MADHUKARversusSTATE OF MAHARASHTRA AND ORS.

                         [2014] 4 S.C.R. 832


A                           MADHUKAR
                                  v.
              STATE OF MAHARASHTRA AND ORS.
                 (Civil Appeal No. 4470 of 2014)
                           APRIL 11, 2014
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                   KURIAN JOSEPH, JJ.]

          Maharashtra Civil Services (Pension) Rules, 1982:
C   rr.46(4), 48(3) - Pension - Fixation of - Qualifying period -
    Calculation of - As per the Resolution dated 11. 3. 1992 issued
    by Government of Maharashtra, pension scheme shall also
    be made applicable to teaching and non-teaching employees
    in non-agricultural universities and non-government colleges
o   affiliated to it from 1. 10. 1982 - Para 3 of Resolution dated
    11. 3. 1992 states that the benefit of previous service by
    condoning break in service can be granted only if there is
    compliance of conditions contained in r.48(1) of Rules, 1982
    - As per r.48(3) in the absence of a specific indication to the
E   contrary in the service record, an interruption between two
    spells of civil service rendered by a Government servant
    under Government, shall be treated as automatically
    condoned and the pre-interruption services to be treated as
    qualifying service - In the instant case, appellant resigned
F   from the Government service on 18. 07. 1960 and joined the
    post of Lecturer in Hislop College on the same day i.e.
    18. 07. 1960 - He retired from the Hislop College on
    24.05.1983 i.e. after 1.10.1982 - Therefore, the appellant is
    entitled to the benefits in terms of Resolution dated 11.3.1992
    - Higher authorities recommended to add the earlier period
G   of service for determination of pensionary benefit - In view of
    the provisions of r. 48 r/w Government Resolution dated
    11. 3. 1992, the appellant is entitled for counting the service
    earlier rendered between 21. 06. 1950 to 17. 07. 1960 for

H                                832
  MADHUKAR v. STATE OF MAHARASHTRA AND                   833
                   ORS.
determination of pension - Government Resolution No.NGC         A
128411061501994184)NS-4 dated 11.3.1992.

    Service law: Pension - Held: Cause of action for grant of
pension arises every month.

     The appellant worked in various departments for the B
period 21.6.1950 to 18.7.1960. During the period
11.12.1958 to 17.7.1960 he was posted as Social
Education organiser when he tendered resignation from
the service. After its acceptance, on 18.7.1960, he joined
Hislop College as lecturer in absence of any refusal of C
letter of resignation. The Maharashtra Civil Services
(Pension) Rules, 1982 were not applicable to the teaching
and non-teaching employees of the colleges. On
24.5.1983, the appellant retired from service as Assistant
Professor from Hislop College. In between 1983 and 1986 D
pension of the appellant was finalized but the service of
the appellant from 21.6.1950to18.7.1960 was not counted.
The Government of Maharashtra by Government
Resolution No.NGC 1284/106150/994/84)/VS-4 dated
11.3.1992 decided to count past government service for E
computation of pension in respect of all employees
retiring on or after 1.10.1982. In view of such Resolution,
though the appellant was entitled to get his past services
counted for fixation of pension, the same were not
considered. On 30.11.2005, respondent No.4, the F
Administrative Officer, Higher Education recommended
the appellant's claim for refixation of pension to the
respondent No.5, Senior Accounts Officer. Respondent
No.5 in turn rejected the said recommendation. On a
representation made by the appellant, the Joint Director G
by his letter dated 30.12.2005 requested respondent No.2,
the Director, Higher and Technical Education, Pune to
take into consideration the services rendered by the
appellant between 21.6.1950 and 18. 7 .1960 for
computation of pension in view of Government H
    834     SUPREME COURT REPORTS               [2014] 4 S.C.R.


A Resolution dated 11.03.1992. In spite of such
  recommendation made by the Joint Director, no action
  was taken. The appellant then preferred the writ petition
  before the High Court which was dismissed. Hence the
  instant appeal.
B
      Allowing the appeal, the court

         Held: 1. In the case in hand, the appellant has claimed
    fixation of pension by counting the earlier period of
    service in the light of Government Resolution dated
C   11.3.1992. No such claim was made under the
    Maharashtra Civil Services (Pension) Rules, 1982. The
    Government of Maharashtra, from its Education and
    Employment Department issued Resolution dated
    11.3.1992. Referring to its earlier Resolution No. NGC
D   1283/(865) vs-4 dated 21. 7 .1983 it was informed that
    pension scheme shall also be made applicable to
    teaching and non-teaching employees in non-agricultural
    universities and non-government colleges affiliated to it
    from 1.10.1982. For calculation of qualifying service under
E   the said Resolution, the services rendered in grant-in-aid
    non-government colleges/higher secondary schools/
    secondary schools are also to be taken into account. In
    case, the employee working on the post of Lecturer/
    Professor in the colleges affiliated to it has accepted the
F   appointment on the post of Lecturer/Professor in
    Government service, in that event, his service on the post
    of Lecturer/Professor in non-agricultural Universities and
    non-government colleges affiliated to the Universities are
    to be counted for determination of pension under
G   Government Resolution No. SCT-1584/ (1567) Admn.-2
    dated 17.10.1986. [Paras 7, 8) [839-B-F]

       2. From the bare reading of Resolution dated
  11.3.1992, it is clear that the Resolution is applicable to
  the employees retiring on or after 1.10.1982. Admittedly,
H the appellant retired from the Hislop College on
  MADHUKAR v. STATE OF MAHARASHTRA AND                  835
                   ORS.
24.05.1983 i.e. after 1.10.1982; therefore the appellant is    A
entitled to the benefits in terms of Resolution dated
11.3.1992. Rule 46 of the Rules, 1982 relates to forfeiture
of service on resignation. Under Rule 46(1) "resignation
from a service or a post entails forfeiture of past
services". Sub rule (4) of Rule 46 deals with the cases        B
where the resignation shall not entail forfeiture of past
services. But the said Rule 46 is not applicable to the
appellant as he neither claimed the benefit of pension
under the said Rules nor he was paid pension in terms
of the said Rules. As per paragraph 3 of Resolution dated      c
11.03.1992, the benefit of previous service by condoning
break in service can be granted only if there is compliance
of conditions contained in Rule 48(1) of the Rules, 1982.
As per Rule 48(3) in the absence of a specific indication
to the contrary in the service record, an interruption         0
between two spells of civil service rendered by a
Government servant under Government, shall be treated
as automatically condoned and the pre-interruption
services to be treated as qualifying service. [Paras 9 to
12] [840-D-G; 841-G]
                                                               E
    3. In the case of the appellant, there is notional break
in service. He resigned from the Government service on
18.07.1960 and joined the post of Lecturer in Hislop
College, Nagpur on the same day i.e. 18.07.1960. Further,
Higher authorities have recommended to add the earlier         F
period of service for determination of pensionary benefit.
In absence of a specific direction to the contrary in the
service record, the. interruption between two spells of
service rendered by the appellant under the Government
shall be treated as automatically condoned; the earlier        G
service rendered by appellant is to be counted towards
qualifying service. In view of the provisions of Rule 48
read with Government Resolution dated 11.3.1992, the
appellant is entitled for counting the service earlier
rendered between 21.06.1950 to 17.07.1960 for                  H
    836      SUPREME COURT REPORTS              [2014] 4 S.C.R.


A determination of pension. The High Court wrongly held
  that the appellant is not entitled to get the benefits of his
  past services in view of Rule 46(1) of the Rules, 1982,
  which is not applicable in the case of the appellant. The
  High Court also erred in rejecting the claim on the ground
B of delay and failed to .notice that the cause of action for
  grant of pension arises every month. In the present case
  what we find is that the appellant made representation at
  an appropriate stage and such request was accepted by
  respondent No.4, the Administrative Officer, Higher
c Education, Nagpur who recommended respondent No.5,
  the Senior Accounts Officer, Accountant General-II,
  Maharashtra to count the period and to take into
  consideration the fact that the appellant has rendered
  more than 33 years of service. Even the Joint Director by
D his letter dated 30.12.5005 recommended to respondent
  No.2, Director, Higher and Technical Education, Pune to
  count the period from 21.06.1950 to 18.07.1960. Thereby,
  the appellant also explained the delay in moving the High
  Court. [paras 13, 14) [841-H; 842-A-G]
E       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4470 of 2014.
       From the Judgment and Order dated 23.04.2012 of the
  Division Bench of the High Court of Judicature at Bombay,
F Nagpur Bench in WP No. 4736 of 2011.
        Sudheer Voditel, Rameshwar Prasad Goyal for the
    Appellant.
      Dr. Rajeev 8. Masodkar, Aniruddha P. Mayee for the
G Respondents.
          The Judgment of the Court was delivered by
        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
    granted.
H
   MADHUKAR v. STATE OF MAHARASHTRA AND                    837
   ORS. [SUDHANSU JYOTI MUKHOPADHAYA, J.)
     2. This appeal has been preferred by the appellant against   A
the judgment and order dated 23.04.2012 passed by the
Division Bench of High Court of Judicature at Bombay, Nagpur
Bench, Nagpur in Writ Petition No. 4736 of 2011. By the
impugned judgment and order, the High Court refused to grant
pension to the appellant and dismissed the writ petition. Apart   B
from the ground of delay, the High Court dismissed the case
on merit on the ground that the resignation in the previous
service was not tendered by appellant with prior permission.

      3. The appellant was appointed on 21.6.1950 in the Food
 Department at Dongargaon in District of Durg; the then 'Madhya   C
 Prant Warhad State' and worked till 20.12.1954. Thereafter,
 he was appointed as Assistant Master, Upper Division in
 Normal School at Kondagaon, District Jagdalpur where he
functioned between 22.12.1954 and 19.8.1956. Since his
 posting on 20.8.1956 he worked as Assistant Direct Inspector     D
of School, Nagpur where he continued upto 9.10.1956.
Thereafter, he was posted as Superintendant, Chokhamela
 Hostel, Nagpur from 10.10.1956 to 26.06.1957. Between
29.06.1957 and 30.04.1958 he underwent B.T. Training at
Akola held by Education Department. Thereafter, the appellant     E
was posted as Superintendent, Government Chokhamela
Hostel, Nagpur on 1.5.1958 where he continued up to
10.12.1958. He was posted as Social Education Organiser
at Mauda, District Nagpur between 11.12.1958 to 17.7.1960
when he tendered a resignation from the service. The              F
resignation was accepted on 18.07.1960 by the Block
Development Officer and it was forwarded to the Deputy
Director of Education. After its acceptance, on 18.07.1960, he
joined Hislop College, Nagpur as Lecturer in absence of any
refusal of letter of resignation .                                G

     4. The Maharashtra Civil Services (Pension) Rules, 1982
(hereinafter referred to as, "the Rules, 1982") were not
applicable to the teaching and non-teaching employees oft.he
colleges. On 24.5.1983, the appellant retired from service as     H
    838     SUPREME COURT REPORTS                [2014] 4 S.C.R.


A Assistant Professor (Marathi) from Hislop College, Nagpur. In
  between 1983 and 1986 pension of the appellant was finalized
  but the service of the appellant from 21.6.1950 to 18.7.1960
  was not counted. The Government of Maharashtra by
  Government Resolution No.NGC 1284/106150/ 994/84)NS-4
B dated 11.3.1992 decided to count past government service for
  computation of pension in respect of all employees retiring on
  or after 1.10.1982. In view of such Resolution, though the
  appellant was entitled to get his past services counted for
  fixation of pension, the same were not considered. Being
c aggrieved, the appellant made representations followed by
  reminder dated 10.2.2000. On 30.11.2005, respondent No.4,
  the Administrative Officer, Higher Education, Nagpur Division,
  Nagpur recommended the appellant's claim for refixation of
  pension to the respondent No.5, Senior Accounts Officer,
  Accountant General-II, Nagpur, Maharashtra. Respondent No.5
0
  in turn rejected the said recommendation. On a representation
  made by the appellant, the Joint Director by his letter dated
  30.12.2005 requested respondent No.2, the Director, Higher
  and Technical Education, Pune to take into consideration the
  services rendered by the appellant between 21.6.1950 and
E 18.7.1960 for computation of pension in view of Government
  Resolution dated 11.03.1992. In spite of such recommendation
  made by the Joint Director, no action was taken. The appellant
  then preferred the writ petition before the High Court which was
  dismissed by the impugned judgment and order dated
F 23.04.2012.

       5. Learned counsel for the appellant placed reliance on
  Rule 48(3) of the Rules, 1982 and submitted that an interruption
  between two spells one rendered under the Government and
G other under the College should be treated as automatically
  condoned. Further, according to him, the appellant is entitled
  for counting the earlier period from 21.06.1950 to 18.07.1960
  for re-fixation of pension in terms of Government Resolution
  dated 11.3.1992.
H
  MADHUKAR v. STATE OF MAHARASHTRA AND                      839
  ORS. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     6. On the other hand, according to respondents as per Rule    A
46(1) of the Rules, 1982 the service of the appellant prior to
19.07 .1960 were liable to be forfeited; as resignation entails
forfeiture of past service.

     7. In the case in hand, the appellant has claimed fixation 8
of pension by counting the earlier period of service in the light-
of Government Resolution dated 11.3.1992. No such claim has
been made under Rules, 1982.

     8. The Government of Maharashtra, from its Education and
Employment Department issued Resolution dated 11.3.1992.           C
Referring to its earlier Resolution No. NGC 1283/(865) vs-4
dated 21.7.1983 it was infomred that pension scheme shall
also be made applicable to teaching and non-teaching
employees in non-agricultural universities and non-government
colleges affiliated to it from 1.10.1982. For calculation of       D
qualifying service under the said Resolution, the services
rendered in grant-in-aid non-government colleges/higher.
secondary schools/secondary schools are also to be taken into
account. In case, the employee working on the post of Lecturer/
Professor in the colleges affiliated to it has accepted the        E
appointment on the post of Lecturer/Professor in Government
service, in that event, his service on the post of Lecturer/
Professor in non-agricultural Universities and non-government
colleges affiliated to the Universities are to be counted for
determination of pension under Government Resolution No.           F
SCT-1584/(1567) Admn.-2 dated 17.10.1986.

     Considering the above aspects, the Government by
resolution dated 11.3.1992 decided as follows:

    "3). Now the government issues the Order that, the             G
    previous services of teaching/non-teaching employees
    retiring from non-agricultural universities and grant-in-aid
    non-government affiliated colleges rendered on any of post
    in government service, to which the Government Pension
    Scheme is applicable, may be taken into account for the        H
     840       SUPREME COURT REPORTS                  [2014] 4 S.C.R.


 A         purpose of pension. Moreover, previous services of
           employees retiring from government posts to which the
           Government Pension Scheme is applicable, rendered in
           on teaching/non-teaching posts in non-agricultural
           universities and grant-in-aid non-government colleges
 B         affiliated to it, may be taken into account for the purpose
           of pension. This Order will be applicable to the employees
           retiring on and after 1.10.1982. However, the benefit of
           previous service by condoning break in service will be
           granted only if there is compliance of Conditions contained
 c         in Rule 48(1) of Maharashtra Civil Services (Pension)
           Rules."

           From the bare reading of the Resolution dated 11.3.1992,
     it is clear that the Resolution is applicable to the employees
     retiring on or after 1.10.1982.
 D
           9. Admittedly, the appellant retired from the Hislop College
     on 24.05.1983 i.e. after 1.10.1982; therefore, the appellant is
     entitled to the benefits in terms of Resolution dated 11.3.1992.

 E      10. Rule 46 of the Rules, 1982 relates to forfeiture of
   service on resignation. Under Rule 46(1) "resignation from a
   service or a post entails forfeiture of past services". Sub rule
   (4) of Rule 46 deals with the cases where the resignation shall
   not entail forfeiture of past services. But the said Rule 46 is
 F not applicable to the appellant as he neither claimed the benefit
   of pension under the said Rules nor he was paid pension in
   terms of the said Rules.

         11. As per paragraph 3 of Resolution dated 11.03.1992
    the benefit of previous service by condoning break in service
. G can be granted only if there is compliance of conditions
    contained in Rule 48(1) of the Rules, 1982, which reads as
    follows:-

           "48. Condonation of interruption in service.-(1)The
           appointing authority may, by order, condone interruptions
 H
  MADHUKAR v. STATE OF MAHARASHTRA AND                           841
  ORS. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     in the service of a Government servant:                            A

     Provided that-

     (a) the interruptions have been caused by reasons beyond
     the control of the Government servant;
                                                                        B
     (b) the total service pensionary benefit in respect of which
     will be lost, is not less than five years duration, excluding
     one or two interruptions, if any; and

     (c) the interruption including two or more interruptions, if       C
     any, does not exceed one year.

     (2) The period of interruption condoned under sub-rule (1)
     shall not count as qualifying service.

     (3) In the absence of a specific indication to the contrary        o
     in the service record, an interruption between two spells
     of civil service rendered by a Government servant under
     Government, shall be treated as automatically condoned
     and the pre-interruption service treated as qualifying
     ~~.                                                                E
    (4) Nothing in sub-rule (3) shall apply to interruption caused
    by resignation, dismissal or removal from service or for
    participation in a strike.

     (5) The period of interruption referred to in sub-rule (3) shall   F
     not count as qualifying service."

     12. As per Rule 48 (3) in the absence of a specific
indication to the contrary in the service record, an interruption
between two spells of civil service rendered by a Government            G
servant under Government, shall be treated as automatically
condoned and the pre-interruption services to be treated as
qualifying service.

    13. In the case of the appellant, there is notional break in
service. He resigned from the Government service on                     H
    842     SUPREME COURT REPORTS                 (2014] 4 S.C.R.


A 18.07.1960 and joined the post of Lecturer in Hislop College,
  Nagpur on the same day i.e. 18.07 .1960. Further, higher
  authorities have recommended to add the earlier period of
  service for determination of pensionary benefit. Being so, in
  absence of a specific direction to the contrary in the service
B record, the interruption between two spells of service rendered
  by the appellant under the Government shall be treated as
  automatically condoned; the earlier service rendered by
  appellant is to be counted towards qualifying service.

       14. In view of the provisions of Rule 48 read with
C Government Resolution dated 11.3.1992, we hold that the
  appellant is entitled for counting the service earlier rendered
  between 21.06.1950 to 17.07.1960 for determination of
  pension. The High Court failed to notice the relevant provisions
  and wrongly held that the appellant is not entitled to get the
D benefits of his past services in view of Rule 46(1) of the Rules,
  1982, which is not applicable in the case of the appellant. The
  High Court also erred in rejecting the claim on the ground of
  delay and failed to notice that the cause of action for grant of
  pension arises every month. In the present case what we find
E is that the appellant made representation at an appropriate
  stage and such request was accepted by respondent No.4, the
  Administrative Officer, Higher Education, Nagpur who
  recommended respondent No.5, the Senior Accounts Officer,
  Accountant General-II, Maharashtra to count the period and to
F take into consideration the fact that the appellant has rendered
  more than 33 years of service. Even the Joint Director by his
  letter dated 30.12.2005 recommended to respondent No.2,
  Director, Higher and Technical Education, Pune to count the
  period from 21.06.1950 to 18.07.1960. Thereby, the appellant
G also explained the delay in moving the High Court.

        15. For the reasons aforesaid, we set aside the impugned
    judgment and order dated 23.04.2012 passed by the Division
    Bench of High Court of Judicature at Bombay, Nagpur Bench,
    Nagpur and direct the respondents to count the period of
H
  MADHUKAR v. STATE OF MAHARASHTRA AND                    843
  ORS. (SUDHANSU JYOTI MUKHOPADHAYA, J.]
service rendered by the appellant from 21. 06.1950 to            A
18.07.1960 for the purpose of computation of pension and pay
the consequential benefits including arrears of pension within
three months from the date of this judgment. On failure, the
respondents shall be liable to pay interest @ of 8% from the
date of filing of the writ petition till the amount is paid.     B

     16. The appeal is allowed with aforesaid observations and
directions. No costs.

D.G.                                         Appeal allowed.