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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION

CIVIL APPEAL No. 1892   OF 2015 (ARISING OUT OF SLP(C) No. 21865/2014)

State of Madhya Pradesh & Others     Appellant(s)

VERSUS

Hitkishore Goswami            Respondent(s)                   

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the State of M.P. against  

the  judgment/order  dated  09.10.2013  passed  by  the  

High Court of M.P. in W.A. No.478 of 2013 which arise out  

of judgment/order dated 05.07.2013 passed by the Writ  

Court in W.P. No.1475/2009 (S).

3. By impugned judgment, the Division Bench of  

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the High Court dismissed the appeal filed by the State  

(appellant herein) and upheld the order of the Writ Court  

(learned Single Judge)  which allowed the respondent's  

writ  petition  by  issuing  directions  in  the  nature  of  

mandamus against  the  appellant  (State)  in  relation  to  

respondent's pension case.

4. The question, which arises for consideration in  

this appeal is whether the Courts below were justified in  

allowing  the  respondent's  writ  petition  and  in  

consequence  justified in issuing directions in the nature  

of writ of mandamus in relation to respondent's pension  

case.  

5. Facts  of  the  case  lie  in  a  narrow  compass.  

They, however, need mention, which are taken from the  

list of dates and the pleadings of the parties infra.

6. The  respondent  was  appointed  as  Lecturer  

(Botany)  on  02.07.1963  in  the  School  Education  

Department  of  the  State.   He  was  posted  in  the  

Government Higher Secondary School at Kannod, District  

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Dewas  and  later  transferred  to  another  Government  

Higher Secondary School at Agar (Malba).  

7. In the year 1965, the respondent applied for  

the post of Lecturer in the Government Degree College,  

Narsinghgarh pursuant to the advertisement issued by  

the M.P. Public Service Commission (for short MPSC). The  

respondent was selected for the said post. He, therefore,  

tendered  his  resignation  in  December,  1965  from the  

post of lecturer  to enable him to join the new service.  

The respondent’s resignation was accepted.  

8. The  respondent,  accordingly,  on  03.01.1966  

joined on the post of Lecturer in the Government Degree  

College,  Narsinghgarh  and  worked  till  30.04.1976.  He  

was then sent on deputation as Reader on selection at  

Barkatulla University, Bhopal. The respondent continued  

to  work  there  when  his  services  were  absorbed  

permanently on 29.08.1979 with effect from 01.05.1978.  

The respondent attained the age of superannuation  and,  

accordingly, retired from the services on 31.5.2004.  

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9. The respondent then applied for assessing his  

pension and payment of gratuity (annexure-P-1) to the  

concerned authorities. In Column No. 7 of the Form, he  

mentioned the date of beginning of his service as  “3rd  

January 1966”.  However, later, the respondent joined  

an  issue  with  the  State  that  while  calculating  his  

pensionery  benefits,  the  past  period  of  his  services,  

which  he  rendered  as  lecturer  in  the   government  

schools from “02.07.1963 to 02.01.1966”, should also  

be counted. The State did not accept the prayer made by  

the respondent.  

10. This gave rise to filing of the writ petition by  

the respondent against the State for determination of the  

question as to whether he was entitled to take benefit of  

his past services from 02.07.1963 to 02.01.1966 so as  

to include the said period in his total length of services  

for counting  qualifying services to fix his pension and  

other retiral benefits payable to him.  

11. The  State  contested  the  respondent's  writ  

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petition  on  two  grounds.  In  the  first  place  it  was  

contended  that  the  claim  made  by  the  respondent  is  

inordinately  delayed  and  hence  the  writ  petition  was  

liable to be dismissed on the ground of delay and laches.  

The second ground was that since the respondent had  

voluntarily resigned from earlier services to enable him  

to join the new post of Lectureship in the Government  

Degree  College  and  his  resignation  having  been  

accepted by the State, he was not entitled to claim any  

benefit  of   earlier  services  for  counting his qualifying  

services   for  fixing  his  pension  and payment  of  other  

retiral benefits.    

12. The Writ Court, by order dated 05.07.2013, did  

not  accept the grounds taken by the State and,  while  

allowing  the  respondent's  writ  petition,  issued  the  

following directions against the State:

“(i) The  respondents  shall  count  the  services rendered by the petitioner from  July 1963 to 3.1.1966 for the purpose of  qualifying services for counting pension,  gratuity and other retrial dues.

(ii) While  refixing  and  revising  the  pension  and  retrial  dues  the  

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respondents  shall  consider  whether  petitioner is entitled for any benefit as  per  the  circulars  issued  by  the  State  Government,  Annexure  P-12  (cumulative).

(iii) The  aforesaid  exercise  be  positively completed within 60 days and  revised  pension  and  consequential  benefits arising there to be paid to the  petitioner within the aforesaid time.  If it  is not done within the aforesaid period,  it will carry 6% interest till  the date of  actual payment.”

13. The  State  felt  aggrieved  filed  intra  court  

appeal.  By  impugned  order,  the  Division  Bench  

dismissed the appeal and upheld the directions issued  

by the Writ Court. It is against this order; the State felt  

aggrieved and has filed this  appeal, by special leave.

14. Learned  Counsel  for  the  appellant  (State)  

while  assailing  the  legality  and  correctness  of  the  

impugned order reiterated the same grounds as were  

urged  before  the  courts  below  and  made  two-fold  

submissions. In the first place, he contended that the  

courts  below  erred  in  entertaining  and  eventually  

allowing the respondent's  writ  petition by issuing the  

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impugned directions.  It  was his submission that  once  

the  respondent  voluntarily  tendered  his  resignation  

from  his  earlier  service,  which  on  its  acceptance,  

enabled him to join the new service as Lecturer in the  

Government Degree College, the period spent in  past  

services  was  not  available  for  being  counted  nor  it  

could be a part of the qualifying service while fixing his  

pension.  In  other  words,  the  submission  was  that  

acceptance  of  respondent's  resignation  by  the  State  

(competent  authority)  resulted  in  severance  of  his  

relationship  with  the  State  so  far  as  that  particular  

service/employment was concerned because it brought  

to  an  end  the  said  services/employment  for  all  

purposes.  It was for this reason the learned counsel for  

the State   urged that the period spent in such services  

was not available to the respondent while counting the  

qualifying service for fixing his pension. This submission  

urged by the learned counsel was not decided by the  

High  Court  in  its  proper  perspective.  His  second  

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submission  was  that  when  the  respondent  himself  

mentioned in his Pension Form (Annexure-P-1) that his  

date  of  beginning  in  the  service  for  assessing  the  

pension was "03.01.1966", then in such circumstances  

he had no right to turn around and request the State to  

count his services rendered  prior to 03.01.1966.

15. In contra, learned counsel for the respondent  

supported the impugned order and contended that no  

case is made out to interfere with the impugned order  

and hence, the same should be upheld by dismissing  

the appeal.  

16. Having  heard  the  learned  counsel  for  the  

parties and on perusal of the record of the case, we find  

force in the submissions of the learned counsel for the  

State.

17. In  our  considered  opinion,  the  respondent  

was  not  entitled  to  claim  the  benefit  of  his   past  

services  which  he  rendered  from  “02.07.1963  to  

02.01.1966”  as  Lecturer  in  the Government  Schools  

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while  determining his  qualifying service for  fixing his  

pension etc.   

18. It was for the reason that respondent having  

voluntarily  tendered  his  resignation  from  the  said  

service without there being any condition much less a  

condition to enable him to claim any kind of its benefit  

in the event of his joining other services with the State,  

no benefit  of such past services was available to the  

respondent.

19. In  our  considered  opinion,  the  effect  of  

tendering the resignation by the respondent - may be  

for any reason was that the relationship between the  

parties  insofar  as  that  particular  employment  was  

concerned  got  severed  for  all  purposes  leaving  no  

benefit  to  remain  in  respondent's  favour.  It  had  no  

connection with respondent’s subsequent employment  

which began from “03.01.1966”.

20. Indeed,  in  order  to  claim  continuity  in  the  

service  for  claiming  any  benefit  arising  therefrom,  it  

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was necessary for the respondent to have shown any  

specific rule or condition recognizing such right in his  

favour. The respondent, however, was not able to show  

any such rule or/and condition in his favour.

21. It is a trite law that a right to claim pension  is  

governed by the statue.  An employee has, therefore,  

no  right  to  claim  any  benefit  in  relation  to  pension  

dehores the statute.

22. Learned  counsel  for  the  respondent,  

however,  vehemently urged that  keeping in  view the  

respondent’s  unblemished  service  record  with  the  

State, it can safely be taken that there was no break in  

the  service,  which  entitled  the  respondent  to  claim  

benefits  flowing  from  his  past  and  present  services  

including its continuity qua State.

23. We  find  no  merit  in  this  submission  in  the  

light  of  our  finding  recorded  in  the  preceding  

paragraph.

24. In the light of foregoing discussion, we are of  

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the considered opinion that the courts below erred in  

directing the State to give benefit  to the respondent of  

his services which he had rendered from “02.07.1963  

to 02.01.1966” for fixing his pension without properly  

examining the effect of his tendering resignation on the  

issue raised in the writ petition.     

25.  In our opinion, the respondent was, therefore,  

entitled to get the benefit of his services rendered  from  

“03.01.1966” onwards  as  mentioned  by  him in  the  

Form  (Annexure-  P-1)   for  assessing  his  pension,  

gratuity  and other retiral benefits etc.  

26. Since we have  dismissed the respondent’s  

writ petition on merits hence, it is not necessary to deal  

with another  question in relation to  delay and laches  

in filing the writ petition raised by the appellant (State)  

which was decided by the courts below in respondent’s  

favour.   In  any event,  we are inclined to  uphold  the  

finding of courts below on this issue and, accordingly,  

hold that writ petition was not liable for dismissal  on  

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the  ground  of  delay  and  laches  on  the  part  of  

respondent.

27. In view of foregoing discussion, we allow the  

appeal,  set aside the impugned judgment and orders  

and in consequence dismiss the writ  petition filed by  

the respondent.  

28. We direct the appellant (State) to  finalize the  

claim of the respondent for fixing his pension and other  

retiral benefits in the light of what is held above, as per  

rules, and pay the same to the respondent within three  

months from the date of this judgment.  No costs.

                   …………….….……...................................J.       [FAKKIR MOHAMED IBRAHIM KALIFULLA]

…..….. ………………..................................J.

     [ABHAY MANOHAR SAPRE]

New Delhi; February 16, 2015.

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