Harpreet Singh Ghai vs State Of Punjab & Ors.

Namit Kumar, J.

The petitioner has filed the instant petition under Article 226 of the Constitution of India, seeking issuance of a writ of certiorari for quashing the impugned order dated 05.10.2023 (Annexure P-9), whereby the petitioner has been denied the pensionary benefits i.e. gratuity and proportionate pension. Further, seeking issuance of a writ of mandamus, directing the respondents to release proportionate pension to the petitioner with interest @ 18% per annum from 01.10.2016 till the actual date of disbursement.

Briefly stated, the facts of the case, as have been pleaded in the petition, are that the petitioner joined as Assistant Town Planner in the Improvement Trust Cadre on 26.12.2001. Subsequently, vide order dated 19.01.2005, he was posted as Assistant Town Planner in the Municipal Corporation Services. After rendering more than 14 years of continuous service, the petitioner submitted an application dated 01.10.2016 (Annexure P-1) to respondent No.3, seeking voluntary retirement with immediate effect, which was received in the office of respondent No.3 vide Diary No.2526/L dated 27.09.2016. The petitioner also deposited one month's salary amounting to Rs. 72,248/-in lieu of the requisite notice period and requested to credit all the service benefits including EPF, pension, leave encashment, gratuity, pending earned leaves pay, pending salary arrears etc. Consequently, respondent No.3, vide its letter dated 25.10.2016 (Annexure P-2), recommended to respondent No.1 to grant voluntary retirement to the petitioner. Thereafter, respondent No.1 forwarded the case of the petitioner to respondent No.2, who, vide order dated 14.12.2017 (Annexure P-3), accepted the voluntary retirement request of the petitioner under Rule 13(ii) of the Punjab Municipal Corporation Service (Recruitment and Conditions of Service) Rules, 1978 (for short ‘the 1978 Rules’) having regard to the recommendations made by respondent No.3. However, no further order qua release of proportionate pension was passed. The petitioner thereafter submitted a representation dated 21.06.2018 followed by reminder dated 12.12.2018 (Annexure P-4) to respondents, with a request to immediately process his case for release of proportionate pension in terms of Rule 6.16 A(3) of the Punjab Civil Services Rules, Volume II, Chapter VI, along with arrears thereof, but no action was taken on the same. After making number of visits to the office of respondent No.2, the petitioner was finally paid the GPF amount of Rs.10,62,615/-through RTGS in his bank account on 16.08.2019, but neither proportionate pension nor gratuity was released to the petitioner. Thereafter, the petitioner again submitted a representation dated 02.11.2019 (Annexure P-6), followed by a legal notice dated 20.12.2021 (Annexure P-7) to the respondents for grant of proportionate pension and gratuity along with arrears w.e.f. November, 2016, but to no avail. Subsequently, the petitioner approached this Court by filing CWP No.15663 of 2022 (Harpreet Singh Ghai Vs. State of Punjab and others), which was disposed of, vide order dated 22.07.2022 (Annexure P-8), with a direction to the competent authority to decide legal notice dated 20.12.2021 by passing a speaking order, within three months from the date of receipt of certified copy of the order and it was further directed that amount, if any, found due to the petitioner be released within two months thereafter. When the respondents had failed to comply with order dated 22.07.2022 (Annexure P-8) within a stipulated period, the petitioner filed a contempt petition before this Court. During the pendency of the contempt petition, a compliance affidavit on behalf of respondent No.3 was filed, wherein it was stated that pursuant to order dated 22.07.2022, passed by this Court, Respondent No.3 has passed speaking order dated 05.10.2023 (Annexure P-9), rejecting the claim of the petitioner on the ground that respondent No.2, vide order dated 14.12.2017, had accepted the request of voluntary retirement of the petitioner as resignation under Rule 13(ii) of the Punjab Municipal Corporation Services (Recruitment & Conditions of Service) Rules, 1978. Hence, the instant petition.

Reply by way of an affidavit of Sh. Harpreet Singh Atwal, Deputy Secretary to the Government of Punjab, Department of the Local Government, Punjab, Chandgiarh, on behalf of respondents No.1 & 2, has been filed, wherein it has been stated as under :-

Separate reply on behalf of respondent No.3 has been filed, wherein also similar stand, as has been taken by respondents No.1 & 2, has been taken.

Learned counsel for the petitioner has submitted that the claim of the petitioner for grant of proportionate pension and gratuity has been rejected, vide order dated 05.10.2023 (Annexure P-9), passed by the Commissioner, Municipal Corporation, Moga on the frivolous and fallacious ground that the request dated 27.09.2016/01.10.2016 made by the petitioner seeking voluntary retirement was accepted by respondent No.2, vide order dated 14.12.2017 (Annexure P-3), as resignation whereas the same was accepted as 'Voluntarily Retirement Resignation' and, therefore, the petitioner is entitled for pro rata pensionary benefits. He has further submitted that the petitioner, vide letter dated 27.09.2016/01.10.2016, had simply requested the respondents to grant him voluntary retirement and since the petitioner has rendered pensionable service, i.e., 14 years, 09 months and 05 days, therefore, he is entitled for proportionate pensionary benefits.

Per contra, learned State counsel assisted by learned counsel for respondent No.3, while reiterating the averments made in the reply filed on behalf of respondents No.1 & 2, has vehemently opposed the relief sought by the petitioner in the instant petition. He has submitted that the petitioner had rendered only 14 years, 09 months and 05 days of service and was about 42 years of age, when he submitted his application for voluntary retirement. Since he had neither completed 20 years of qualifying service nor attained the age of 50 years, therefore, he was ineligible for voluntary retirement under the applicable rules. Accordingly, the competent authority has rightly accepted his request for voluntarily retirement as a resignation, and therefore, the petitioner is not entitled for proportionate pension and gratuity.

I have heard learned counsel for the parties and perused the relevant documents.

Admittedly, the petitioner submitted a request dated 01.10.2016 (Annexure P-1) seeking voluntary retirement with immediate effect to respondent No.3, which was accepted, vide order dated 14.12.2017 under Rule 13(ii) of the 1978 Rules and consequently, payment of Rs.10,62,615/- on account of GPF was made to him.

It is the case of the petitioner that after rendering 14 years, 09 months and 05 days of continuous service, he took voluntary retirement and as such, he is entitled for proportionate pension and gratuity along with arrears as per Rule 6.16A(2) of the Punjab Civil Service Rules, Volume 2, Chapter VI.

Rule 6.16A of the Punjab Civil Services Rules, Volume II, Chapter VI is reproduced as under :-

From the above reproduction of Rule 6.16A(2), it is clear that if a government employee, who retires, with a qualifying service of at least 10 years but less than 25 years, he is not entitled to receive full pension, however, he is entitled for proportionate pension based on the length of his qualifying service but only in case of retirement and not resignation.

The services of the petitioner are governed by the ‘Punjab Municipal Corporation Services (Recruitment and Conditions of Service) Rules, 1978’. Rules 12 and 13 thereof read as under:-

Rule 12 deals with ‘resignation from service’ and provides that if a member of a service wishes to resign from service, he shall give one month’s notice in writing if he is temporary employee and three months’ notice if he is permanent. It further provides that if such member fails to give notice or gives shorter notice, the appointing authority shall be entitled to recover one month’s salary or three months’ salary, as the case may be, with usual allowances or salary and allowances for the period by which the notice falls short of one month or three months, as the case may be, from such member in lieu of notice. Rule 13 deals with ‘retirement from service’ and provides that member of the service shall retire on attaining the age of 58 years. Rule 13 (i) confers upon the appointing authority the right, if it is of the opinion that it is in public interest to do so, to retire a member of the service by giving prior notice in writing on the date on which he completes 25 years of service or attains 50 years of age or on any date thereafter. Rule 13 (ii) deals with the period of notice required for such retirement at the instance of the appointing authority and provides for payment in lieu of the notice period where the requisite notice is not given. Rule 13 (iii) provides that a member of the Service may, after giving at least three months’ previous notice in writing to the appointing authority, retire from service on the date on which he completes 20 years of service or attains 50 years of age or on any date thereafter specified in the notice, subject to the stipulation that a member under suspension shall not retire except with the specific approval in writing of the appointing authority.

A plain reading of the aforesaid provisions leaves no manner of doubt that the Rules make a clear distinction between ‘retirement at the instance of the appointing authority’ and ‘voluntary retirement at the instance of the employee’. Rule 13 (ii), on which reliance appears to have been placed in the order dated 14.12.2017 (Annexure P-3), merely regulates the ‘notice period and the consequence of shortfall therein’ in the case of retirement contemplated under sub rule (i). It does not, by itself, confer any right upon an employee to seek voluntary retirement. The provision enabling an employee to seek voluntarily retirement is contained in sub rule (iii). Thus, even if the order dated 14.12.2017 (Annexure P-3) is taken at its face value and the acceptance of the petitioner's request is treated as having been made under Rule 13(ii), such reference does not advance the case of the petitioner.

According to service jurisprudence, the expressions, “voluntary retirement”, and “resignation” convey different connotations. Voluntary retirement and resignation involve voluntary act on the part of the employee to leave service. Though both involve voluntary act, they operate differently. To understand the issue involved in the present case, the distinction and difference between the expressions ‘voluntary retirement’ and ‘resignation’ needs to be understood.

On perusal of the case file, consideration of the service rules and scrutiny of the material on record, following points and issues have emerged:-

The judgments relied upon by learned counsel for the petitioner in Ganga Bishan Vs. State of Haryana, 1994(3) S.C.T. 154; State of Punjab Vs. Gurkeerat Singh, 2002(3) S.C.T. 623; which was subsequently followed in Mehar Singh Vs. State of Punjab & others, 2003(1) SCT 453 and Haryana State through Collector, District Bhiwani Bhiwani Vs. Madan Pal Ahlawat, 2003 (1) SCT 327 as well as judgment of this Court in Mewa Singh Pattar Vs. State of Haryana & others, 2015(3) S.C.T 239 do not advance his case. While considering the similar controversy arising under the Punjab Civil Services Rules, the Hon’ble Supreme Court in Ghanshyam Dass Relhan Versus State of Haryana and others, 2009 (3) SCT 617; (2009) 14 SCC 506, held that an employee claiming pensionary benefits must satisfy the requirements of the relevant pension rules, including the prescribed qualifying service. In the said case, the petitioner had worked in the office of Deputy Commissioner, Hissar, for 18 years, 2 months and 3 days and had submitted resignation after having been selected in ‘Kurukshetra Central Bank Limited’ after having applied through proper channel. The Apex Court, while considering the provisions of Rules 4.19, 6.16 (2) and 5.32-A of the Punjab Civil Services Rules, Volume-II, Part-II, rejected the claim for pro-rata pension and held as under :-

Following the ratio laid down by the Hon’ble Supreme Court in the aforesaid judgment, a Full Bench of this Court in State of Haryana and others Versus Dr. (Mrs.) Sudha Seth, 2011 (1) PLR 650, while answering a reference, also observed as under:

This Court, on an earlier occasion, in RSA-2965-2003 titled ‘State of Haryana and others Vs. Rattan Dev Sabharwal’ decided on 15.05.2024, while following the law laid down by the Hon’ble Supreme Court in Ghanshyam Dass Relhan case (supra), had also declined to grant pensionary benefits in the absence of the requisite qualifying service.

Thus, the legal position enunciated by the Hon’ble Supreme Court in Ghanshyam Dass Relhan’s case (supra), subsequently followed and reiterated by the Full Bench of this Court in Dr. (Mrs.) Sudha Seth’s case (supra), and consistently applied by this Court in Ram Lal Vs. State of Haryana, 2017(3) SCT 240 and Rattan Dev Sabharwal’s case (supra), holds the field and squarely governs the controversy arising for consideration in the present case. The judgments relied upon by the petitioner, therefore, cannot be read in isolation or pressed into service contrary to the law subsequently declared by the Hon’ble Supreme Court and the Full Bench of this Court. Consequently, the claim of the petitioner for pensionary benefits, irrespective of the manner in which his service came to an end, cannot be sustained in the absence of fulfillment of the statutory conditions, including the requisite qualifying service, prescribed under the applicable pension rules.

In the present case, the petitioner admittedly had rendered only 14 years, 09 months and 05 days of service when he sought voluntary retirement from service. He was approximately 42 years of age at the relevant time. Therefore, he had neither completed the requisite 20 years of service nor attained the age of 50 years. Consequently, he did not satisfy either of the two alternative conditions stipulated in Rule 13 (iii) for exercising the right of voluntary retirement. The use of the expression "or" in Rule 13 (iii) makes it clear that an employee becomes eligible to seek voluntary retirement upon fulfilling either of the two conditions, namely, completion of 20 years of service or attainment of 50 years of age. However, the petitioner has not fulfilled any of the condition. The requirement of three months' previous notice is, therefore, not the only condition governing voluntary retirement. The notice requirement operates only when the employee is otherwise eligible to exercise the right of voluntary retirement under the Rules. Deposit of one month's salary in lieu of notice cannot substitute or dispense with the substantive eligibility requirement of completion of 20 years of service or attainment of 50 years of age. The fact that the petitioner had deposited one month's salary amounting to Rs.72,248/- also does not alter the legal position. The requirement of notice and the consequence of payment in lieu thereof cannot be construed as conferring a substantive right of voluntary retirement upon an employee who does not fulfill the basic eligibility conditions. The acceptance of his request for ‘voluntary retirement’ as resignation by the competent authority, cannot enlarge the scope of the statutory provision or confer upon him a right which was expressly conditioned upon completion of 20 years of service or attainment of 50 years of age. Further, the Department has also erred in dealing, treating and accepting the application of the petitioner under Rule 13(ii) of 1978 Rules, whereas the same ought to have been accepted as 'Resignation' under Rule 12 of 1978 Rules.

Further, the petitioner never questioned the order dated 14.12.2017 (Annexure P-3) and accepted the same without any protest or demur. It is also evident that, pursuant to acceptance of his request for voluntary retirement as resignation, the petitioner was released his GPF amount on 16.08.2019. It is not even the case of the petitioner that his request for voluntary retirement was erroneously accepted as a resignation. The said order has admittedly never been challenged by the petitioner. Rather, the petitioner has confined his claim to the grant of pro-rata pension and gratuity.

So, in nutshell, since the petitioner did not satisfy the eligibility conditions for ‘voluntary retirement’ prescribed under Rule 13(iii) of the 1978 Rules, the acceptance of his request for voluntary retirement from service could not acquire the legal character of voluntary retirement merely because the administrative order dated 14.12.2017 used such expression. The legal character of the acceptance of request has to be determined with reference to the statutory rules and not merely on the basis of the nomenclature employed in an administrative order.

Be that as it may, once the petitioner was having only 14 years, 9 months and 5 days of service at the time when he submitted his application to leave the service with immediate effect and just because he has mentioned the words 'voluntary retirement' in his application, does not entitle him to be benefited either under Rule 6.16 (2) of the Punjab Civil Services Rules, Volume-II, Part II, or to be covered under Rule 13 of 1978 Rules relating to Voluntary Retirement, entitling for retiral benefits with regard to pension on pro rata basis and/or gratuity as well, since the benefit of Rule 6.16 (2) can only be availed by a person, who retires on superannuation or invalid and compassionate grounds. Thus, this Court is unable to accept the submission that the petitioner's application should nevertheless be construed as one for voluntary retirement merely because he used those words in his letter. The law is well settled that the substance of a document and its legal consequences must prevail over its nomenclature. It is equally well settled that pension becomes payable only upon fulfilment of the statutory conditions prescribed by the applicable rules. Courts cannot direct payment of pension dehors the Rules merely because an employee has rendered a particular length of service. This Court also cannot lose sight of the fact that if the petitioner's contention is accepted, every employee who has completed ten years of service, but is otherwise ineligible for voluntary retirement would merely describe his resignation as "voluntary retirement" and thereafter claim pro-rata pensionary benefits. The qualifying conditions of twenty years' service or fifty years' age would become meaningless. The law is well settled that the substance of a document and its legal consequences must prevail over its nomenclature. A person cannot, by merely assigning a particular label to his request, create statutory rights which the governing Rules expressly deny and, therefore, the Court cannot permit statutory requirements to be circumvented by adopting terminology inconsistent with the governing Rules.

In view of the aforesaid discussion, this Court is of the considered opinion that acceptance of request of the petitioner as regards ‘voluntary retirement’, referred to in the order dated 14.12.2017, does not confer any independent right of voluntary retirement upon the petitioner. The impugned order dated 05.10.2023 (Annexure P-9), therefore, cannot be said to suffer from any illegality or perversity warranting interference by this Court in exercise of its writ jurisdiction. The competent authority has rightly declined to grant pensionary benefits to the petitioner, as he had not fulfilled the statutory conditions for voluntary retirement.

For the foregoing reasons, the present petition is found to be devoid of merit and is, accordingly, dismissed.

Before parting with the judgment, this Court deems it appropriate to make certain observations for consideration at the administrative level. The controversy in the present case appears to have arisen essentially on account of the manner in which the petitioner's request seeking "voluntary retirement" was dealt with by the concerned authorities. The petitioner, admittedly, did not fulfill the statutory conditions prescribed for voluntary retirement under the applicable service rules, yet his request came to be processed and eventually accepted though as resignation by referring to a provision which did not confer upon him any such right. The subsequent dispute regarding his entitlement to pensionary benefits has, therefore, culminated in the present litigation.

It is difficult to overlook that the application submitted by the petitioner seeking voluntary retirement is dated 01.10.2016, whereas the same is stated to have been received in the office of respondent No.3 on 27.09.2016 vide Diary No.2526/L. This apparent discrepancy in the dates of the application and its receipt, coupled with the fact that the request for voluntary retirement was processed and accepted though as resignation, without the petitioner's eligibility under the applicable rules being duly examined, calls for appropriate administrative scrutiny.

The present case also highlights the importance of maintaining a clear distinction between "voluntary retirement" and "resignation", as the two expressions have distinct legal consequences under the service and pension rules. A request seeking voluntary retirement cannot be casually processed or accepted without first examining whether the employee fulfills the statutory conditions prescribed for such retirement. Likewise, an application for resignation cannot be treated as one for voluntary retirement merely on account of the nomenclature used by the employee.

It is, therefore, considered appropriate to place the following observations and suggestions before the State Government for consideration at the administrative level, with a view to preventing recurrence of such instances and ensuring strict adherence to the applicable statutory rules:

It is clarified that the aforesaid observations are intended only as administrative suggestions for strengthening the mechanism governing cases of voluntary retirement and resignation and for ensuring strict compliance with the statutory service rules.

The Registry is directed to forward a copy of this judgment to the Chief Secretary to Government of Punjab; the Chief Secretary to Government of Haryana; and the Chief Secretary, UT, Chandigarh for consideration and for taking such appropriate administrative action as may be deemed necessary.