Brahma Singh vs Union Of India on 5 February, 2020


Supreme Court of India

Brahma Singh vs Union Of India on 5 February, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Deepak Gupta

                                                                 NON­REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                    CIVIL ORIGINAL JURISDICTION

                               WRIT PETITION (CIVIL) NO. 59 OF 2019


         BRAHMA SINGH AND OTHERS                                   …PETITIONER(S)

                                                 Versus

         UNION OF INDIA AND OTHERS                               …RESPONDENT(S)




                                           JUDGMENT

DEEPAK GUPTA, J.

The short issue involved in this case is whether the service

rendered by the petitioners in the Supreme Court Legal Aid

Committee and Supreme Court Legal Services Committee prior to

the promulgation of the Supreme Court Legal Services Committee

Rules, 2000 is to be counted while calculating their qualifying

service for determination of pension.

2. The petitioners are serving and retired employees of the
Signature Not Verified

Supreme Court Legal Services Committee in various capacities.
Digitally signed by
CHARANJEET KAUR
Date: 2020.02.06
12:55:47 IST
Reason:

They claim that the entire service rendered by them should be

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treated as qualifying service for the purpose of fixing the retiral

benefits. The respondent no.1­Union of India has rejected their

claim on 11.09.2017 and 08.12.2017, leading to the filing of this

petition. The case of the petitioners is that their claim is squarely

covered by the judgment already rendered in their favour in Writ

Petition (Civil) No.267 of 2008 wherein considering the effect of

the Rules which are now under consideration, their entire service

was taken into consideration for fixing the pay and allowances

and they were given complete benefit of Rule 6 of The Supreme

Court Legal Services Committee Rules,2000. According to the

Union of India, the benefit can be given only from the date of

promulgation of the Rules and not prior to that. Some of the

petitioners joined in the Supreme Court Legal Aid Committee as

far back as in 1981 and the service not taken into consideration

is more than 18 years and 8 months.

3. The Supreme Court Legal Aid Committee was constituted by

the Ministry of Law & Justice under executive instructions on

10.07.1981. Para 7 of the said instructions provides that the

Supreme Court Legal Aid Committee shall be entitled to make

necessary arrangements for staff and other facilities necessary for

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the discharge of its functions. These instructions were issued

with the concurrence of the Ministry of Finance, Department of

Expenditure. Therefore, the posts were sanctioned posts though

no rules were framed for filling up the same. Pursuant to these

instructions, the petitioners were appointed in different

capacities in the Supreme Court Legal Aid Committee. In 1987,

the Parliament enacted the Legal Services Authorities Act, 1987.

The National Legal Services Authority was constituted under

Section 3. Sub­section (5) and (6) of Section 3 provide that the

Central Authority can appoint officers and other employees. The

appointment of such employees and their pay and allowances are

to be prescribed by the Central Government in consultation with

the Chief Justice of India. Section 3A of the Legal Services

Authorities Act provides for the constitution of the Supreme

Court Legal Services Committee and sub­section (5) and (6) are

identical to sub­section (5) and (6) of Section 3. Rule 9 of The

National Legal Services Authority Rules, 1995 provides that the

conditions of service and salary and allowances of officers and

other employees of the Central Authority shall be at par with the

Central Government employees holding equivalent posts and it

further provides that in all matters like age of retirement, pay

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and allowances, the rules applicable to the employees of the

Central Government shall also apply to the employees of the

Central Authority. The Central Authority framed the Supreme

Court Legal Services Committee Regulations, 1996 and

Regulations 3(1) and 3(2) thereof read as follows;

“3. General effect of vesting. – On and from the date of
commencement of these regulations, ­
(1)All the assets, liabilities, rights, title and interest of the
erstwhile Supreme Court Legal Aid Committee stand
transferred to, and vest in, Supreme Court Legal Services
Committee;

3(2) The staff, who have been serving under the
erstwhile Supreme Court Legal Aid Committee shall be
deemed to be working for the Supreme Court Legal
Services Committee;

xxx xxx xxx”

4. The Supreme Court Legal Services Committee Rules, 2000

were framed by the Central Government in consultation with the

Chief Justice of India and came into effect on 03.07.2000. Rule 6

is relevant for our purpose and reads as follows:

“6. The conditions of service and the salary and
allowances payable to the officers and employees of
the Supreme Court Legal Services Committee under
sub­section (6) of section 3A.­(1) The officers and other
employees of the Supreme Court Legal Services
Committee shall be entitled to draw pay and allowances
in the scale of pay indicated against each post in the
Schedule to these rules or at par with the Central
Government employees holding equivalent posts.

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(2)In all matters like age of retirement, pay and
allowances, benefits and entitlements and disciplinary
matters, the officers and employees of the Supreme Court
Legal Services Committee shall be governed by the
Central Government rules as are applicable to persons
holding equivalent posts.

(3)The officers and other employees of the Supreme Court
Legal Services Committee shall be entitled to such other
facilities and benefits as may be notified by the Central
Government from time to time.

Explanation. – The words “benefits”, “allowances”,
“entitlements”, “facilities” occurring in these rules shall
be deemed to include, the entitlement to gratuity,
provident fund, housing, medical benefits, pension, group
insurance, and all other benefits as are available to
employees of the Central Government holding equivalent
posts.”

Sub­rule (2) of Rule 6 of the Supreme Court Legal Services

Committee Rules clearly states that in all matters like age of

retirement, pay and allowances and benefits on retirement the

officers and employees of the Supreme Court Legal Services

Committee shall be governed by the Central Government rules.

5. Earlier, the petitioners had approached this Court by filing

Writ Petition (Civil) No. 267 of 2008 whereby they had claimed

that they were entitled to pay and allowances and other benefits

under Rule 6 quoted hereinabove. That writ petition was allowed

and the respondents were directed to give full benefit of Rule 6 of

the Supreme Court Legal Services Committee Rules by fixing the

pay and allowances of the petitioners and other similarly situated

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employees in the pay scales specified in the Schedule appended

to the Rules or at par with the Central Government employees

holding equivalent posts. They were also directed to pay arrears

from the date of promulgation of the Rules i.e. 03.07.2000.

6. The Union of India has raised a two­fold submission. It is

first submitted that the service of the petitioners rendered prior

to 03.07.2000 cannot be taken into consideration while

quantifying the qualifying service or determining their retiral

benefits. It is secondly contended that this plea could have been

taken in the earlier writ petition and, in fact, such a plea was

raised but finally the Court did not grant this relief and,

therefore, they cannot file the second petition.

7. From the facts narrated above, it is apparent that the

Supreme Court Legal Aid Committee was created under

administrative instructions of the Government. Thereafter, the

Legal Services Authorities Act, 1987 came into force. The

services of the officers and employees were governed by Rule 3A

and after 2000, they are governed by the Supreme Court Legal

Services Committee Regulations, 2000. They have been

rendering service uninterruptedly as employees of the Supreme

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Court Legal Services Committee and no distinction can be made

between the service prior to 03.07.2000 and the service rendered

thereafter. The petitioners have been regular employees of the

Supreme Court Legal Services Committee and their entire service

must be counted for determining their pension and other retiral

benefits. This entire service is to be treated as their qualifying

service in accordance with the Rules.

8. As far as the second submission made on behalf of the

Union of India is concerned, we have carefully gone through the

earlier order and the writ petition. Though it is correct that in

the writ petition there was a general claim to grant all the

benefits under Rule 6 which would include retiral benefits but it

appears that the Court did not go into the same. There is no

rejection of the plea and as such we are of the considered view

that this petition is maintainable and cannot be rejected on this

hyper­technical ground. In relation to applicability of Order II

Rule 2 of the Civil Procedure Code, 1908 this Court has held in

Devendra Pratap Narain Rai Sharma v. State of Uttar

Pradesh and Others1 as follows:

1 AIR 1962 SC 1334

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“12. …The bar of O.2 R. 2 of the Civil Procedure Code on
which the High Court apparently relied may not apply to
a petition for a high prerogative writ under Art. 226 of the
Constitution, but the High Court having disallowed the
claim of the appellant for salary prior to the date of the
suit, we do not think that we would be justified in
interfering with the exercise of its discretion by the High
Court.”

Placing reliance on the case of Devendra Pratap Narain

Rai Sharma (supra), this Court in Gulabchand Chhotalal

Parikh v. State of Gujarat2 in relation to Order II Rule 2 held as

follows:

“23. …By its very language, these provisions do not apply
to the contents of a writ petition and consequently do not
apply to the contents of a subsequent suit…”

9. In view of the above, we allow the petition and direct that

the entire service rendered by the petitioners in the Supreme

Court Legal Aid Committee and the Supreme Court Legal

Services Committee shall be treated as qualifying service for the

purpose of pension and shall be taken into consideration for

calculating their retiral benefits. Pending application(s), if any,

stand(s) disposed of.

………………………………..J.

(L. Nageswara Rao)

2 AIR 1965 SC 1153

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…………………………………J.

(Deepak Gupta)
New Delhi
February 05, 2020

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