Supreme Court of India
T. RAMAKRISHNIAHversusSTATE OF KARNATAKA
- Citation
- 1990 INSC 191
- Decided
- 4 May 1990
- Disposal
- Dismissed
- Bench
- B C RAY
Holding
The service conditions of a non‑official member of the Sales Tax Appellate Tribunal are governed by the Mysore Sales Tax Rules, and under Rule 64(6) the member is not eligible for superannuation pension.
Summary
The appellant, a chartered accountant, was appointed as a non‑official member of the Karnataka Sales Tax Appellate Tribunal under Section 4(2) of the Karnataka Sales Tax Act, 1957, with his tenure periodically extended. Upon retirement he claimed a superannuation pension under the Mysore Civil Service Rules, 1957, arguing that he was a government servant. The High Court held that Rule 64 of the Mysore Sales Tax Rules governed his service and that he was ineligible for pension, a decision affirmed by the Division Bench. On appeal, the Supreme Court examined whether the Civil Service Rules applied to a non‑official member whose appointment was made under a special statutory provision. It observed that Rule 2(2) of the Civil Service Rules excludes their application where special provisions exist, and that Rule 64(6) of the Sales Tax Rules expressly disallows pension for such members. Since the appellant’s service was governed by the Sales Tax Rules, he was not entitled to superannuation pension, though he could claim gratuity. Consequently, the appeal was dismissed.
Issues considered
- Whether the Mysore Civil Service Rules, 1957 apply to a non‑official member of the Karnataka Sales Tax Appellate Tribunal appointed under the Karnataka Sales Tax Act, 1957.
- Whether Rule 64(6) of the Mysore Sales Tax Rules, 1957, which excludes pension for non‑official members, is applicable to the appellant despite being introduced after his initial appointment.
- Whether the appellant is entitled to a superannuation pension as a government servant under the Civil Service Rules.
- Whether the appellant qualifies as a government servant for purposes of pension entitlement.
Legislation cited
Subjects
superannuation pensionnon‑official membersales tax appellate tribunalapplicability of service rulesgovernment servantgratuitypart‑time service
Judgment
T. RAMAKRISHNIAH
A
v.
STAIB OF KARNATAKA
MAY 4, 1990
[B.C. RAY AND N.M. KASLIWAL, JJ.] B
Civil Services: Mysore Civil Services Rules, 1957: Rules 2(2), 95
and 283. Non-official Member of State Sales Tax Appellate Tribunal-
> Applicability of-Superannuation pension-Entitlement to.
" Karnataka Sales Tax Act, 1957/Mysore Sales Tax Rules, 1957:
c
Section 4(2)/Rule· 64-Non-official Member of Sales Tax Appellate
Tribunal-Whether entitled to superannuation pension-Mysore Civil
Services Rules-Applicability of.
, The appellant was appointed as a non-official member of the State
.>--- Sales Tax Appellate Tribunal for a period of two years from 17.7.1958, D
under sub-section(2) of Section 4 of the Mysore Sales Tax Act, 1957.
The appointment was extended from time to time and continued upto
8.2.1972. By a letter dated 8.2.1972, the respondent intimated the
appellant that he had been granted 52 days Earned Leave as terminal
leave from 9th February, 1972. The appellant represented for grant of
superannuation pension. This was rejected by the Government on the E
ground that he was not eligible for pension.
The appellant's writ petition was dismissed by a single Judge of
the High Court who held that rule 64 of the Karnataka Sales Tax
Rules, 1957 was applicable to him, and that he was not eligible to claim
superannuation pension. This was upheld by the Division Bench. F
In the appeal before this Court, on behalf of the appellant it was
contended that as a non-official member of the Tribunal, he was a
government servant, and as such, like other Government servants, he
was entitled to grant of pension in accordance with Mysore Civil Service
Rules, that he was retired from service after reching the age of superan- G
nuation, that his appointment was not a contract appointment, that he
was paid travelling allowance under the Mysore Civil Service Rules,
and that Rule 64(6) of Mysore Sales Tax Rules inserted in 1964, and
substituted in 1971, not being in existence at the time of his appoint-
ment, could not be made applicable to him as to deprive him of the
benefit of superannuation pension as provided in the Mysore Civil H
Service Rules.
207
208 SUPREME COURT REPORTS [ 1990] 3 S.C.R.
Dismissing the appeal, this Court,
A
HELD: I. The terms and conditions of service of the appellant
who was appointed as a non-official member in the Karnataka Sales
Tax Appellate Tribunal under sub-section (2) of Section 4 of Karnataka
Sales Tax Act, 1957 and was given last extension 01 the period of service
B under clause (b) of sub-rule (1) of Rule 64 of the Mysore Sales Tax
Rules, 1957, will be governed by the Mysore Sales Tax Rules and not l;y
the provisions of Mysore Civil Services Rules. Since sub-rule (6) of rule
64 of Mysore Sales Tax Rules was substituted in place of original sub-
rule (6) before the appellant retired from service on expiry of his period
of service, this rule applies to him, and he is not entitled to get any
superannuation pension. !211D-E; GJ
c
2.1 Sub-rule (2) of Rule 2 of Mysore Civil Service Rules 1957,
clearly says that in cases where special provisions have been made by or
under any law for the time being in force, the Mysore Service Rules do
not apply. Furthermore, Rule 283 of the said Rules states that a
D superannuation pension is granted to a Gov<rmnent Servant who is
compelled by Rule to retire at a particular age. Rule 95 provides that
the date of compulsory retirement of a Govermnent servant is the date
on which he attains the age of 55 years, and the Govermnent servant
may be retained upto 60 years of age with the sanction of Govermnent,
but not after the age of 60 years. [212C; E-F]
E
2.2 Rule 64(6) of the Mysore Sales Tax Rules, 1957 clearly says
that the non-official member of the Sales Tax Tribunal will become
ineligible for any pension. Hence, provisions relating to pension as pro-
vided in Mysore Civil Service Rules, 1957 will not apply to a non-official 11111
member. [212D-E] •
F
2.3 In the instant case, the appellant was appointed as a member -\
of the Tribunal for a period of two years initially, and thereafter his
tenure was extended periodically and he left the service as non-official
member of the Tribunal after he crossed the age of 61 years. There was
no specific order that the appellant was due to retire at the age of 55
G years. There is no rule for a non-official member to retire at a particu-
lar age. Moreover, the Government sanctioned certain terms and con-
ditions of his appointment. It is periodical and not upto a maximum
age, nor it is a whole-time service but a part-time one and the appellant ,"-
was permitted to take up audit of any person, firm, institution etc. on
certain restrictions. A Govermnent servant has to render whole time
H service. Therefore, the Mysore Civil Service Rules, 1957 do not apply to the
I
T. RAMAKRISHNIAH v. STATE OF KARNATAKA [RAY, J.] 209
appellant, ana be~ not eligible for superannuation pemion. [2UF-G; 213CD]
A
CIVIL APPELLAlE JURISDICTION: Civil Appeal No lO(N) ·
of 1981.
From the Judgment and Order dated 22nd March, 1978 of the
Aarnataka High Court in Writ Appeal No. 520 of 1975: B
. -
R.B. Datar, K.R. Nagaraja and R.S. Hegde forthe Appellant.
M. Veerappa for the Respondent.
The Judgment of the Court was delivered by
c
RAY, J. This appeal by special leave is against the judgment and
order dated 22nd March, 1978 made in Writ Appeal No. 520 of 1975
dismissing the appeal and confirming the judgment and order made in
Writ Petition No. 3073of1974 on 18.7.1985. • ·
D
The appellant who was a chartered accountant was appointed as
a non-official member of the Sales Tax Appellate Tribunal, in the
State of Kamataka by an order (No. RD 80 SXE 1958) dated 16th
July, 1958 for a period of two years from 17tlr July 1958 under .sub-
section (2) of Section 4 of the Mysore Sales Tax Act; 1957 (Mysore Act
y. No. 25of1957). By an order No. RD 17SXT58dated 12th December, E;
1958 issued by the Government it h~ been mentioned that the appel-
lant as member of Sales Tax Tribunal shall be eligible for Travelling
Allowance under the Mysore Civil Service (Classification, Control and
~-- Appeals) Rules 1958 as a government servant in respect of tours un-
dertaken by him in connection with his official duty on the basis of his
salary Rs.1,000 per month. Thereafter the appointment was continued F
from time to time;the last of the period during which the appointment
T was continued, was by a notification No. FD 6 CAT 71 "ated 8th
November 1971 by which his period_ of service was extended for a
period of two months with effect from 9.12.1971. This notification was
issued in exercise of powers conferred by,clause (b) of sub-rule 1 of
Rule 64 of the Mysore Sales Tax Rule, 1957. The respondent by a G
letter dated 8.2.197_2 intimated him that he had been granted 52 days
earned leave as terminal leave from 9th February,· 1972. The appellant
made representations to the respondent that he was entitled to
· *· · superannuation pension, and same be granted to him. The Govern-_
ment turned down his request on the ground that he was not eligible
for such pension. The appellant, then, moved a writ petition No. 3073 _ H
210 SUPREME COURT REPORTS [1990] 3 S.C.R.
of 1974 before the High Court, Karnataka stating that he was granted
A
leave on several occ~sions in accordance with the Mysore Civil Srvice
Rules and the Accountant General had treated him as a gazetted ~
officer in the service of the State Government and as such as a Govern-
ment servant he may be granted superannuation pension under the
Mysore Civil Service Rules. The learned Single Judge held that Rule 64
B of the Karnataka Sales T Ax Rules, 1957 was appllcable to this case and
under the said Rules he was not eligible to claim superannuation
pension. It was further held that even under the Mysore Civil Service
Rules he would not be entitled to claim such a pension. The writ .J
petition was dismissed. The learned Judge, of course, held that the
appellant would be entitled to gratuity in terms of Rule 64 and so
directed the Government to examine the case of the appellant for
c grant of gratuity under the rule and pass appropriate orders in that
regard expeditiously.
The appellant feeling aggrieved preferred Writ Appeal No. 520 ..1_,
of 1975 which was dismissed by the High Court and the judgment
D pronounced in the writ petition was upheld.
It is against this judgment and order, this appeal on special leave
has been filed.
The main plank of the argument of the counsel for the appellant
E is that the appellant as a member of the Sales Tax Tribunal was a ·"-
government servant and as such like other government servants he is
entitled to the grant of superannuation pension in accordance with
Mysore Civil Service Rules. Several Rules have been referred to in
support of his submission that he was retired from service after reach-
ing the age of superannuation. He further submitted that the appoint-
r
' _
F ment of appellant was not a contract appointment and so the Mysore -
Civil Service Rules are applicable to the appellant for payment of
superannuation pension. "
It is not disputed that the appellant was appointed as a non-
official member of the Karnataka Sales Tax Appellate Tribunal under
G sub-section (2) of Section 4 of the Mysore Sales Tax Act, 1957. This is
evident from the notification dated 16. 7 .1958 issued by the Govern-
ment appointing the appellant as a member of Sales Tax Tribunal as
well as from Order No. RD 17 SXT 58 dated 12th December 1958. Tlie
appointment was continued from time to time and the last extension
was given by Order No. FD 6 CAT 71dated8th November, 1971 made •
H under clause (b) of sub-rule (1) of Rule 64 of the Mysore Sales Tax
r
T. RAMAKRISHNIAH v. STATE OF KARNATAKA [RAY, J.] 211
Rules, 1957. It is relevant to notice in this connection that Rules 63
'" and 64 were introduced by a notification No. FD 18 CAT 62 dated
A
I0/13th January, 1964. Sub-rule (6) of Rule 64 is quoted below:
"The non-official member shall not be eligible for any pen-
sion, gratuity or other remuneration."
B
By further notification No. FD 614 dated 7th April, 1971, a new
.,.t Sub-rule (6) was substituted which was to the following effect:
"( 6) The non-official member shall be eligible for gratuity
equivalent to one month's pay for each completed year of
service .including interruption or interruptions, if any, the
total duration of which does not exceed 180 days but shall c
not be eligible for any pension or other remuneration."
Thus the appellant was appointed as a non-official member in the
Karnataka Sales Tax Appellate Tribunal under sub-section (2) of Sec-
tion 4 of Karnataka Sales Tax Act, 1957 and the last extension of the D
period of his service was given by Government under clause (b) of
sub-rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957. The terms
and conditions of his service will be governed by the Mysore Sales Tax
Rules and not by the provisions of Mysore Civil Services Rules and it
cannot be contended by the appellant that Rule 64(6) ol:.the said
Mysore Sales Tax Rule, 1957 was not applicable to him. So the appel- E
lant is not eligible for superannuation pension after his relinquishment
of the post of non-official member of Sales Tax Tribunal on expiry of
the period of his service.
It has been further urged that Rule 64(6) of Mysore Sales Tax
Rules was inserted in 1964 at)d sub-rule (6) of Rule 64 was substituted F
f. on 7th April, 1971. This rule not being in existence at the time the
appellant was appointed as a member of the said Tribunal, the same
cannot be made applicable to the appellant and thereby he could not
be deprived of the benefit of superannuation pension as provided in
Mysore Civil Service Rules. This contention is per se without any
substance in as much as before the retirement of the appellant from G
service due to expiry of his period of service the said provisions of
sub-rule (6) of rule 64 of Mysore Sales Tax Rules was substituted in
place of original sub-rule 6 of Rule 64 and as such this rule applies to
the appellant and he is not entitled to get any superannuation pension.
The High Court has rightly held that according to Rule 64(6) the
appellant could not claim pensionary benefit. H
212 SUPREME COURT REPORTS [ 1990] 3 S.C.R.
•.I<
The appellaut next submitted that he became a Government
A
servant on being appointed as a non-official member of the Sales Tax ~
Appellate Tribunal and he was paid travelling allowance according to
Mysore Civil Service Rules, 1957 and so he is entitled to pension as
provided in the said Rules. As stated hereinbefore that the appellant
was appointed as a Member of the said Tribunal by the respondent
B State under Section 4(2) of the Sales Tax Act and though initially
appointed for a period of two years in 1958, his service was extended
periodically till Fe~ruary, 1972 under clause (b) of sub-rule (1) of Rule
64 of the Mysore STiles Tax Rules, 1957 by the Government of Mysore.
Therefore, the foremost question is whether in such circumstances the
Mysore Civil Service Rules apply to him. It is apropos to refer in this
connection sub-rule (2) of Rule 2 of Mysore Civil Service Rules, which ....
c specially provided that the said Rules shall not apply to persons for
whose appointment and other matters, special provisions are made by
or under any law for the time being in force or in any contract in regard
to the matters covered by such law or such contract. This Rule clearly
says that in cases where special provisions have been made by or under
D any law for the time being in force, the Mysore Service Rules will not
apply. In the instant case, Rule 64(6) of the Mysore Sales Tax Rules,
1957 clearly says that the non-official member of the Sales Tax
Tribunal will become ineligible for any pension, and as such provisions
relating to pension as provided in Mysore Civil Service Rules, 1957
will not apply. Furthermore, Rule 283 of the said Rues states that a
E superannuation pension is granted to a Government Servant who is
compelled by Rule to retire at a particular age. Rule 95 provides that
the date of compulsory retirement of a Government servant is the date
on which he attains the age of 55 years. It further provides that the
Government servant may be retained upto 60 years of age with the
sanction of Government. He must not be retained after the age of 60
F years. There is no rule under which a non-official member is to retire
on attaining a particular age. The appellant was appointed as a
member of the Tri!mnal for a period of two years initially and there-
after his tenure was extended periodically and he left the service as
non-official member of the Tribunal after he crossed the age of 61
years. There was no specific order that th.e appellant was due to retire
G at the age of 55 years. There is no rule for a non-official member to
retire at a particu\111'. age. Moreover by order No FD 1 CAT 69 dated
January 28, 1970 th~ Government sanctioned certain terms and condi-
tions of his appointment. the condition Nos. 2 and 5 are as hereunder:
"(2) The terms of appointment shall be one year with
H effect from 9th December, 1969.
T. RAMAKRISHNIAH v. STATE. OF KARNATAKA [RAY, l.] 213
A
(5) He is permitted to take up the audit of accounts of any
person, institution, firm or body of persons without pre-
judice to his official duties as a Member of the Tribunal and B
the person, institution, firm or body of persons concerned
is not and is not likely to be liable to Sales Tax, Agri-
cultural Income Tax or Entertainment Tax."
The appointment of the appellant is periodical and not upto a
maximum age nor it is a whole-time service but a part-time one and the
appellant was permitted to take up audit of any person, firm, institu- c
tion etc. on certain restrictions. A Government servant has to render
whole time service. Therefore, considering all these aspects it has been
found by the High Court that the Mysore Civil Service Rules, 1957 do
not apply to the appellant and as such he is not eligible for superannua-
tion pension. We do not find any infirmity in the judgment of the High D
Court which is unexceptionable.
We, therefore, uphold the judgment of the High Court, dismiss
the appeal without any order as to costs.
N.P.V. Appeal dismissed.
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