STATE OF RAJASTHAN & OTHERSversusO.P. GUPTA

                        [2022] 7 S.C.R. 321                              321


               STATE OF RAJASTHAN & OTHERS                               A
                                  v.
                            O.P. GUPTA
          (Special Leave Petition (Civil) No. 16734 of 2022)
                       SEPTEMBER 19, 2022                                B
    [INDIRA BANERJEE AND J.K. MAHESHWARI, JJ.]
       Service Law: Pension – Respondent was initially appointed
in 1967 as Assistant Charge Man in the Rajasthan Agriculture
Engineering Board from where his services were transferred to the
                                                                         C
Rajasthan State Agro Industry Corporation, where he worked till
12 th April 1977 – Respondent resigned from Rajasthan State Agro
Industry Corporation to take up appointment as Assistant Director
(Agro-Industries) in the Department of Industries in the State of
Rajasthan, after being selected through the RPSC – High Court
held that service rendered by respondent/writ petitioner prior to        D
resignation from the Rajasthan State Agro Industry Corporation
should be counted for the purpose of pension – Held: There can be
no doubt that resignation from service may entail forfeiture of past
service – However, sub-rule (2) of r.25 of the Rajasthan Civil
Services (Pension) Rules, 1996 carves out an exception – The said
                                                                         E
sub-rule clarifies that a resignation with proper permission to take
up another appointment, whether temporary or permanent, under
the Government shall not entail forfeiture of past service –
Respondent applied for the post of Assistant Director (Agro-
Industries), while he was still in service of the Rajasthan State Agro
Industry Corporation, which is also an entity fully controlled by the    F
State of Rajasthan – Respondent having retired after working for
about 26 years, the State cannot raise the question of proof of prior
permission before resignation, more so when the appointment had
been made through the RPSC to a Government post – It is to be
presumed that prior permission had been taken unless the contrary
                                                                         G
could be established by the State – High Court rendered a just
decision based on a purposive interpretation of Rule 25(2) of the
Rules applied to the admitted facts on record. The interpretation
given by the High Court to Rule 25(2) of the Rules is a plausible
interpretation.
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                                 321
322            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A           Constitution of India: The State is bound by the fundamental
      rights of its employees under Arts.14 to 16 of the Constitution of
      India – It is now well settled that arbitrariness violates the right to
      equality under Arts.14 to 16 of the Constitution of India.
             Writ jurisdiction: Relief under Art.226 of the Constitution of
B     India being discretionary, the Courts might in their discretion refuse
      to entertain the Writ Petition, where there is gross delay on the part
      of the Writ Petitioner, particularly, where the relief sought would, if
      granted, unsettle things, which are already settled – In the instant
      case, although there was a delay of six years in filing the writ petition,
      however, the laws of limitation do not apply to exercise of jurisdiction
C     under Art.226 of the Constitution of India – Respondent-Writ
      Petitioner is claiming pension, which is a life long benefit – Denial
      of pension is a continuing wrong – When financial rules framed by
      the Government such as Pension Rules are capable of more
      interpretations than one, the Courts should lean towards that
D     interpretation which goes in favour of the employee.
            Dismissing the Special Leave Petition, the Court
              HELD: 1.1 There can be no doubt that resignation from
      service may entail forfeiture of past service. However, sub-rule
      (2) of Rule 25 of the Rules carves out an exception. The said
E     sub-rule clarifies that a resignation with proper permission to
      take up another appointment, whether temporary or permanent,
      under the Government shall not entail forfeiture of past service.
      The Respondent was selected through the RPSC. He applied for
      the post of Assistant Director (Agro-Industries), while he was
F     still in service of the Rajasthan State Agro Industry Corporation,
      which is also an entity fully controlled by the State of Rajasthan.
      The Respondent having retired after working for about 26 years,
      the Petitioner - State cannot raise the question of proof of prior
      permission before resignation, more so when the appointment
      had been made through the RPSC to a Government post. It is to
G     be deemed that there has been disclosure of past service and
      the application has been made through proper channel by
      obtaining the requisite approvals. [Paras 23, 24, 25][328-B-F]



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      STATE OF RAJASTHAN & OTHERS v. O.P. GUPTA                            323


      1.2 It is to be presumed that prior permission had been              A
taken unless the contrary could be established by the State. May
be there was a delay of six years in filing the Writ Petition,
however, it is well settled that the laws of limitation do not apply
to exercise of jurisdiction under Article 226 of the Constitution
of India. Relief under Article 226 of the Constitution of India
                                                                           B
being discretionary, the Courts might in their discretion refuse
to entertain the Writ Petition, where there is gross delay on the
part of the Writ Petitioner, particularly, where the relief sought
would, if granted, unsettle things, which are already settled. In
this case, the Respondent-Writ Petitioner is claiming pension,
which is a life long benefit. Denial of pension is a continuing wrong.     C
This Court cannot also be oblivious to the difficulties of a retired
employee in approaching the Court, which could include financial
constraints. It is settled law that when financial rules framed by
the Government such as Pension Rules are capable of more
interpretations than one, the Courts should lean towards that
                                                                           D
interpretation which goes in favour of the employee. [Paras 26,
27, 28][328-F-H; 329-A-B]
      N. Suriyakala v. A. Mohandossand Ors. (2007) 9 SCC
      196 : [2007] 2 SCR 419; Citing Bengal Chemical and
      Pharmaceutical Works Ltd. v. Employees AIR 1959 SC
      633 : [1959] 2 Suppl. SCR 136 – relied on.                           E

                        Case Law Reference
[2007] 2 SCR 419                      relied on        Para 29
[1959] 2 Suppl. SCR 136               relied on        Para 30
                                                                           F
       CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 16734 of 2022.
      From the Judgment and Orders dated 28.11.2019 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal
(Writ) No. 443 of 2018.
                                                                           G
      Dr. Manish Singhvi, Sr. Adv., B. S. Rajesh Agrajit, Arpit Parkash,
D. K. Devesh, Advs. for the Petitioners.
    Ms. Archana Pathak Dave, Avnish Dave, Ms. Vanya Gupta,
Kumar Prashant, Advs. for the Respondent.
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324            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A           The Judgment of the Court was delivered by
            INDIRA BANERJEE, J.
            1. Delay Condoned.
             2. This Special Leave Petition has been filed challenging the final
B     judgment and order dated 28th November 2019, in D.B. Special Appeal
      Writ No. 443 of 2018 passed by the High Court of Judicature for Rajasthan
      Bench at Jaipur, whereby the High Court dismissed the Writ Appeal
      filed by the Petitioners and upheld the judgment of the Single Bench
      dated 5th May 2017 in S.B. Civil Writ Petition No. 5879 of 2009, whereby
      the Single Judge had allowed the Writ Petition filed by the Respondent.
C
            3. The Respondent was initially appointed as an Assistant Charge
      Man in the Rajasthan Agriculture Engineering Board, Department of
      Agriculture, Government of Rajasthan w.e.f. 13th January 1967.
             4. The Engineering Board was subsequently merged with the
D     Rajasthan State Agro Industry Corporation. Accordingly, the services of
      the Respondent were transferred to the Rajasthan State Agro Industry
      Corporation vide transfer order dated 8th July 1970, on the same pay
      scale. He worked with Rajasthan State Agro Industry Corporation
      continuously till 12th April 1977.
            5. Pursuant to an advertisement dated 16th June 1976 issued by
E
      the Rajasthan Public Service Commission (hereinafter referred to as
      “RPSC”), the Respondent applied for the post of Assistant Director
      (Agro-Industries). The Respondent was selected for the post of Assistant
      Director (Agro-Industries), Department of Industries, State of Rajasthan.
            6. The Respondent was appointed as Assistant Director (Agro-
F
      Industries), Department of Industries, State of Rajasthan by an order
      dated 7th April 1977. According to the Respondent, he joined service in
      the Department of Industries on 16th April 1977.
             7. The Respondent while serving in the Department of Industries,
      attained the age of superannuation and retired on 30th April 2003 from
G     the post of Additional Director of Industries, Headquarter, Jaipur.
      However, while counting the length of service of the Respondent for the
      purpose of calculating pension and other retiral benefits, the Petitioners
      did not count the tenure from 13th January 1967 to 12th April 1977 (i.e.
      the period for which the Respondent worked for the Rajasthan Agriculture
H     Engineering Board and the Rajasthan State Agro Industry Corporation).
       STATE OF RAJASTHAN & OTHERS v. O.P. GUPTA                            325
                  [INDIRA BANERJEE, J.]

        8. The Respondent submitted representations to the Department       A
of Industries requesting that his service tenure from 13 th January 1967
to 12th April 1977 be counted for the purposes of his pension and retiral
benefits. However, the request for counting the service tenure from
13th January 1967 to 12th April 1977, was not granted.
       9. Aggrieved, the Respondent filed S.B. Civil Writ Petition No.      B
5879 of 2009 before the Single Judge, Rajasthan High Court on or about
20th March 2009. The moot point for consideration before the Single
Judge was, whether service rendered by the Respondent/Writ Petitioner
prior to resignation from the Rajasthan State Agro Industry Corporation,
should be counted for the purpose of pension.
                                                                            C
       10. By a Judgment and Order dated 5th May 2017, the Single
Bench allowed S.B. Civil Writ Petition No. 5879 of 2009 and held that
the service rendered by the Respondent with the Rajasthan Agriculture
Engineering Board and the Rajasthan State Agro Industry Corporation,
was liable to be counted, while computing pension/other pensionary
benefits of the Respondent.                                                 D

       11. The Writ Petition was disposed of with a direction to the
Petitioners to count the earlier period of service rendered by the
Respondent with the Rajasthan Agriculture Engineering Board and the
Rajasthan State Agro Industry Corporation to compute the total
pensionable service of the Respondent and release his pension and retiral   E
benefits including arrears of pension with interest @ 9% p.a. within a
period of three months from the date of the submission of the certified
copy of the order. According to the Respondent, a copy of the judgment
and order dated 5th May 2017 was submitted to the Petitioners on 15th
May 2017 by registered post. However, the Petitioners did not comply        F
with the Judgment and order.
       12. The Petitioner–State filed an appeal being D.B. Special Appeal
Writ No. 443 of 2018 against the judgment and order dated 5th May
2017 before the Division Bench. The Respondent filed a Contempt
Petition, being S.B. Civil Contempt Petition No. 265 of 2018 alleging       G
non-compliance of the Judgment and order dated 5th May 2017 in spite
of knowledge thereof. It was submitted that a copy of the judgment and
order had been served on the Petitioners on 15th May 2017 by registered
post.

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326            SUPREME COURT REPORTS                         [2022] 7 S.C.R.


A            13. By an order dated 14th March 2018 in S.B. Civil Contempt
      Petition No. 265 of 2018, the High Court directed the Petitioners to
      comply with the judgment and order dated 5 th May 2017 within 15 days,
      failing which the Additional Chief Secretary, Department of Industries,
      Government of Rajasthan would have to be present in Court and explain
      the reasons/circumstances for non-compliance.
B
            14. By the impugned Judgment and Order dated 28 th November
      2019, the Division Bench of the High Court dismissed the Writ Appeal
      being D. B. Special Appeal Writ No. 443 of 2018 with the following
      observations:
C           “...Admittedly, service of the respondent under the Rajasthan
            Agriculture Engineering Board was pensionable. As per Rule
            25(2) of the Rajasthan Civil Services (Pension) Rules, 1996,
            resignation shall not entail forfeiture of past service if it has
            been submitted to take up, with proper permission, another
            appointment whether temporary or permanent, under the
D           Government where service qualifies. Hence, learned Single
            Judge has rightly held service rendered by the respondent
            with Rajasthan Agriculture Engineering Board and Rajasthan
            Agro Industry Corporation was liable to be counted while
            computing pension/other pensionary benefits of the
E           respondent.”
            15. Rule 25 of the Rajasthan Civil Services (Pension) Rules, 1996
      hereinafter referred to as “the Rules” reads as follows:
            “25. Forfeiture of Service on resignation

F           (1) Resignation from a service or a post, entails forfeiture of
            past service.
            (2) A resignation shall not entail forfeiture of past service if it
            has been submitted to take up, with proper permission, another
            appointment, whether temporary or permanent, under the
            Government where service qualifies.
G
            (3) Interruption in service in a case falling under sub-rule
            (2), due to the two appointments being at different stations,
            not exceeding the joining time admissible under the rules of
            transfer, shall be covered by grant of leave of any kind due
            to the Government servant on the date of relief or by formal
H
       STATE OF RAJASTHAN & OTHERS v. O.P. GUPTA                             327
                  [INDIRA BANERJEE, J.]

      condonation to the extent to which the period is not covered           A
      by leave due to him.”
      16. Admittedly, the Respondent was initially appointed as Assistant
Charge Man in the Rajasthan Agriculture Engineering Board from where
his services were transferred to the Rajasthan State Agro Industry
Corporation, where he worked till 12th April 1977. Thereafter he was         B
appointed Assistant Director (Agro-Industries) in the Industry Department
and submitted his resignation from the Rajasthan State Agro Industry
Corporation. Admittedly, the service of the Respondent under the
Rajasthan Agriculture Engineering Board and the Rajasthan State Agro
Industry Corporation was pensionable, as found by the High Court.
                                                                             C
       17. Dr. Manish Singhvi, learned Senior Counsel, appearing on
behalf of the Petitioners argued that the High Court had misconstrued
Rule 25(2) of the Rules. He argued that resignation entails forfeiture of
past service with the Rajasthan State Agro Industry Corporation, for the
purpose of pension.
                                                                             D
       18. The Respondent resigned from Rajasthan State Agro Industry
Corporation to take up appointment as Assistant Director (Agro-
Industries) in the Department of Industries in the State of Rajasthan,
after being selected through the RPSC.
       19. The Division Bench and the Single Bench of the High Court         E
have concurred. The effective and concurrent factual finding of the
Division Bench and the Single Bench of the High Court, that the
Respondent had resigned with proper permission to take up another
appointment, under the Government, for which he was qualified, does
not call for interference under Article 136 of the Constitution of India.
                                                                             F
      20. Dr. Singhvi, emphatically argued that :
         i. the Writ Petition was filed by the Respondent after six years.
         ii. the Respondent was appointed to a higher post in the Industry
             Department. As such his past employment was
             inconsequential.                                                G
         iii. There was no proof of prior permission before resignation
              from Rajasthan State Agro Industry Corporation.
      21. Dr. Singhvi submitted that the appointment was a fresh
appointment for which past service was inconsequential. Dr. Singhvi,
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328             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A     emphatically argued that, in service jurisprudence, resignation necessarily
      leads to cessation from service and entails forfeiture of past service.
      The stand taken by the State is arbitrary, unreasonable and misconceived.
             22. The State is bound by the fundamental rights of its employees
      under Articles 14 to 16 of the Constitution of India. It is now well settled
B     that arbitrariness violates the right to equality under Articles 14 to 16 of
      the Constitution of India.
             23. There can be no doubt that resignation from service may entail
      forfeiture of past service. However, sub-rule (2) of Rule 25 of the Rules
      carves out an exception. The said sub-rule clarifies that a resignation
C     with proper permission to take up another appointment, whether
      temporary or permanent, under the Government shall not entail forfeiture
      of past service.
             24. At the cost of repetition, it is reiterated that the Respondent
      was selected through the RPSC. He applied for the post of Assistant
D     Director (Agro-Industries), while he was still in service of the Rajasthan
      State Agro Industry Corporation, which is also an entity fully controlled
      by the State of Rajasthan.
             25. The Respondent having retired after working for about 26
      years, the Petitioner - State cannot raise the question of proof of prior
E     permission before resignation, more so when the appointment had been
      made through the RPSC to a Government post. It is to be deemed that
      there has been disclosure of past service and the application has been
      made through proper channel by obtaining the requisite approvals.
             26. It is to be presumed that prior permission had been taken
F     unless the contrary could be established by the State. May be there was
      a delay of six years in filing the Writ Petition, however, it is well settled
      that the laws of limitation do not apply to exercise of jurisdiction under
      Article 226 of the Constitution of India. Relief under Article 226 of the
      Constitution of India being discretionary, the Courts might in their
      discretion refuse to entertain the Writ Petition, where there is gross delay
G     on the part of the Writ Petitioner, particularly, where the relief sought
      would, if granted, unsettle things, which are already settled.
            27. In this case, the Respondent-Writ Petitioner is claiming pension,
      which is a life long benefit. Denial of pension is a continuing wrong.
      This Court cannot also be oblivious to the difficulties of a retired employee
H     in approaching the Court, which could include financial constraints.
          STATE OF RAJASTHAN & OTHERS v. O.P. GUPTA                            329
                     [INDIRA BANERJEE, J.]

       28. It is settled law that when financial rules framed by the           A
Government such as Pension Rules are capable of more interpretations
than one, the Courts should lean towards that interpretation which goes
in favour of the employee.
      29. Ms. Archana Pathak Dave, counsel appearing on behalf of
the Respondent argued that Article 136 of the Constitution of India does       B
not create a regular forum of Appeal. It is only a residual provision
which enables this Court to interfere with the judgment and order of any
Court or Tribunal in India, in its discretion, as observed by this Court in
N. Suriyakala v. A. Mohandoss and Ors.1.
       30. Citing Bengal Chemical and Pharmaceutical Works Ltd.                C
v. Employees2, Ms. Dave argued that since power under Article 136 of
the Constitution of India was discretionary, this Court is not bound to set
aside an order under Article 136, even if it was not in conformity with
law.
       31. The High Court has rendered a just decision based on a              D
purposive interpretation of Rule 25(2) of the Rules applied to the admitted
facts on record. The interpretation given by the High Court to Rule
25(2) of the Rules is a plausible interpretation.
     32. We, therefore, find no grounds to interfere with the impugned
judgment and order passed by the High Court.                                   E
          33. The Special Leave Petition is, accordingly, dismissed.


Devika Gujral                                                 SLP dismissed.

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1
    (2007) 9 SCC 196
2
    AIR 1959 SC 633 (at 635)                                                   H