IMPORTANT POINT
The interpretation of statutory rules and the application of restrictions or conditions appended to the rules should be in line with the specific categories and provisions mentioned in the rules.

JUDGMENT :

1. Both the authorities and the Tribunal have misinterpreted and misconstrued the relevant provisions in rejecting the claim of the petitioner, which on a meaningful reading conveys a different meaning than what has been accepted and assigned in the orders passed by the aforesaid authorities.

2. The petitioner was appointed to a regular/permanent post and attained superannuation with effect from 31st January, 2022. Since he rendered the services for a period of 9 years 9 months and 12 days, which is short of 10 years, he applied for the condonation of deficiency in service under Rule 36 of the West Bengal Services (Death cum Retirement Benefit) Rules 1971.

3. It is not in dispute that in order to be entitled to pension the minimum qualifying service to be rendered by such Government servant is 10 years, which is not disputed by the respective Counsels. The question involved in the aforesaid context is whether the power of the Government to condone the deficiency in service is unbridled or restricted or controlled by the note appended thereto.

4. The authority before whom the said representation was made applied the provisions contained in Rule 36 thereof, more particularly the note appended thereto and arrived at the conclusion that the petitioner does not fulfil the conditions mentioned therein and, therefore, not entitled to have the privilege of condonation of deficiency in service.

5. The said Rule 36 is reproduced hereunder:

“36. Power of Government to condone deficiency in service - Upon any condition which it may think fit to impose, Government may condone a deficiency of six months in the qualifying service of a Government servant.

Note: The deficiency should not be condoned with a view to make up the minimum prescribed qualifying service for the purpose of death gratuity or family pension. In other cases power should be restricted to Government servant drawing pay not exceeding Rs. 425/- per month at the time of retirement on invalid or compensation pension.”

6. The order of the authority was challenged by the petitioner before the West Bengal Administrative Tribunal in OA No. 936 of 2021 and by the impugned order the Tribunal without recording its independent findings on the interpretation assigned by the authority on the provisions of Rule 36 thereof proceeded to dismiss the matter holding that no case is made out by the petitioner for such condonation.

7. Initially we ventured to go into the legal point whether the note appended below the substantive provision can be looked into even when it over-reach or override the enabling provision. After hearing the parties, we find that it would be a mere academic to go to the nuances of law in this regard and, therefore, we decided to proceed on the basis of the language employed in the aforesaid provision and the interpretation to be given to it.

8. Admittedly there is a shortfall of 2 months and 18 days in the qualifying service required for Government employee for his entitlement to pension under the aforesaid Rules. Rule 36 bestowed power upon the Government to condone the deficiency of six months in qualifying service of the Government without putting any reservation, restriction or condition so far as the enabling provision is concerned. The note appended below the aforesaid Rule has played a pivotal role in the decision of the authority as well as the Tribunal, who, in our opinion, have misinterpreted or misconstrued the same.

9. The note creates a bridled and put a condition while exercising the discretion in relation to condonation of deficiency in service. Even if we consider that by virtue of the note the exercise of power conferred under the enabling provision can be abridged or controlled to the extent indicated therein, yet we do not find that the manner in which the language used therein can be accepted or substantiated from the stand of the authority and the Tribunal.

10. It is manifestly clear from the said note that the Government may refuse to condone the