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Case Number

L.P.A No. 165 of 1983

Advocates

Mr. Deepak Agnihotri Advocate.
Mr. M.R. Agnihotri
Sr. Advocate
Mr. A.S. Sandhu
Addl. A.G.
Punjab.

Judges

Rajendra Nath Mittal
M.M Punchhi, JJ.

Acts

ARTICLE 310 CONSTITUTION OF INDIA
provision of rule 1.3 of the Punjab Civil Services Rules,
rules 3.8 and 3.12 of the Punjab Civil Services Rules
rules 3.12 of the Punjab Civil Services Rules,
provisions of the Punjab Civil Services Rules
rule 3.12 of the Punjab Civil Services Rules
rule 1.3 of the Punjab Civil Services Rules
ARTICLE 309 CONSTITUTION OF INDIA
Punjab Civil Services Rules. No rules
rule 1.4 of the said Rules (same part)
Punjab Civil Services Rules
Rule 3.12
Rule 3.8

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The opinion consolidates two matters for common disposal: Letters Patent Appeal No. 165 of 1983 (D.N. Rampal) and Civil Writ Petition No. 1068 of 1983 (Mohinder Pal Singh Gill). Both concern claims to pension and related retirement benefits by persons who served as Assistant Advocate General(s) in the Office of the Advocate General, Punjab.

Rampal:

Appointed Assistant Advocate General on 17 July 1967 on probation as a whole-time Government servant; appointment letter stated that "in the matter of leave and traveling allowance etc., the Punjab Civil Services Rules will be applicable."
Confirmed effective 17 July 1968; the State later attempted to withdraw that confirmation but the Court held Rampal was substantively appointed against a permanent post (res judicata). Rampal was later temporarily promoted to Deputy Advocate General. He retired on attaining superannuation on 31 May 1978 and claimed pension and gratuity; the State denied entitlement and he obtained relief from a Single Judge on 23 November 1982. The State appealed (Letters Patent Appeal No. 165 of 1983).

Gill:

Appointed Assistant Advocate General on 17 September 1969 as a whole-time Government employee but initially described as temporary and contractual in the appointment terms. The terms included that leave and traveling allowances would be governed by the Punjab Civil Services Rules.
Some contractual clauses (including clauses denying other benefits and house rent provision) were later deleted and replaced with allowances. He was temporarily promoted to Deputy Advocate General on 21 June 1978. On 28 September 1981 the Government issued a confirmation order backdated to 31 May 1978 but added a clause stating this confirmation "will not entitle S. Gill to any pension, gratuity, encashment of leave etc." Gill attained superannuation on 30 September 1981 and his pension claim was denied; he challenged that denial by writ (Civil Writ Petition No. 1068 of 1983), which was heard together with Rampal's appeal.

Legal Issues Presented

Whether the appointment letters and subsequent service of the claimants (Rampal and Gill) brought them within the ambit of the Punjab Civil Services Rules so as to entitle them to pension and related retirement benefits.
Whether the services of Rampal and Gill were contractual in nature, thereby excluding the applicability of the Punjab Civil Services Rules (and pension) to their service.
Whether administrative acts (confirmation or orders purporting to deny pension after qualifying service was earned) could validly deprive a person of pension rights—including whether such retrospective or post-facto disentitlement violated principles of natural justice and relevant precedents.

Arguments of the Parties

State's Arguments

The services of both Rampal and Gill were contractual in nature; accordingly, pension entitlement depends on explicit terms of the contract and the Punjab Civil Services Rules would not apply in full.
In the absence of a clear stipulation in the appointment orders stating that the Civil Services Rules apply in their entirety, the entire body of Rules could not be automatically attracted.
Pension had not been reserved in the appointment letters or correspondence; therefore entitlement could not be claimed as of right.
Pension could not be granted merely because Rampal and Gill were allowed to retire; such retirement did not transform a contractual engagement into a pensionable service per se.
Reliance on the decision in V.P. Prashar (Civil Writ Petition No. 198 of 1982) to contend that the post(s) of Assistant Advocate General may be filled on contractual terms and that contractual appointments are permissible even against regular posts.

Claimants' (Rampal and Gill) Arguments

Rampal relied on an earlier judgment (D.N. Rampal v. State of Punjab, 1978 P.L.R. 498) holding that he was appointed substantively against a permanent post — a res judicata finding — and therefore entitled to pension under the Punjab Civil Services Rules.
Gill relied on the factual and legal parity with Rampal's case, pointed to deletion of contractual clauses in his appointment terms, and argued that his confirmation and long durated service established substantive and permanent employment qualifying him for pension under the Rules.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Punjab v. K.R. Erry and Sobhag Rai Meyta, 1972 Services Law Reporter 836	Pension can be regarded as a right akin to property (not a bounty); rejection of pension engages natural justice (audi alteram partem).	Used to support the proposition that pension must be construed beneficially and that denial of pension invokes natural justice considerations.
V.P. Prashar, Assistant Advocate General, Punjab, Chandigarh v. The State of Punjab (Civil Writ Petition No. 198 of 1982)	Recognised that the State may make contractual appointments to posts that are otherwise regular; rule 1.3 and rule 1.4 of Punjab Civil Services Rules permit special contractual provisions but require residual applicability of Rules where not addressed by contract.	The State relied on this decision to contend that Rampal and Gill were contractual appointees. The Court considered that decision but distinguished it on the facts and on the operation of rules (1.3 / 1.4) and other circumstances showing substantive service.
Bishundeo Mehta v. The State of Bihar, 1981 (3) Services Law Reporter 467 (Full Bench, Patna High Court)	Explained the coexistence of permanent and temporary posts, and that substantive appointments can be made even to temporary posts; clarified the nature of substantive versus temporary/probationary appointments.	The Court expressed respectful agreement with this explanation to help frame the understanding of "substantive appointment" in the present cases.
Baleshwar Dass v. State of U.P., (1980) 4 SCC 226 : AIR 1981 S.C. 41	A person is in substantive capacity when he holds a post for an indefinite or long duration; fixed connotations should not be attributed to expressions like "substantive capacity", "service" and "cadre".	The Court relied on Baleshwar Dass to conclude that both Rampal and Gill occupied substantive and permanent employment for the purposes of pension qualification under Rule 3.12.
Kamla Prasad v. The State of Bihar, 1981 (3) Services Law Reporter 717 (Division Bench, Patna High Court)	Supported the approach that substantive appointments are not strictly defined and can include long-duration appointments.	Cited as corroborative authority for the Court's understanding of what constitutes substantive appointment.
D.N. Rampal v. State of Punjab, 1978 P.L.R. 498	A prior inter partes judgment that held Rampal had been appointed substantively against a permanent post; operates as res judicata between the parties.	Treated as binding (res judicata) in the present appeal and used to dispose of the contractual-service contention against Rampal; it was a central basis for allowing Rampal's pension claim.

Court's Reasoning and Analysis

The Court's analysis proceeded in a sequence of legal and factual steps, applying statutory rules and cited authorities strictly as presented in the opinion:

The Court began with a general principle: pension provisions and similar rules are to be construed liberally in favour of employees so that benefits intended are not arbitrarily withheld. The Court referred to the treatment of pension as a right (citing State of Punjab v. K.R. Erry and Sobhag Rai Meyta) and that reasonable doubts should be resolved in favour of applicability of civil service rules.
The Court examined the relevant Rules of the Punjab Civil Services Rules: Rule 3.8 (service qualifies for pension from the date of first appointment unless special rule or contract provides otherwise) and Rule 3.12 (three conditions for pension qualification: service under Government; employment substantive and permanent; and service paid by Government). The Court found that in both cases the service was under the Government and paid by the Government, and, on the facts, substantive and of long duration.
Rampal's case: the Court held Rampal's prior litigation victory (reported decision) established as res judicata that he was substantively appointed against a permanent post. The Court concluded that allowing Rampal to retire and his promotion while in post showed integration into regular service; therefore Rules 3.8 and 3.12 applied and Rampal was entitled to pension. The Court also held that the appointment letter's reference to applicability of certain Civil Services Rules (e.g., leave and travel allowance) could be given a liberal, illustrative construction to include pension unless a specific exclusion appeared.
Gill's case: the Court examined Gill's appointment terms and the subsequent deletion of express contractual-denial clauses. The deletion of clause(s) that had expressly excluded other benefits was treated as removing the contractual bar. The Court relied on Rule 1.3 and the model agreement provisions (Volume I, Part II, Model agreement Forms) which require that agreements provide that in matters not covered by the agreement, the provisions of the Rules will apply. In the absence of an express negative clause, the Court held the contractual letter could be liberally construed to permit applicability of the Rules and thus pension.
The Court addressed the Government's attempt by an order dated 28 September 1981 to confirm Gill but simultaneously declare that the confirmation would not entitle him to pension etc. The Court treated that bifurcation as ineffective to defeat previously accrued pension rights: Gill already had qualifying service (ten years) by 21 June 1978 and had been allowed to continue and retire on superannuation. The Court found that the disentitling portion of the 28 September 1981 order operated later and was arbitrary, issued behind Gill's back, and violative of natural justice. The Court cited Baleshwar Dass as conflicting with such retrospective dis-entitlement.
On the question whether promotion to Deputy Advocate General constituted a break in service or a new contractual engagement disentitling Gill from pension, the Court found that the appointment to the higher post was, in substance, promotional and did not break the lien or service continuity; Gill remained salaried by the Government and substantively employed for pension purposes.
On the whole, the Court applied the relevant Rules, applied precedents about substantive appointment and natural justice, and construed contractual terms liberally (absent express exclusion) to hold that both individuals were entitled to pension under the Punjab Civil Services Rules.

Holding and Implications

Holding (core rulings):

Rampal: The Court affirmed the Single Judge's decision and held that Rampal was entitled to pension under the Punjab Civil Services Rules. Letters Patent Appeal No. 165 of 1983 is dismissed with costs.
Gill: The Court allowed Civil Writ Petition No. 1068 of 1983 in part, quashed that portion of the Government order dated 28 September 1981 (Annexure P. 3) which purported to disentitle Gill to pension, gratuity and encashment of leave, and directed respondents to release Gill's pensioner benefits forthwith. Gill was awarded costs.
Counsel-fee awarded in both cases: Rs. 500 each.

Implications:

The direct effect is that both Rampal and Gill were declared entitled to pensioner benefits and the Government was directed to release those benefits for Gill; Rampal's entitlement was affirmed.
The decision emphasizes that where a public servant has substantively occupied a permanent post, fulfilled qualifying service, and been treated in practice as a regular government servant (including confirmation, promotion and retirement), pension entitlement under the applicable Civil Services Rules cannot be negated by mere contractual labels or by subsequent administrative orders that attempt to operate retrospectively or behind the employee's back.
The opinion relies on and applies existing precedent and statutory rules; it does not purport to state that a new legal principle or broader precedent was being created beyond applying and distinguishing earlier authorities on the facts of these cases.

Disposition: Appeal dismissed (Rampal) and writ petition allowed in part (Gill); both claimants entitled to pension; costs and counsel-fees as recorded in the opinion.

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The State Of Punjab And Another () v. Shri D.N Rampal, Deputy Advocate General Punjab, Chandigarh ().

Madan Mohan Punchhi, J.:— General is the rule in the United States of America that a liberal construction be given to a pension statute, although Courts there never interpret such a statute to include persons not plainly within the legislative intent. (See American Jurisdiction, 2nd Edition, Volume 60, Page 881). We suppose same is the rule in this welfare State of ours though not expressly formulated by a judicial precedent of the highest Court. But, here the rule of liberal construction is sought to be extended to the terms of two appointment letters so as to read therein pensioner privileges. It is somewhat a titillating question but, as it would appear, it permeates the substratum of these two matters placed before us. They shall then, for purpose of convenience, be disposed of by a common judgment. Respective facts of each are as under:—

Letters Patent Appeal No. 165 of 1983:

2. Shri D.N Rampal respondent was appointed to the post of Assistant Advocate General, Punjab by the Punjab Government, vide order dated 17th July, 1967 (Annexure P. 3). He was to be on probation for one year, but as a whole-time Government servant. Inter alia, his appointment letter provided:—

“In the matter of (his) leave and traveling allowance etc., the Punjab Civil Services Rules will be applicable.”

2. His period of probation of one year expired successfully and he was confirmed on 4th January, 1969, with effect from 17th July, 1968. Later, a venture was made by the Government to withdraw his order of confirmation but this Court, on a writ petition preferred by him, scuttled that stop. This Court held that Rampal stood appointed substantively against a permanent post. The contention of the State that the appointment of Rampal was contractual was negative. Later, vide order (Annexure P. 7A) dated 5th December, 1975. Shri Rampal was promoted as a Deputy Advocate General, Punjab, though temporarily. In its terms and conditions, it was, however, mentioned that in the matter of leave and traveling allowances, he will be governed by the Punjab Civil Services Rules and that his services were contractual in nature and, as such, he will not be entitled to any other benefits except those mentioned in the terms and conditions. Vide order (Annexure P. 7) dated 26th May, 1978, Rampal was allowed to retire, after attaining the age of superannuation, on 31st May, 1978. On retirement, he laid claim to pension and gratuity. Vide order Annexure P. 8 dated 3rd August, 1981, the State Government informed him that he was not entitled to the payment of pension, gratuity etc. Aggrieved against the said order, he filed Civil Writ Petition No. 4241 of 1981 which was allowed by a learned Single Judge on 23rd November, 1982. It is against that decision that the present letters patent appeal has been filed.

Civil Writ Petition No. 1068 of 1983:

3. Shri Mohinder Pal Singh Gill was appointed Assistant Advocate General on 17th September, 1969 vide order Annexure P. 1. He was Page: 16to be a whole-time Government employee but his services were purely temporary. Out of his terms and conditions, the three relevant for our purposes are reproduced:—

“(v) In the matter of leave, and traveling allowances, they (he) will be governed by the Punjab Civil Services Rules.

(vi) No house rent will be admissible to them (him),

(vii) Their (his) services are contractual in nature and, as such, they (he) will not be entitled to any other benefit except those mentioned in their (his) terms and conditions”

4. On 12th April, 1970, vide order Annexure P. 5, conditions Nos. (vi) and (vii) afore-quoted were deleted from his appointment order and, instead, house rent allowance and dearness allowance were sanctioned to him. Vide order Annexure P. 2 dated 21st June, 1978, Shri Gill was temporarily promoted as Deputy Advocate General, Punjab. And then again it was mentioned therein that in the matter of leave and traveling allowance, he was to be governed by the Punjab Civil Services Rules and that his services were contractual in nature and, as such, he was not entitled to any other benefit except those mentioned in the terms and conditions. He was allowed, vide Annexure P. 4, to continue in service beyond the age of 55 years with effect from, 19th September, 1978. Persons appointed later than Gill as Assistant Advocate Generals were confirmed earlier though he had a long durated service. Aggrieved against the confirmation of those persons, he filed Civil Writ Petition, No. 3361 of 1980 on 20th September, 1980, in this Court. While its was pending, the Government on 28th September, 1981, passed order Annexure P. 3 confirming Shri Gill as Assistant Advocate General with effect from 31st May, 1978 In the same order it was added however:—

“This order will not entitle S. Gill to any pension, gratuity, encashment of leave etc.”

5. The writ petition was disposed of as in fructuous on 28th September, 1981, in view of the confirmation order. Shri Gill attained the age of superannuation on 30th September, 1981, just two days after passing of the order Annexure P. 3. On retirement, he laid claim for release of pension, gratuity etc. but his request qua pension was turned down. Aggrieved against such stance of the State, Shri Gill approached this Court by way of this petition and placed reliance on Rampal's case (supra). On admission of the writ petition, it was ordered to be heard with Letters Patent Appeal No. 165 of 1983. The defences adopted by the State in both the cases are in a sense, common. It is maintained by the State that the services of both Rampal and Gill were contractual in nature and, as such, the claim to pension lay only if the terms and conditions of the appointments permitted. Secondly, it was mentioned that, in the absence of a clear stipulation in the appointment orders about the total applicability of the Civil Services Rules, the entire body of Rules could not be automatically attracted. Thirdly, claim of pension had not been reserved in the appointment letters and correspondence. And fourthly, pension could not be given merely because Rampal aud Gill had been allowed to retire from service. Other defences raised being individual, would at appropriate stages, be noticed later on. Reliance was placed on a decision rendered by D.S Tewatia, J., in V.P Prashar, Assistant Advocate General, Punjab, Chandigarh v. The State of Punjab (Civil Page: 17Writ Petition No. 198 of 1982) on 22nd September, 1983, to contend that the post of an Assistant Advocate General in the Office of the Advocate General, Punjab, was contractual in nature.

6. In the first instance we deem it necessary to clear the vision with regard to the concept of pension and the essentials which qualify a civil servant to claim it as a retirement benefit under the lew. It is well known that pension serves a beneficial purpose, both to the public and to person who is to receive the pension. The purpose behind it is to reward faithful service by a pension allowance. That is the reason why such legislation is applied fairly and broadly so that benefits intended are not arbitrarily withheld. All reasonable doubts in that regard go in favour of the applicability of the Civil Services Rules, or such law, by liberal construction in favour of the employee. The right of a Government servant to receive pension under the Civil Services Rules was considered even as property, the rejection of which invoked the principle of natural justice audi alteram partem (see State of Punjab v. K.R Erry and Sobhag Rai Meyta, 1972 Services Law Reporter 836). In the said case, it was even negatived to be a bounty. It obviously is not even a reward. It can broadly be then described as a just allowance or stipend made in consideration of past services. And it is on this broad meaning, as it appears to us, that the term ‘pension’, though not defined, is used in the Punjab Civil Services Rules. How one qualifies for pension is to be noticed later.

7. It has been noticed in the V.P Prasher's case (supra) that there were seven posts of Assistant Advocate General in the office of the Advocate General, Punjab, and those posts were non-contractual. An argument was raised in that case that, since those posts were regular posts, and when pay scales thereof had been revised by the Government on the recommendation fof the Pay Commission, that implied that those were meant to be filled up by persons appointed on regular basis. The contention was by passed by holding that the State Government was not precluded from making a contractual appointment to a regular post. Support for the view was taken from the provision of rule 1.3 of the Punjab Civil Services Rules, Volume I, Part I, which is in the following terms:—

“1.3 When in the opinion of the competent authority, special provisions inconsistent with these rules are required with reference to any particular post or any conditions of service that authority may. notwithstanding anything otherwise contained in these rules, and subject to the provisions of clause (2) of Article 310 of the Constitution of India (see” Appendix I), provide agreement with the person appointed to such post for any matters in respect of which, in the opinion of that authority, special provisions are required to be made: Provided that in every agreement so made it shall be provided that in respect of any matter for which no provision has been made in the agreement, provisions of these rules shall apply.”

8. Support was also sought from rule 1.4 of the said Rules (same part) where-under it is provided that the Punjab Civil Services Rules shall not apply to any Government employee between whom and the Government, a specific contract or agreement subsists in respect of any matter dealt with in the rules to the extent up to which specific provisions is made in the Page: 18contract or agreement. Based on the aforesaid rules, the decision went against the petitioner in V.P Prashar's case (supra), for his services were held contractual. It is precisely on that ground now the learned Additional Advocate General has contended that the services of Rampal and Gill too were contractual in nature and, as such, the Punjab Civil Services Rules were not applicable, whereunder alone pension could be claimed as of right.

9. As was conceded before us, the seven posts of Assistant Advocate General in the office of the Advocate General, Punjab, are partly permanent end partly temporary. These may or may not formally form a cadre but thsy provide undoubtedly substantive employment. A full Bench of the Patna High Court in Bishundeo Mehta v. The State of Bihar, 1981 (3) Services Law Reporter 467, explained the phenomene like this:

“Both in the State Services as well as in Subordinate Services, a number of posts are permanent. Temporary posts are also created from time to time, which according to exigency of the services, may be made permanent at later stage. Appointments to permanent posts are sometimes on substantive basis, and in some cases on probation, officiating or temporary basis. The probationary and officiating appointments are of a temporary nature. Similarly, so far as the temporary posts are concerned, substantive appointments can be made and are, in fact, sometimes made even on temporary posts.”

10. This seems to us to be the correct position in law so far as substantive appointments are concerned and we are in respectful agreement with the view expressed. It was held in Baleshwar Dass v. State of U.P, (1980) 4 SCC 226 : A.I.R 1981 Supreme Court 41, that to appreciate the fiction used in the connection, it may well be said that a person is said to hold post in a substantive capacity when he holds it for an indefinite period, especially of long duration, in contradistinction to a person who holds it for definite or temporary period. Such also was the view of a Division Bench of the Patna High Court in Kamla Prasad v. The State of Bihar, 1981 (3) Services Law Reporter 717. The Supreme Court in Baleshwar Dass's case (supra) has also specifically ruled that fixed connotations to expressions like “substantive capacity”, ‘service’ and ‘cadre’, could not be attributed.

11. In the light of such judicial authority, rules 3.8 and 3.12 of the Punjab Civil Services Rules Volume II, making provision for pension, need now be noticed. Rule 3.8 provides that, unless it be otherwise provided by special rule or contract, the service of every Government employee begins to qualify for pension when he takes charge of the post to which he is first appointed. Thus, the time clock starts from the date of his initial appointment. Rule 3.12 provides three qualifications for pension. It says that the service of a Government employee does not qualify for pension unless it conforms to three conditions : (i) the service must be under Government; (ii) the employment must be substantive and permanent; and (iii) the service must be paid by Government. In the instant cases, concededly that service was under the Government, service was paid by the Government and the employment being long durated was substantive and permanent. Rampal. as said before, was confirmed as an Assistant Advocate General concededly against a permanent post of the Assistant Page: 19Advocate General. Similarly, Gill was confirmed from a back date as an Assistant Advocate General against a permanent post. Thus, both of them qualify for pension under the Punjab Civil Services Rules. No rules or Government order has been brought to our notice to suggest that the posts of Assistant Advocate General are non-pensionable. The point which still remains to be seen is whether the claims of pension are dead for Rampal and Gill under their initial terms of appointment and can their service bs treated as one under an agreement or contract excluding the applicability of the Punjab Civil Services.

12. So far as the case of Rampal is concerned, it presents no difficulty whatsoever, in the earlier case between him and the State, this Court negative the plea of the State that his services were contractual. That judgment being inter parties, reported as D.N Rampal v. State of Punjab, 1978 P.L.R 498, is res judicata. It was held therein that Rampal had been appointed substantively against a permanent post. He was promoted to the post of the Deputy Advocate General, the State treating the said post hierarchically promotional. He was even allowed to retire on attaining the age of superannuation. That incidence by itself showed that he was swept into regular service. And further, his initial terms of appointment, which governed his temporary service, outlived their utility. He thus became qualified for receiving pension, on his retirement, under rules 3.12 of the Punjab Civil Services Rules, Volume II, and was entitled thereunder to have his claim satisfied. In the alternative, even if it was not so, we see no reason why a liberal construction to his appointment letter be not made. Mention therein of the applicability of the Punjab Civil Services Rules regarding leave and traveling allowance etc., illustratively, was comprehensive enough to include pension as permissible under the Rules. In no way, could a restricted construction be put to such a term unless it was specifically stipulated therein that he was not entitled to claim pension. We are, for the aforesaid reasons, of the considered view that the learned Single Judge rightly allowed the claim of Rampal. If the services of Rampal were merely contractual, the contract had to be terminated or allowed to run out by efflux of time. In no case, could he be allowed to retire from service. The incidence that he was allowed to retire from service cuts at the very root of his post as a contractual. Thus, the Punjab Civil Services Rules were applicable to his case and, as such, he was entitled to pension on fruition of his service career.

13. So far as the Gill's case is concerned, it is noticeable that, though in the initial terms of appointment his services were termed as contractual specifically, yet the concerned clause (vi) as also clause (vii) were withdrawn, vide order Annexure P. 5. Clause (vii) alone had mentioned that he would not be entitled to any other benefits except those mentioned in the terms and conditions. By withdrawal thereof, the contractual stag seems to us to be pulled away. The mere fact that clause (v) was allowed to remain and there was no word ‘etc’, as was in Rampal's case, would to our mind make no difference. Only the matter of leave and traveling allowance was touched which was to be governed by the Punjab Civil Services Rules. No other matter was touched. Those terms, if at all, governed his case while he was a temporary employee. But his temporary service, on the face of it, was long darated. There was no specific stipulation that no other provisions of the Punjab Civil Services Rules would be applicable. Even if his appointment. Page: 20though not held as such, is taken to have been contractual, rule 1.3 of the Punjab Civil Services Rules Volume I, Part I, required that in every agreement made with reference to a post requiring special provisions inconsistent with rules, a provision shall be made that in respect of any matter for which no provision has been made therein, provisions of the rules shall apply. It is interesting to read in the Punjab Civil Services Rules, Volume I, Part II, Model agreement Forms I, II and III, each of which contains a stipulation to the effect, with suitable adaptations, that in respect of any matter for which no provision has been made in the agreement, the provisions of the Rules framed under Article 309 of the Constitution of India shall apply to the extent to which they are applicable to the service hereby provided for. These requirements of the Rules reinforce our view that, in the absence of a negative clause in the terms of employment, specially saying that the Civil Services Rules would not be applicable, we can and should liberally construe the contractual letter to spell that the Civil Services Rules were applicable and, hence, claim for pension by Gill was maintainable.

14. Besides the above view, in line with Rampal's case, we are of the view that Gill was allowed to continue in service after confirmation as an Assistant Advocate General and allowed to retire on attaining the age of superannuation. That was a normal incidence of regular service. We have been shown the official record. It is plain therefrom that Gill was confirmed against a permanent post of Assistant Advocate General. Had he merely to be on contractual basis, his services had to be terminated or ended in a different fashion than retirement. Pension being a natural consequence thereto, could not be withheld in his case too. However, it has been asserted by the learned Additional Advocate General that, vide order Annexure P. 3 whereby Gill was confirmed, it was specifically stated therein that the said order shall not entitle Gill to any pension, gratuity, encashment of leave etc. Bare-facedly, the order has two parts, one which confirms Gill as Assistant Advocate General takes effect from 31st May, 1978; and the other which says that this order will not entitle Gill to any pension etc., is effective from 28th September, 1981, the day on which it was passed. These state of putative affairs have squally to be taken to the point on 21st June, 1978, the day when Gill became Deputy Advocate General. He had by then had already put in ten years qualifying service entitling him to pension. Having earned that right, the second part of the order disentitling him to pension etc. operating from 28th September, 1981, was violative of the rules of natural justice, as it was passed behind his back and is an order in direct conflict with Baleshwar Dass's case, (1980) 4 SCC 226 : A.I.R 1981 S.C 41 (supra). Thus, the second part of the order whereby Gill was disentitled to any pension, gratuity, encashment of leave etc., is quashed not only for the reasons aforementioned but also on being arbitrary and bereft of any reason.

15. The learned Additional Advocate General maintained that with effect from 21st June, 1978, Gill was in a new service inasmuch as he had accepted a contractual appointment as Deputy Advocate General, the terms of employment of which specifically said that the employment was contractual in nature. In other words, it was maintained that Gill had left the job of the Assistant Advocate General and that incidence by its elf disentitled him to pension. We are not impressed by this argument There was the departmental precedent of Rampal in the office of the Page: 21Advocate General when he was promoted from the post of Assistant Advocate General to that of Deputy Advocate General. On that precedent, one could safely assume that the appointment of Gill to the post of the Deputy Advocate General, though couched in the language of fresh appointment, was in essence and reality a promotion without causing any break in service. In any case, his lien to the post of the Assistant Advocate General did not vanish by that appointment. In either situation, he remained in the service of the Government, was paid by the Government, and his employment, substantive and permanent as Assistant Advocate General, remained subsisting under Rule 3.12 of the Punjab Civil Services Rules Volume I, Chapter III. He was allowed to retire when Deputy Advocate General while in Government service. Thus we are of the considered view that Gill was entitled to pension under the Punjab Civil Services Rules. In summing up, we hold that both Rampal and Gill were entitled to pensioner benefits. Affirming the view of the learned single Judge, we dismiss Letters Patent Appeal No. 165 of 1983 with costs. We also allow Civil Writ Petition No. 1068 of 1983, partially quashing that part of the Govt. order dated 28th September, 1981 (Annexure P. 3) whereunder Gill was ordered to be denied pension etc., and direct the respondents to release Gill's pensioner benefits forthwith. Gill shall have his costs. Counsel-fee in both the cases Rs. 500 each.

Rajendra Nath Mittal, J.:— I agree.

16. Appeal dismissed.

The State Of Punjab ... v. Shri D.N Rampal, Dep...