STATE OF MADHYA PRADESH & OTHERSversusHITKISHORE GOSWAMI

                        [2015] 2 S.C.R. 202


A           STATE OF MADHYA PRADESH & OTHERS
                                  v.
                      HITKISHORE GOSWAMI
                  (CivilAppeal No. 1892 of2015)
                        FEBRUARY 16, 2015
B
           [FAKKIR MOHAMED IBRAHIM KALIFULLA
              AND ABHAY MANOHAR SAPRE, JJ.]
        Service Law- Counting of past service - For the purpose
  of fixation of pay and other retiral benefits - Permissibility of
C - Held: The employee was not entitled to benefit of his past
  service i.e. his previous employment, from which he
  voluntarily retired to join the subsequent service - On
  tendering of resignation, relationship between the employer
  and employee severed for all purposes - Previous
D employment neither had any connection with the subsequent
  employment nor was there any rule or condition recognizing
  such continuity of service.

        Allowing the appeal, the Court
E
       HELD: 1. 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 while determining his qualifying servic~ for
F fixing his pension etc. [Para 17] [207-G]
      2. The 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
G other services with the State, no benefit of such past
  services was available to the respondent. The effect
  of tendering the resignation by the respondent was
  that the relationship between the parties insofar as that
H                                202
     STATE OF MADHYA PRADESH v. HITKISHORE                 203
                   GOSWAMI

particular employment was concerned got severed for A
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". [paras 18-19] [207-H; 208-A-C]
                                                               B
     3. In order to claim continuity in the service for
claiming any benefit arising therefrom, it 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 C
to show any such rule or/and condition in his favour.
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. [paras 20-21] [208-0-E]            D

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1892of2015

    From the Judgment and Order dated 09.10.2013 of the        E
High Court of Madhya Pradesh, Bench at Gwalior in Writ
Appeal No. 478 of 2013

    C. D. Singh, Apporv Kurup for the Appellants.

    Pashpathi Nath Razdan, Abhinav Ramakrishna,                F
Prashant Shukla for the Respondents.

    The Judgment of the Court was delivered by

    ABHAY MANOHAR SAPRE, J. 1. Leave granted.
                                                               G
    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).                                              H
204         SUPREME COURT REPORTS                 (2015] 2 S.C.R.



A      3. By impugned judgment, the Division Bench of 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
 B (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
 c    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.
 D
          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 Kan nod, District Dewas and later transferred to
 E    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,
 F 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
 G 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
 H University, Bhopal. The respondent continued to work there
     STATE OF MADHYA PRADESH v. HITKISHORE                      205
       GOSWAMI [ABHAY MANOHAR SAPRE, J.]

when his services were absorbed permanently on                    A
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.

     ~· The respondent then applied for assessing his pension
                                                                   8
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 "3'd January 1966".
However, later, the respondent joined an issue with the State
that while calculating his pensionery benefits, the past period    c
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 D
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 E
services to fix his pension and other retiral benefits payable to
him.

     11 . The State contested the respondent's writ petition on
two grounds. In the first place it was contended that the claim
made by the respondent is inordinately delayed and hence F
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 G
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        H
206         SUPREME COURT REPORTS                     [2015] 2 S.C.R.



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

D         (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
 E        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
 F    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
G 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 impugned directions. It was his submission that once the
  respondent voluntarily tendered his resignation from his earlier
H service, which on its acceptance, enabled him to join the new
     STATE OF MADHYA PRADESH v. HITKISHORE                     207
       GOSWAMI [ABHAY MANOHAR SAPRE, J.)

service as Lecturer in the Government Degree College, the A
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 B
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 C
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 submission was
that when the respondent himself mentioned in his Pension
Form (Annexure-P-1) that his date of beginning in the service D
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   E
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       F
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 G
Government Schools 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       H
208         SUPREME COURT REPORTS                      [2015] 2 S.C.R.

A 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.

 8          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.
c     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 was necessary for
  the respondent to have shown any specific rule or condition
D 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
E 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
F 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
G finding recorded in the preceding paragraph.
      24. In the light of foregoing discussion, we are of the
  considered opinion that the courts below erred in directing the
  State to give benefit to the respondent of his services which
H he had rendered from "02.07.1963 to 02.01.1966" for fixing
      STATE OF MADHYA PRADESH v. HITKISHORE                        209
        GOSWAMI [ABHAY MANOHAR SAPRE, J.]

his pension without properly examining the effect of his               A
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)
                                                                       8
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 !aches in filing the writ petition   C
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 the ground
of delay and !aches on the part of respondent.                         D

    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.
                                                                       E
      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.                                               F

Kalpana K. Tripathy                                  Appeal allowed