option was under para 6(5) of the Government Order dated 7-12-1975, which incorporated the Finance Department Order dated 23-7-68 and as per that order the benefit of the family pension is not admissible to the Government Servant, who has opted for proportionate pension and gratuity. In Ramchandra Purohit's case (supra), the facts are somewhat similar. In that case, the petitioner was in Government service as Lecturer and on account of transfer of three colleges by the Government to the University of Rajasthan, the Teaching staff was also transferred. In that case as well, the petitioner opted for the University service and was absorbed in the University Service. The petitioner in that case, claimed compensation pension under the Government Order dated 7-7-1962. This Court observed that the compensation pension normally is admissible on the discharge from the Government Service owing to the abolition of permanent post. In that case, the abolition of the post did not take place in the normal summer but it was on account of transfer of three colleges of the University. It was held that the matter was governed by the agreement and not by Rule 215 in its strict letter. This contention was negatived that if the Government servant dies before attaining the age 55 years then the pensionary benefit will be available to the dependents, as such a construction be placed on the terms of the agreement or Rule 215 of the RSR. The learned Judge observed since the meaning of the terms of the agreement embodied in Annx. A or Annx. B is clear, there is no room for any laboured construction and the terms shall be taken in their natural sense. The learned Judge also proceeded to observe that double benefits cannot be made available to a civil servant, when he has been transferred from Government service to the University service. It may be stated that the learned Judge proceeded to decide the matter on the basis of the terms of the agreement or construction of Rule 215 of the RSR and the matter has not been considered in the light of Article 14 of the Constitution.

9. Mr. Mridul, referred to the decision of the Supreme Court in S.S. Nakara v. Union of India AIR 1985 SC 130 : 1983 (1) SCC 385. In that case, the challenge was in the office memorandum No. 1.19(2)-lV-79 dated 25-5-1979, whereby, the formula if pension was liberalized but was made applicable to the Government Servants, who were in service on March 31, 1979 or retired from service on or after that date. The liberalised pension formula was applicable to the employee retiring on or after the specified date. It was held that the classification between the pensioners on the basis of the date of retirement specified in the notification is arbitrary and violative of Article 14 of the Constitution. The beneficial part was retained and was made applicable to all the pensioners. Mr. Mridul submitted that Rule 261 should equally be made applicable to all those Govt. Servants in whose case service relations are severed after completion of the qualifying service and distinction should not be made in cases, when severance is brought about by voluntary retirement or it is brought about by voluntary or involuntary option for service in the Autonomous Bodies.

10. Mr. Mridul, also placed reliance on Union of India v. Bichuratan Malik and Ors. : [1984]3SCR550 and N.L. Abhakaran v. Union of India : [1984]3SCR552 . In all these cases, the pensionary benefits have been given to all the pensioners from the date on which the pensionary benefits have been made available to a particular class of Government Servant.

11. While examining the beneficial provisions relating to pension as well as family pension, what should be the approach of courts, has been considered in S.S. Nakaravs case (supra). In that case, after examining the Raison D'etre for pension in para 30, it is was observed that:

The discernible purpose then underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them.... Jurisprudence, 2nd, 821),

Their Lordships stated that since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution. Their Lordships referred to Article 38(a), 39(d), 39(e), 41 and 43(3). Article 41 obligate the State within the limits of its economic capacity and development, to make effective provision for assuring the right to work to education and to provide assistance in gaps of unemployment, old-age, sickness and disablement and in other gaps of under served want. Their Lordships also recalled the preamble and referred to the observations made in Randhirsingh v. Union of India 1982 (1) SCC 818 and Minerva Mills Ltd. v. Union of India : AIR1981SC1709 ). Their Lordships observed as under:

Then comes the old age in the life of everyone, be he a monarch or a Mahatrna, a worker or a pariah. The old age overtakes each one death being the fulfillment of life providing freedom from bondage. But here socialism aims at providing an economic security to these who have rendered upto society what they were capable of doing when they were fully equipped with their mental and physical growth. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, social aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Article 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative, Executive and Judiciary in strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist' welfare society is a long march but during this journey to the fulfillment of goal every State action whenever taken must be directed, and must be so interpreted, as to take the society one stage towards the goal.

Their Lordships concluded as under:

It, therefore appears to be well established that while interpreting the Constitutional validity of legislative administrative action, the touchstone of directive principles of State Policy in the light of the preamble will provide a reliable yard stick to hold one way or the other.

12. Chapter XXIII of the RSR deals with family pension and Rule 261 lays down conditions for grant of family pension. I read Rule 261:

251. Condition for grant--A family pension not exceeding the amount specified in Rule 262 may be granted to the family of an officer who dies, whether while still in service or after retirement after completion of not less than 20 years qualifying service or a period of ten years.

Provided that the period of payment of family pension will not be same extent beyond a period of 5 years from the date on which the deceased officer retired or on which he would have retired on a superannuation pension in the normal course, according as the death takes place after retirement or while the officer is in service.

13. The condition for grant of family pension is that the officer should also while still is service or after retirement after completion of not less then 20 years qualifying service. Under Rule 244(1), a Government Servant has option to seek retirement on completion of 20 years qualifying service. This was the period of qualifying service at the relevant time in the present case. From time to time, this period of qualifying service has varied. Dr. D.R. Bhandari, thus, could take retirement under Rule 244(1). He had more than 20 years service to his credit. Had be taken retirement, Rule 261 would have been attracted in his case. After seeking retirement had he died, his family could have been entitled to the family pension under Rule 261. The word 'retirement' in Rule 261 may mean retirement in any form and not the specific manner, in which the retirement may be brought about under the Rules. In the Dictionary sense retirement mens, withdrawal from service. Such a withdrawal may be brought about by seeking retirement or on attaining the age of superannuation or joining of or absorption in other service on being transferred. If the word 'retirement' is construed or interpreted in a comprehensive sense, the case of Dr. Bhandari, will fall within the ambit of Rule 261. On account of absorption in the University services, virtually retirement from Government service is brought about and construed in this sense, Rule 261 would be attracted. Besides that there is no rationale behind denial of the benefits under Chapter XHIII to the family of the officials, if they have opted for service of the Autonomous Bodies, after completion of 20 years qualifying service. I repeatedly questioned the Deputy Government Advocate as to why this benefit has been denied and can be denied to the transferred officers. No reason was put forward. There does not appear to be any rationale in allowing the benefit to these, who retired after qualifying service and those who were 'transferred to the Autonomous Bodies on their option after completion the qualifying service. It is relevant to note that Dr. D.R. Bhandari had to face discharge, had he not opted for University service after taking over of his services by the University. Had he not elected for the University service from the date of relief, he would have been treated as discharged owing to abolition of the post as contemplated in para 8 of the Government Order dt. 27-12-75 quoted above. On his return from the University, there would have been no post and para 8 would have come into operation. Under para 8 after absorption question of election will not arise The officer has to elect before absorption and if he so elects, from the date of relief, he will be discharged. Under these circumstances, the option of Dr. Bhandari cannot be considered to be voluntary. He had no option except to elect to serve the University. That was the only course instead of facing discharge. Viewed in the light, his option should not be allowed to govern his case, whereby, he has been deprived of the benefits available to him under Chapter XXIII. Thus, viewing the matter from the point of interpretative and construing process or from the touch-stone of Article 14 of the Constitution, or involuntary character of option, Rule 261 Can be pressed into service by the petitioners and the petitioners can legitimately claim the benefits of family pension under Chapter XXIII.

14. It is note-worthy that the officers in the services of Government of India are entitled to the benefit of family pension, if they are transferred to Bodies or Public Sector undertakings in case these bodies or under-takings do not have such family pension schemes, as per the note referred to me.

15. As regards the contention based in the case of Dr. D.S. Sarswat, it may be stated that Dr. D.S. Sarsawat's case is not exactly similar to the case of Dr. D.R. Bhandari. Dr. D.R. Bhandari died while serving the University, whereas Dr. Saraswat returned back to the Government Service on deputation and thereafter was retained by the Government and more than 7 years period was treated as period of continuous Government Service for pension purpose. The Government had reckoned his University Service as continuous Government Service. So in the case of Dr. Bhandari as well for the purpose of pension, the period of University Service could have been so treated. The exclusive power could have been exercised in the manner, whereby, the benefit under Chapter XXIII in the particular circumstances of this case, could have been made admissible to the family of the deceased Dr. D.R. Bhandari. Having served the Government for more than 20 years, it would be highly unjust that the Government Servant may be deprived of the benefit of family pension after his death by looking at the rules in the technical manner, a situation which cannot be countenanced in the legal and constitutional set up, which has very much weighed with us and it should be taken that Dr. D.R. Bhandari had earned the benefit of family pension having more than 20 years qualifying; service. In my opinion, the petitioners, thus, are entitled to family pension under Chapter XXIII.

16. In the result the writ petition is allowed and it is directed that the State of Rajasthan shall grant family pension to the 'petitioners to the extent, it is admissible under the Rules. The parties are left to bear their own costs.


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