Sri Hrusnikesh Misra vs The State of Orissa and Another

P.K. Mohanti, J.—This is a petition under Article 226 of the Constitution of India for issue of a writ of certiorari quashing the order in Annexure-5 whereby the Petitioner was made to retire from service on completion of 55 years of age under Rule 71(a) of the Orissa Service Code with effect from 15-8-1973.

The material facts are these:

The Petitioner was born on 15.8.1918. He was appointed as a Probationer in the office of the Superintendent of Police, B.N. Rail way, Kharagpur on 23-3-1939 On 18-1-1940 he was appointed as a temporary clerk and on 1-6-1940 as a clerk on probation against a permanent vacancy. On 23-2-1944 he was appointed as a Lower Division Assistant in the office of the Inspector-General of Police and on 17-1-1947 he was promoted to the rank of an Upper Division Assistant, Grade B. He tendered resignation which was duly accepted on 22-8-1947. On 22-11-1948 he was appointed afresh as a clerk in the Enforcement Section of the C.I.D. by the D.I.G. of Police. On 17-1-1949 he was temporarily appointed as an Assistant in the Manual Section of the office of the D.I.G. on Special Duty. On 1-11-1949 the interruption in his service from 22-3-1947 to 22-11-1948 was condoned by the Inspector General of Police under provisions of Article 422 of the Civil Service Regulations. 1 hereafter the Petitioner was promoted as Grade I Assistant in the office of the Inspector -General of Police. On 11-8-1973 he was ordered to be superannuated with effect from 15-8-1973 as per Annexure 5.

The Petitioner''s contention is that as he entered service prior to 1.4.1939 and the break in service from 2-3-1947 to 22-11-1948 was condoned by the competent authority under Article 422 of the Civil Service Regulations he is entitled to the benefit of Rule 75(b) of the Bihar and Orissa Service Code corresponding to Rule 71(b) of the Orissa Service Code. The opposite parties have, on the otherhand, contended that the break in service was condoned for the limited purposes of leave, pension and increment and for no other purpose. Therefore, the main question for determination is: What is the effect of condonation of the break in service?

Article 422 of the Civil Service Regulations as adapted by the State of Orissa runs as follows:

Upon such conditions as it may think fit in each case to impose, the authority competent to fill the appointment held by an officer at the time condonation is applied for were he to vacate that appointment, may condone all interruptions in his service.

NOTE 3 - The authority competent to sanction the pension of an officer can condone under this Article an interruption between an officer''s non-qualifying service in a pensionable establishment and his subsequent qualifying service in order to make the former service qualify for pension.

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Article 422 occurs in Part IV of the Civil Service Regulations under the heading "Ordinary Pensions" Part IV consists of Chapters XV to XXI. This Article is found in Chapter XVII relating to "Rules for reckoning service." So, evidently, Article 422 relates to condonation of interruptions in service only for the purpose of pension.

The Civil Service Regulations is applicable only to the pension cases of the civil servants under the rule making ''control'' of the State of Orissa. It has nothing to do with the age of superannuation which relates to conditions of service and is dealt by the Orissa Service Code. This view finds support from the following:

In the Foreword dated 16th July, 1959 of the then Secretary to Government, Finance Department in the compilation of "Orissa Amendments and Adaptations of Civil Service Regulations, 1966 Edition" it is mentioned as follows:

No separate pension rules have been formulated by the State Government to govern the pension Cases of the Government servants under their rulemaking control. The pension cases of the State Government employees are being regulated at present according to the rules in the Civil Service Regulations as amended by the State Government from time to time.

In the preamble of the New Pension Rules, 1961 it is stated as follows:

The State Government have had under consideration the question of liberalisation of the retirement benefits admissible to Government servants in pensionable service under them. The Governor of Orissa is accordingly pleased to direct that the existing pension provisions contained in the Civil Service Regulations as adapted by the State Government in their application to persons appointed to services and posts in connection with the affairs of the State, and in the Orissa Subordinate (Inferior) Services (Gratuity, Pension and Retirement) Rules, 1940, shall be modified to the extent indicated below.

Para 2 of the Government of Orissa, Finance Department letter No. 1078 F/Pen. 62-53 dated the 28th April, 1955 shows that the New Pension Rules do not purport to regulate the age of superannuation of a Government servant.

Doubtless, when there is a break in service of a civil servants and the rules authorise the Government to condone the break upon such conditions as it may think, the condonation of break of service may be ordered by the Government so as to give'' him continuity of service for all purposes including the age of superannuation. But that has not been done in this case. The order of condonation made by the Inspector-General of Police is in the following terms:

The Inspector-General of Police has been pleased to condone under Article 422 of the Civil Service Regulations the interruption in service from 22-3.1947 to 22-11-1948 of Shri Hrushikesh Misra who was discharged on resignation from 22.8.1947 and was reinstated to his former post of Grade ''B'' assistant from 23.11.1948. He is allowed to count his past service towards leave, pension and increment.

(Vide Annexure 3).

It will thus be seen that the condonation was allowed for the limited purposes of leave, pension and increment and for no their purpose. Had it been the intention to condone the break in service for the purpose of superannuation the period of break in service would have been treated as on leave of the kind due to the Petitioner in order to maintain the continuity of service. We accordingly hold that although the Government had the power to condone the break in service for all purposes, in the instant case condonation has been allowed for the purposes of leave, pension and increment only.

It was strenuously contended on behalf of the Petitioner that pensionary benefits being integrally connected with retirement, the condonation has the effect of maintaining continuity of service for the purpose of retirement. We are unable to accede to this contention. As indicated earlier, retirement from service is governed by the Orissa Service Code and the question of allowing pensionary benefits under the provisions of the Civil Service Regulations or the New Pension Rules, 1951 arise only after retirement. Mr. Dora, the learned Counsel for the Petitioner relied on a decision of this Court reported in Jitendra Prasad Mohanty v. State of Orissa ILR 1974 Cutt 1274, in support of his contention that once the break in service has been condoned the Petitioner is to be deemed to be in continuous service since the date of his original appointment. The facts of that case are dearly distinguishable. The interruption of service in that case was due to reduction ''of the pensionable establishment and the person concerned was not responsible for such interruption. In consideration of these facts, the State Government had specifically ordered that condonation of the interruption would enable the Petitioner to continue in service till 60 years. In view of the specific order of the State Government, their Lordships held that the Petitioner should be deemed to be in continuous service from the date of his original appointment till the date of his retirement and that he was entitled to the benefit of Rule 75(b) of the Bihar and Orissa Service Code. In the present case there is no such specific order of the State Government in favour of the Petitioner. It was clearly indicated in the order of the Inspector-General of Police in Annexure 3 that condonation was for the limited purpose of lease pension and increment. The Petitioner is, therefore, not entitled to the benefits of Rule 75(b) of the Bihar and Orissa Service Code.

There is no merit in this writ petition and it is accordingly dismissed but, in the circumstances, without any order as to costs.

G.K. Misra, C.J.

I agree.