- (1.) THIS is an old writ petition filed way back in the year 1997 by petitioner Sohan Lal Soni with the prayer that rule 208 of the Rajasthan Service Rules, 1951 (in short the Rules of 1951) and rule 25 of the Rajasthan Civil Services (Pension) Rules, 1996 (in short the Rules of 1996) in so far as these rules provide for forfeiture of past services on resignation be declared as illegal and be struck down as being illegal and unconstitutional and further that rule 244(1) of the Rules of 19951 and rule 50(1) of the Rules of 1996 in so far as they provide for minimum qualifying service and age to become eligible for pension be also struck down as being illegal and unconstitutional. A consequential relief has also been prayed for in that the respondents be directed to grant pension to the petitioner proportionate to the period of service rendered by him by treating his resignation as retirement form service.
(2.) FACTUAL matrix of the case is that the petitioner was appointed as Assistant Teacher in the Education Department of the respondents on 28.1.1955. He was later promoted to the post of Teacher Gr.II vide order dated 7.9.1964. In course of time however he was absorbed on the post of LDC vide order dated 31.1.1966. While so serving, the petitioner resigned from service on 5.6.1968. His resignation was accepted and consequentially he was relieved from service on 9.8.1968. The petitioner had thus completed 12 years and 8 months in the service of the respondents. According to rule 208 of the Rules of 1951 which is in para materia to rule 25 of the Rules of 1996, upon a government servant resigning from service, past period of service rendered by him becomes liable to be forfeited and therefore the petitioner was not held entitled to any kind of pension. The petitioner submitted a representation to the Principal, District Education & Training Institute, Jodhpur on 8.7.1997 for grant of pensionary benefits. His representation was forwarded to Deputy Director (Male) Education Department, Jodhpur on 3.2.1997. The petitioner then submitted another representation on 24.2.1997 and when nothing transpired, he ultimately served a legal notice for demand of justice on 20.3.1999. It is against the backdrop of these facts that the present writ petition has been filed with the prayers extracted above. The respondents have contested the petition and have filed a detailed reply thereto. It has been contended that in view of the provisions contained in rule 208 of the Rules of 1951, the petitioner was not entitled to claim pension as whole of his past services stood forfeited upon acceptance of his resignation. It has been submitted that the resignation cannot be treated at par with voluntary retirement and there is great deal of difference between the two. While voluntary retirement is permissible under rule 244(1) of the Rules of 1951, provisions for resignation are contained in rule 204 and its consequences are contained in rule 208 supra. The claim for grant of pension set up by the petitioner is therefore untenable in law as being wholly misconceived and contrary to the provisions contained in the rules. It has been submitted that rule 208 of the Rules of 1951 and for that matter, rule 25 of the Rules of 1996 are both intra vires of provisions of Article 14 and 16 of the Constitution of India. The provision as to forfeiture of past service in the event of resignation is a valid piece of legislation inasmuch as the underlying idea behind it is that if the Government imparts training to the government servant and makes him rise to the occasion in anticipation of the fact that he shall be serving the Government and yet if he on his own decides to resign, why should he be held entitled to benefit of pension. The period of service rendered by him in the past has therefore rightly been held liable to forfeiture. It has been denied that rule 208 of Rule of 1951 and rule 25 of the Rules of 1996 are in any manner arbitrary and discriminatory. Forfeiture of past service of a government servant who on his own volition resigns cannot be equated with a penalty. Qualifying service for voluntary retirement at the time when the petitioner resigned from service was 25 years with the condition that the Government servant should have attained the age of 50 years, whereas, the petitioner, when he resigned had barely served for 12 years and had even not attained the age of 50 years. There can be thus no comparison between these two methods of relinquishment of the service. The case of those who resigned and are denied pension consequent upon forfeiture of their past service cannot be grouped with those who are dismissed or removed by way of penalty and then denied pension. Forfeiture of past service and denial of pension in the case of the former cannot be therefore considered to have occasioned as a result of penalty and for the same reason therefore also cannot be considered as penalty by itself. It has therefore been prayed that writ petition be dismissed. I have heard Shri M.S. Singhvi counsel for the petitioner and Shri N.M. Lodha, the learned Additional Advocate General at length and perused the record. Shri M.S. Singhvi, learned counsel for the petitioner argued that resignation can be in no way treated differently than voluntary retirement because it also has the element of willingness and is based on the own decision of the employee to relinquish the service. The two category of cases have to dealt with alike being similar in nature. According to Shri Singhvi, even if the petitioner had not completed the qualifying period of service so as to entitle him to seek voluntary retirement, his case would still be regulated by rule 256 of the RSR and he would be entitled to receive the amount of pension proportionate to the period of service actually rendered by him. Rule 208 of the Rules of 1951 and for that matter Rule 25 of the Rules of 1996 in so far as they provide for forfeiture of past service and eventual denial of pension are ultra vires of Article 14 and 16 of the Constitution of India. These rules seeks to treat the similarly circumstanced government servants in a dissimilar manner and therefore they are liable to be declared illegal and unconstitutional. Shri Singhvi has placed reliance on the judgments of this Court in Lochan Vishal vs. State of Rajasthan reported in 1997 WLR 52 and also in M/s. J.K. Cotton Spg. Wvg. Mills Company Ltd., Kanpur VS. State of U.P. & Ors reported in AIR 1990 SC 1808. According to Shri Singhvi the forfeiture of past service has penal consequence therefore in common parlance, amount to penalty resulting into break in service. Such a penalty cannot be awarded to a government servant except in the case of a proven misconduct. To support his this contention, Shri Singhvi relied upon the judgment in Shiv Shanker & Anr vs. Union of India & Ors reported (1985) 2 SCC 30 and in Dayal Saran Sanan vs. Union of India & Ors reported (1980) 3 SCC 25. Shri Singhvi further argued that the respondents cannot raise objection with regard to delay in filing of the writ petition because the claim of pension give rise to a continuing cause of action and delay cannot come in the way of claiming pension. In order to buttress his argument, Shri Singhvi relied upon the judgment of this Court in Smt. Shanti Devi vs. State of Rajasthan reported 2003(1) RLR 303 = (RLW 2003(2) Raj. 1178) and in Nagar Nigam, Jaipur & Anr. vs. Ramjilal & Ors reported RLR 2004(3) 1.
(3.) SHRI N.M. Lodha, learned Additional Advocate General appearing for the respondents argued that while the petitioner resigned form service in the year 1968 he has filed the writ petition after 25 years thereafter as late as in the year 1997 therefore the writ petition is liable to be dismissed. In support of his argument, he has relied upon the judgment of the Hon'ble Supreme Court in Aflatoon & Ors vs. Lt. Governor of Delhi & Ors reported in AIR 1974 SC 2077 and in Vishwas Nagar Evacuee Plot Purchaser Association & Anr. vs. Under Secretary, Delhi Admn. & Ors reported in AIR 1990 SC 849. He argued that resignation cannot be treated at par with the voluntary retirement. Once a government servant resigns his past service is liable to be forfeited by operation of law as contained in rule 208 of the Rules of 1951. Even otherwise, the petitioner cannot be held entitled to pension as he did not complete the qualifying service for voluntary retirement. When the petitioner retired from service in the year 1968, period for qualifying service was 25 years with completion of 50 years of age. The petitioner had neither completed 25 years of service nor had attained 50 years of age. After acceptance of his resignation, he for the first time made representation in the year 1997, which representation itself was enormously delayed. Challenge to Rule 25 of the Rules of 1996 is wholly misconceived because these rules would apply to only such persons who retired from service after 1.10.1996. Moreover, the petitioner has taken steps to challenge rule 208 of the Rules of 1951 at a time when those rules already stood repealed by Rules of 1996 and validity of a repealed rule cannot be subject matter of challenge. SHRI Lodha argued that even otherwise, both the rules i.e. rule 208 of the Rules of 1951 and rule 25 of the Rules of 1996 are valid piece of legislation. There is always a presumption in favour of constitutionality of a law till it is declared ultra vires. SHRI Lodha in this connection relied upon the judgments of the Hon'ble Supreme Court in Bhuri Nath & Ors vs. State of J&K & Ors (1997)2 SCC 745 and in Union of India vs. Elphinstone Spinning and Weaving Co. Ltd. & Ors AIR 2001 SC 724. Citing the judgment of the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education & Ors vs. Paritosh Bhupesh Kurmarsheth etc etc AIR 1984 SC 1543 and in State of Bihar & Ors etc etc vs. Bihar Distillery Ltd., etc etc AIR 1997 SC 1511, SHRI Lodha argued that a lawfully enacted provision of law can be declared unconstitutional only when it is shown to have been enacted without legislative competence or against parental Act or in violation of any fundamental right. Such an unconstitutionality must be plainly pleaded and clearly established. In examining constitutional validity of legislation, the courts are required to make an endevour to sustain the validity of an Act to the extent possible. Shri Lodha further argued that the acceptance of resignation of a government servant culminates into forfeiture of his past service. There is always qualifying period of service in the case of voluntary retirement but there is no such requirement in the matter of resignation. Those who relinquish service by way of resignation and those who voluntarily retire form two distinct and separate classes which qualify the requirement of reasonable classification. No discrimination is therefore meted out to those who resign from service if they are not granted the pensionary benefits. This is so because resignation from service brings about a complete cessation of master and servant relationship whereas voluntarily retirement keeps it alive for the purpose of pension and other retiral benefits. Shri Lodha in order to support his contention relied upon the Hon'ble Supreme Court judgment in UCO Bank & Ors vs. Sanwar Mal (2004) 4 SCC 412, Reserve Bank of India & Anr. vs. Cecil Dennis Solomon & Anr. (2004) 9 SCC 461, Union of India & Ors. vs. Braj Nandan Singh (2005) 8 SCC 325 and M/s. J.K. Cotton Spg. & Wvg. Mills Company Ltd., Kanpur vs. State of U.P. & Ors. (supra). Lastly, Shri Lodha relied upon the judgment of the Hon'ble Supreme Court in Anant Mills Co. Ltd. etc etc vs. State of Gujarat AIR 1975 SC 1234 for the proposition that pension is not fundamental right but is a statutory right and therefore can be regulated by condition of qualifying service. Shri Lodha, Additional Advocate General therefore prayed that the present writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by both the learned counsel for the parties and perused the material on record. ;