Dismissed

State of Rajasthan v. Brijendra Swaroop Saiwal Son of Late Shri Nawal Kishore

Rajasthan HC19 Aug 2023SAW/987/2022

Case brief

AI extract

What is this about?

Appeal against dismissal of writ petition challenging Tribunal order regarding pension benefit claim. Court held respondent's resignation to join RFC does not entail forfeiture of past service under Rule 25(2) of Rajasthan Pension Rules 1996 as he applied through proper channels, appealing dismissal.

What did the court decide?

Appeal against dismissal of writ petition dismissed; respondent not entitled to relist the claim as matter already settled.

State of Rajasthan Vs Brijendra Swaroop… — Pension and Retirement Benefits | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Special Appeal (Writ) No. 987/2022

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S.B. Civil Writ Petition No.1082/2016

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State Of Rajasthan, Through Its Principal Secretary, Public Health Engineering Department, Rajasthan, Jaipur.

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Chief Engineer, Public Health Engineering Department, Rajasthan, Jaipur.

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----Appellants

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Versus

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Brijendra Swaroop Saiwal Son Of Late Shri Nawal Kishore, D-18, New Lite Colony, Tonk Road, Jaipur. Retired From The Post Of Manager, Rajasthan Finance Corporation, Jaipur.

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Principal Secretary, Finance Department, Rajasthan, Secretariat, Jaipur.

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Director, Pension And Pensioners Welfare Department, Rajasthan, Jaipur.

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Rajasthan Finance Corporation, Through Its Managing Director, Jaipur.

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----Respondents

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For Appellant(s)	: Mr. Anil Mehta, Additional Advocate General with Mr. Prawal Mishra Advocate.
For Respondent(s)	: Mr. Mahendra Singh Advocate with Ms. Sejal Sharma Advocate.

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HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Judgment

19/08/2023

Heard.

This appeal is directed against order dated 30.03.2022 passed by the learned Single Judge whereby, the learned Single Judge has dismissed the writ petition filed by the State in the

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(2 of 6) [SAW-987/2022]

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matter of challenge to the order dated 13.10.2014 passed by the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur (hereinafter referred to as ‘the Tribunal’).

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Relevant factual matrix of the case quintessential for determination of the controversy involved in this appeal is that the respondent No.1 was working as Cost Assistant in the PHED Department of the State Government.

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In order to avail better service, respondent No.1 applied for appointment to the post of the Assistant Loan Officer in the Rajasthan Finance Corporation (hereinafter referred to as ‘RFC’). Eventually, he was appointed there.

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Admittedly, respondent No.1 submitted a resignation from the State Services vide letter dated 24.01.1978. He requested for his resignation w.e.f. 17.11.1976. Thereafter, he continued in service in the office of RFC until he attained the age of superannuation on 30.11.2001. Not immediately but after many years, he started making representation in 2013 that the services rendered by him under the State should be counted for the purposes of pensionery benefits and the State should undertake the liability for the period of services rendered by him as the government servant, claiming benefits of the order passed by a Division Bench of this Court in the case of State of Rajasthan & Others Versus B.P. Sharma, D.B. Civil Special Appeal (Writ) No.687 of 2004, decided on 01.03.2007 . As the claim was not acceded to, the respondent No.1 filed an appeal before the Tribunal, which was partly allowed vide order dated 13.10.2014. Aggrieved by the said order, State preferred writ petition, which

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[SAW-987/2022]

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(3 of 6)

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was dismissed by the learned Single Judge giving rise to this appeal.

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Learned Additional Advocate General appearing for the State would argue that the learned Single Judge and the Tribunal both failed to appreciate that the case of the respondent No.1 was completely distinguishable from the case of State of Rajasthan & Others Versus B.P. Sharma (Supra) . That was the case of absorption, whereas, present is a case of resignation. He would submit that respondent No.1 having submitted his resignation, the case of the respondent No.1 would fall within mischief of Rule 25 of the Rajasthan Pension Rules, 1996 (hereinafter referred to as ‘the Rules of 1996) and not the one which was referred and relied upon by the Division bench of this Court in the case of State of Rajasthan & Others Versus B.P. Sharma (Supra).

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Further submission is that even if it is assumed that perforce provision contained in Rule 25(2) of the Rules of 1996, in the case of permission, resignation may not entail forfeiture, the respondent No.1 did not claim that he had secured appointment in another undertaking with due permission of the State. Pleadings in this regard were vague.

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Yet another submission is that unless in terms of provision contained in Rule 25(2) of the Rules of 1996, undertaking/information is given, even if, it is assumed that permission was taken, the consequences of forfeiture would not be attracted and the respondent No.1 is having waived his right cannot reclaim the benefit of past services rendered by him. Learned Additional Advocate General would also submit that, though, there is no specific period of limitation prescribed,

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[SAW-987/2022]

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(4 of 6)

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respondent No.1 slept over his alleged claim for more than a decade and approached the Tribunal only in the year 2013, therefore, for this additional reason also, respondent No.1 was not entitled to any relief.

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On the other hand, learned counsel for the respondent No.1 would argue that the orders passed by the Tribunal and the learned Single Judge are based on the fact that the respondent No.1 was a government servant and he had taken up employment in government undertaking and, therefore, in such circumstances, provisions contained in Rule 9 of the Rules of 1996 would be applicable. Learned counsel would also submit that in the appeal filed before the Tribunal, where a specific plea was taken that he had sought appointment under the RFC through proper channel, in the absence of any specific denial made by the appellants that no permission was granted, reliance on provisions contained in Rule 25 of the Rules of 1996 is misplaced in law and fact both.

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We have heard learned counsel for the parties and perused the record and various documents. We have also perused the provisions contained in Rule 9 and Rule 25 of the Rules of 1996.

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Rule 9 of the Rules of 1996, on its plain reading, reveals that it is applicable to a case of absorption. Present is not a case of absorption, but is of resignation. However, Rule 25(2) of the Rules of 1996 provides for saving past services from forfeiture in certain contingencies. Provisions contained in Rule 25 of the Rules of 1996 is reproduced as below:-

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“25. Forfeiture of service on resignation

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(1) Resignation from a service or a post, entails forfeiture of past service.

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(5 of 6)

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[SAW-987/2022]

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(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.

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(3) Interruption in service in a case falling under Sub-Rule(2), due to the two appointments being at different stations, not exceeding the joining time admissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.

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A fair and logical interpretation of the aforesaid rule would be that resignation from government service would result in forfeiture of past service which is clear from the plain language of Rule 25(1) of the Rules of 1996. However, the matter does not end there. Sub-Rule (2) of the Rules of 1996 provides for certain contingencies in which forfeiture will not follow even in a case of resignation. It provides that a resignation shall not entail forfeiture of past services if it has been submitted to take up, with prior permission, another appointment, whether temporary or permanent, under the Government where service qualifies.

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Therefore, in case where the other appointment is taken up with prior permission, the forfeiture of service shall not entail.

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If we look into the pleadings of the parties, we find that in the writ petition, the respondent No.1 has pleaded that he took up the employment and had applied through proper channel. True it is that detailed pleadings in this regard have not been made by the appellants. However, while replying to the averments made in the appeal, nothing stopped the appellants from taking specific stand that the respondent No.1 never sought permission and without such permission, he secured employment in the RFC.

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[SAW-987/2022]

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(6 of 6)

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The submission of the learned Additional Advocate General appears to be quite technical. Strict rules of pleadings cannot be applied in the proceedings before the Tribunal or before this Court. Nothing prevented the State from taking specific stand that the respondent No.1 never sought permission before taking up employment under the RFC, which is State undertaking. Having not taken any such plea and on the face of specific plea taken by the respondent No.1 that he had applied for the appointment to the post under the RFC through proper channel, in our considered opinion, the same would not lead to a conclusion that respondents had not sought any permission before taking up appointment. Therefore, even if, it is held that Rule 9 of the Rules of 1996 will not come to the aid of respondent No.1, it being not a case of absorption, Rule 25(2) of the Rules of 1996 saves the services from being forfeited.

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As the claim of the respondent is with respect to right to pension, which is recurring cause of action, we are not inclined to deny relief of pension on the ground of delay.

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As the conclusion drawn by us is the same as the learned Single Judge, through for different reasons, appeal is, therefore, dismissed.

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(ASHUTOSH KUMAR),J

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(MANINDRA MOHAN SHRIVASTAVA),J

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Sanjay Kumawat-1

State of Rajasthan v. Brijendra Swaroop Saiwal Son of Late Shri Nawal Kishore

Case brief

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State of Rajasthan v. Brijendra Swaroop Saiwal Son of Late Shri Nawal Kishore

Case brief

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