Jagadish Chandra Roy Vs. State of Tripura and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/894303
SubjectService
CourtGuwahati High Court
Decided OnDec-21-2000
Case NumberCivil Rule No. 96 of 1994
JudgeB.B. Deb, J.
ActsConstitution of India - Article 226;; Union Territories Provident Fund-cum-Insurance-cum-Pension Rules, 1965
AppellantJagadish Chandra Roy
RespondentState of Tripura and ors.
Appellant AdvocateMr. A.K. Bhowmik, ;Mr. I. Chakraborty and ;T.K. Deb, Advs.
Respondent AdvocateMr. U.B. Saha and ;Mr. R.B. Sinha, Advs.
DispositionPetition dismissed
Excerpt:
- 1. by this petition under article 226 of the constitution of india, the petitioner jagadish ch. roy (since deceased) challenged the order dated 12.1.1994 (annexure-2) passed by the respondent no. 2 rejecting the prayer of the petitioner seeking pensionary benefits and also sought for a direction commanding the respondents to allow the petitioner pensionary benefits.2. the petitioner entered in service as assistant teacher in pragati vidya bhavan, a govt. aided private school on 23.3.1974 while the petitioner's date of birth was as on 1.1.1920. the petitioner's service at the relevant time was governed by the union territories government aided school teachers contributory provident fund-cum-insurance-cum-pension rules, 1965 (hereinafter called'triple benefit scheme'). under the aforesaid scheme, a teacher of a govt. aided school would go on retirement on completion of 60 years and the authority may in exceptional cases grant extension of service, but not beyond the age of 65 years subject to physical fitness of the incumbent concerned. that provision of triple benefit scheme issued vide memorandum dated 19.11.1973 has been amended vide memorandum dated 29.9.1977 whereby by the powerof the authority to extend the service of such teacher in exceptional circumstances was made upto the age of 62 years subject to physical fitness and mental alertness of the teacher. so from 29.9.1977 the maximum extension of service was made permissible not exceeding 62 years. the petitioner was to go on superannuation on completion of his 60 years of age 31.12.1979, but on petition the service of the petitioner was extended by two years upto 31.12.1981, that is he was allowed by the authority to continue in service upto the age of 62 years. the petitioner applied for further extension of three years' service to the authority, but the authority rejected his petition vide order dated 17.12.1981 and thus being aggrieved, the petitioner filed a title suit bearing no. 384 of 1981 in the court of learned munsiff, sadar, agartala along with a temporary injunction petition bearing no. misc. case 474 of 1981 seeking a temporary injunction to be granted restraining the respondents from retiring the petitioner from service till disposal of the suit. ex parte temporary injunction was granted in favour of the petitioner and subsequently on hearing, the said temporary injunction order was made absolute on 29.11.1982 and in this way the petitioner continued in service till he attained the age of 65 years upto 13.12.1984. the said suit was dismissed by the judgment and decree dated 10.5.1989 (annexure -1 of the writ petition). the learned trial court by the aforesaid judgment and decree held that the plain tiff-petitioner continued in service beyond 31.12.1981 by virtue of the ex parte temporary injunction issued in the aforesaid misc. case no. 474 of 1981, which was subsequently made absolute, but the petitioner failed to establish his right to be retained in service after the completion of his 62 years of age and thus the aforesaid suit was dismissed. the learned counsel for the plaintiff-petitioner in that case prayed for counting the extended period of three years beyond 62 years being a period for qualifying service so as the petitioner would get the benefit under triple benefit scheme. under the aforesaid scheme, the petitioner was entitled to get pension only in case he could complete minimum ten years of service. though the learned govt. pleader allowed concession having left the matter with the court to treat the said period of three years as qualifying service, but the learned court having disagreed with the learned govt. pleader was declined to pass order directing the respondents to allow the pensionary benefits to the plaintiff-petitioner as according to the learned trial court, it would be beyond its jurisdiction. however, the learned trial court directed the defendant-respondents not to recover the play and allowances paid to the plaintiff-petitioner for rendering his service beyond 62 years as the petitioner having availed of thebenfit of temporary injunction order served for the aforesaid period of three years. the learned trial court also left the matter with the authority to consider if any pensionary benefit could be granted to the plaintiff-petitioner under the rules in force. thereafter, the plaintiff-petitioner made representation which stood rejected vide order dated 17.1.1994 by the director of school education, tripura as already stated.3. the admitted position of the case is that the petitioner just completed 7 years 9 months 8 days of service till he attained the age 62 years on 31.12.1981. though in normal course the petitioner had to go on retirement two years earlier that is on 31.12.1979, but as two years service was extending by the authority as permissible under the triple benefit scheme, he could complete 7 years 9 months 8 days of service.4. mr. a. k. bhowmik, learned senior counsel for the petitioner contends that unless the petitioner was allowed more three years extension beyond his age of 62 years, the service rendered by the petitioner would not be pensionable service as minimum 10 years service is required to get pension. but from the annexure-b to the counter-affidavit, that is memorandum bearing no. f.87(66)-de/66 dated 29.9.1977, it reveals that the power of the competent authority to grant extension of service in exceptional circumstances is conferred to the maximum period of two years exceeding 60 years of age, that is in no case the authority could allow extension of service beyond the age of 62 years of a teacher in govt. aided school. this being the position, 1 find no fault with the authority in rejecting the representation of the petitioner seeking three years' further extension of service. the learned counsel for the petitioner contends that if the service rendered by the petitioner beyond the age of 62 years is counted, he could have been entitled to get pension.5. mr. u.b. saha learned senior govt. advocate appearing on behalf of the respondents contends that the service rendered by the petitioner for three years beyond his 62 years of age, has been done by virtue of the temporary injunction granted by the learned trial court in the aforesaid misc. case. the petitioner did not render service for the aforesaid three years on his own right nor the respondents allowed the petitioner to continue in service for the aforesaid period of three years at their discretion, but the respondents allowed the petitioner and the petitioner also rendered service for the aforesaid three years by virtue of the injunctionorder granted by the learned trial court in the aforesaid misc. case subject to final decision of the suit.6. it is the correct proposition of law that any temporary injunction order passed during the pendency of the suit would be governed by the decision rendered in the suit at the conclusion of trial. since the petitioner's suit was dismissed, the period of three years he rendered service beyond the age of 62 years cannot be counted for any purpose.7. mr. saha, the learned senior govt. advocate submits that the competent authority was otherwise entitled to recover the over payment made to the petitioner for his over staying in service for the aforesaid period of three years, but since the learned trial court had forbidden the authority from recovering the over payment made to the petitioner, the authority did not make nay attempt to recover the same.8. mr. bhowmik, the learned senior counsel for the petitioner having referred rule 43 of the triple benefit scheme of 1965 contends that the authority was given the liberty under the aforesaid rule to allow any concession not contemplated in this rule and that should be done by the government of tripura, but in the present case the concession was not allowed by the order of the director of school education, tripura , who is not the competent authority to grant concession in view of rule 43 of the triple benefit scheme. i am unable to share with such contention because the government has no right to give any concession allowing the extension of service of the petitioner after he attained the age of 62 years in view of the amended memorandum dated 29.9.1977. the power to relax any rule for the purpose of allowing pensionary benefit is subject to the prohibition imposed by the aforesaid amended memorandum and in no case the authority could extend the service of the petitioner beyond the age of 62 years.9. the learned senior govt. advocate referred to citation reported in (1997) 4 scc 388 (committee of management. arya nagar inter college, arya nagar, kanpur through its manager and another, petitioner v. sree kumar tiwary and another, respondents). that was a case for regularisation of ad hoc appointment. the petitioner of that case rendered service for a consideration length of time by virtue of interim order passed by the hon'ble high court and thus the hob'ble supreme court held that the incumbent did not continue in service on his own right nor the employer allowed the extension of service at its discretion, but the incumbent continuedin service beyond the stipulated period because of the interim order granted by the high court and thus law never permits to count the said period to be period rendered by the incumbent for the purpose of counting his qualifying service.10. mr, saha, the learned senior govt. advocate having referred to the judgment of the learned trial court in the aforesaid title suit contends that since the identical prayer made by the petitioner in that case stood turned down by the learned trial court, the same point cannot be allowed to be adjudicated in this writ petition. 1 find force in the argument of mr. saha. in that title suit the learned trial court declined to allow the petitioner to be paid the pensionary benefit, but left the matter to the discretion of the authority, but that was also made subject to rules in force and thus the authority has rightly refused to extend the service of the petitioner beyond the age of 62 years in view of the amended memorandum dated 29.9.1977.11. viewed aforesaid, i find that the petition is devoid of merit and as such liable to be dismissed and is hereby dismissed with no order as to costs.
Judgment:

1. By this petition under Article 226 of the Constitution of India, the petitioner Jagadish Ch. Roy (since deceased) challenged the order dated 12.1.1994 (Annexure-2) passed by the respondent No. 2 rejecting the prayer of the petitioner seeking pensionary benefits and also sought for a direction commanding the respondents to allow the petitioner pensionary benefits.

2. The petitioner entered in service as Assistant Teacher in Pragati Vidya Bhavan, a Govt. aided private school on 23.3.1974 while the petitioner's date of birth was as on 1.1.1920. The petitioner's service at the relevant time was governed by the Union Territories Government Aided School Teachers Contributory Provident Fund-cum-Insurance-cum-Pension Rules, 1965 (hereinafter called'Triple Benefit Scheme'). Under the aforesaid scheme, a teacher of a Govt. aided school would go on retirement on completion of 60 years and the authority may in exceptional cases grant extension of service, but not beyond the age of 65 years subject to physical fitness of the incumbent concerned. That provision of triple benefit scheme issued vide Memorandum dated 19.11.1973 has been amended vide Memorandum dated 29.9.1977 whereby by the powerof the authority to extend the service of such teacher in exceptional circumstances was made upto the age of 62 years subject to physical fitness and mental alertness of the teacher. So from 29.9.1977 the maximum extension of service was made permissible not exceeding 62 years. The petitioner was to go on superannuation on completion of his 60 years of age 31.12.1979, but on petition the service of the petitioner was extended by two years upto 31.12.1981, that is he was allowed by the authority to continue in service upto the age of 62 years. The petitioner applied for further extension of three years' service to the authority, but the authority rejected his petition vide order dated 17.12.1981 and thus being aggrieved, the petitioner filed a Title Suit bearing No. 384 of 1981 in the court of learned Munsiff, Sadar, Agartala along with a temporary injunction petition bearing No. Misc. Case 474 of 1981 seeking a temporary injunction to be granted restraining the respondents from retiring the petitioner from service till disposal of the suit. Ex parte temporary injunction was granted in favour of the petitioner and subsequently on hearing, the said temporary injunction order was made absolute on 29.11.1982 and in this way the petitioner continued in service till he attained the age of 65 years upto 13.12.1984. The said suit was dismissed by the judgment and decree dated 10.5.1989 (Annexure -1 of the writ petition). The learned trial court by the aforesaid judgment and decree held that the plain tiff-petitioner continued in service beyond 31.12.1981 by virtue of the ex parte temporary injunction issued in the aforesaid Misc. Case No. 474 of 1981, which was subsequently made absolute, but the petitioner failed to establish his right to be retained in service after the completion of his 62 years of age and thus the aforesaid suit was dismissed. The learned counsel for the plaintiff-petitioner in that case prayed for counting the extended period of three years beyond 62 years being a period for qualifying service so as the petitioner would get the benefit under triple benefit scheme. Under the aforesaid scheme, the petitioner was entitled to get pension only in case he could complete minimum ten years of service. Though the learned Govt. Pleader allowed concession having left the matter with the court to treat the said period of three years as qualifying service, but the learned court having disagreed with the learned Govt. Pleader was declined to pass order directing the respondents to allow the pensionary benefits to the plaintiff-petitioner as according to the learned trial court, it would be beyond its jurisdiction. However, the learned trial court directed the defendant-respondents not to recover the play and allowances paid to the plaintiff-petitioner for rendering his service beyond 62 years as the petitioner having availed of thebenfit of temporary injunction order served for the aforesaid period of three years. The learned trial court also left the matter with the authority to consider if any pensionary benefit could be granted to the plaintiff-petitioner under the Rules in force. Thereafter, the plaintiff-petitioner made representation which stood rejected vide order dated 17.1.1994 by the Director of School Education, Tripura as already stated.

3. The admitted position of the case is that the petitioner just completed 7 years 9 months 8 days of service till he attained the age 62 years on 31.12.1981. Though in normal course the petitioner had to go on retirement two years earlier that is on 31.12.1979, but as two years service was extending by the authority as permissible under the triple benefit scheme, he could complete 7 years 9 months 8 days of service.

4. Mr. A. K. Bhowmik, learned senior counsel for the petitioner contends that unless the petitioner was allowed more three years extension beyond his age of 62 years, the service rendered by the petitioner would not be pensionable service as minimum 10 years service is required to get pension. But from the Annexure-B to the counter-affidavit, that is Memorandum bearing No. F.87(66)-DE/66 dated 29.9.1977, it reveals that the power of the competent authority to grant extension of service in exceptional circumstances is conferred to the maximum period of two years exceeding 60 years of age, that is in no case the authority could allow extension of service beyond the age of 62 years of a teacher in Govt. aided school. This being the position, 1 find no fault with the authority in rejecting the representation of the petitioner seeking three years' further extension of service. The learned counsel for the petitioner contends that if the service rendered by the petitioner beyond the age of 62 years is counted, he could have been entitled to get pension.

5. Mr. U.B. Saha learned senior Govt. Advocate appearing on behalf of the respondents contends that the service rendered by the petitioner for three years beyond his 62 years of age, has been done by virtue of the temporary injunction granted by the learned trial court in the aforesaid Misc. case. The petitioner did not render service for the aforesaid three years on his own right nor the respondents allowed the petitioner to continue in service for the aforesaid period of three years at their discretion, but the respondents allowed the petitioner and the petitioner also rendered service for the aforesaid three years by virtue of the injunctionorder granted by the learned trial court in the aforesaid Misc. case subject to final decision of the suit.

6. It is the correct proposition of law that any temporary injunction order passed during the pendency of the suit would be governed by the decision rendered in the suit at the conclusion of trial. Since the petitioner's suit was dismissed, the period of three years he rendered service beyond the age of 62 years cannot be counted for any purpose.

7. Mr. Saha, the learned senior Govt. Advocate submits that the competent authority was otherwise entitled to recover the over payment made to the petitioner for his over staying in service for the aforesaid period of three years, but since the learned trial court had forbidden the authority from recovering the over payment made to the petitioner, the authority did not make nay attempt to recover the same.

8. Mr. Bhowmik, the learned senior counsel for the petitioner having referred Rule 43 of the Triple Benefit Scheme of 1965 contends that the authority was given the liberty under the aforesaid Rule to allow any concession not contemplated in this rule and that should be done by the Government of Tripura, but in the present case the concession was not allowed by the order of the Director of School Education, Tripura , who is not the competent authority to grant concession in view of Rule 43 of the Triple Benefit Scheme. I am unable to share with such contention because the Government has no right to give any concession allowing the extension of service of the petitioner after he attained the age of 62 years in view of the amended Memorandum dated 29.9.1977. The power to relax any Rule for the purpose of allowing pensionary benefit is subject to the prohibition imposed by the aforesaid amended Memorandum and in no case the authority could extend the service of the petitioner beyond the age of 62 years.

9. The learned senior Govt. Advocate referred to citation reported in (1997) 4 SCC 388 (Committee of Management. Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and another, petitioner v. Sree Kumar Tiwary and another, respondents). That was a case for regularisation of ad hoc appointment. The petitioner of that case rendered service for a consideration length of time by virtue of interim order passed by the Hon'ble High Court and thus the Hob'ble Supreme Court held that the incumbent did not continue in service on his own right nor the employer allowed the extension of service at its discretion, but the incumbent continuedin service beyond the stipulated period because of the interim order granted by the High Court and thus law never permits to count the said period to be period rendered by the incumbent for the purpose of counting his qualifying service.

10. Mr, Saha, the learned senior Govt. Advocate having referred to the judgment of the learned trial court in the aforesaid Title Suit contends that since the identical prayer made by the petitioner in that case stood turned down by the learned trial court, the same point cannot be allowed to be adjudicated in this writ petition. 1 find force in the argument of Mr. Saha. In that Title Suit the learned trial court declined to allow the petitioner to be paid the pensionary benefit, but left the matter to the discretion of the authority, but that was also made subject to Rules in force and thus the authority has rightly refused to extend the service of the petitioner beyond the age of 62 years in view of the amended Memorandum dated 29.9.1977.

11. Viewed aforesaid, I find that the petition is devoid of merit and as such liable to be dismissed and is hereby dismissed with no order as to costs.