Surinder Nath Kesar vs Board Of School Education & Ors (2020) - Claim for Pension for Earlier Service

Brief

In this case, the petitioner's main claim for pension is on the ground that even apart from the computation of the service period from 03.08.1994 to 31.05.2002, he should be granted the benefit of service which he rendered earlier with the Board during an earlier occasion from 08.03.1970 to 31.01.1988.

JUDEGMENT SUMMARY : Surinder Nath Kesar vs Board Of School Education & ors

• DATE OF JUDGEMENT : 06^th January, 2020
• JUDGES :  Hon’ble Mr. Justice M S Delhi and Hon’ble Mr. Justice A Bhushan
• REFERENCE : CIVIL APPEAL NO.9682 OF 2019
• PARTIES : Surinder Nath Kesar (Plaintiff) and Board of School Education & ors (Respondent)

SUBJECT

The following judgement deals the appeal which was filed against the judgment dated 21.05.2015 of High Court of Punjab & Haryana by which LPA No.1747 of 2014 filed by the appellant has been dismissed. The LPA was filed by the appellant challenging the judgment of learned Single Judge dated 20.04.2013 in Civil Writ Petition No. 3037 of 2003 by which judgment learned Single Judge had dismissed the writ petition filed by the appellant Signature Not Verified praying for grant of pension by adding interruption Digitally signed by ARJUN BISHT

AN OVERVIEW

• Let us bring into light the beginning of the events, the appellant was initially appointed by Board of School Education, Haryana, Bhiwani “Board” on 08.05.1970 for the post of Proof Reader. He then, due to his family circumstances voluntarily retired on 01.02.1988. He then proceeds to (appellant) submit a representation to the Education Minister of Haryana. Subsequently, the Education Minister, Haryana vide his letter dated 27.03.1993 forwarded the application of the appellant recommending consideration of his case for re-appointment on humanitarian ground after treating the period of absence without pay even if be Rules have to be relaxed Ltd. in which appellant no.1 and respondent no.2 were the signatories.
• Subsequently, the Board keeping into view the recommendation of the Education Minister resolved on 31.05.1994 granting sanction to reappoint the appellant afresh. It was then observed that for giving the benefit of past service, the opinion of the Government be obtained. In this apprehension, a fresh appointment order dated 25.07.1994 was issued to the appellant for appointment on the post of Proof Reader in the pay-scale of Rs.1400-2600.
• Later on, Secretary of the Board wrote to the Secretary of Government of Haryana, Education Department seeking clarification on benefit of past service to the appellant. The Board then vide its resolution dated 31.05.1995 decided to condone the period from 02.02.1988 to 02.08.1994 by treating the same as leave without pay for continuity of service for the purpose of pension and seniority.
• Subsequently, the Financial Commissioner & Secretary, Haryana Government, Education wrote a letter dated 27.05.1997 regarding giving the benefit of past service to the appellant referring to Rule 4.23 of Punjab Civil Services Rules Volume II (hereinafter referred to as “PCSR”) which states that period of interruption of one year can be condoned for giving the benefit of pension and whereas in the case of the appellant, the period of six years is condoned for the purpose of pension. Hence, clarification was asked for in the above regard.

IMPORTANT PROVISIONS

Constitution of India:

• Article 133- provides for an appeal to the Supreme Court of any judgement, order or decree from a civil proceeding of a High Court if it gives a certificate to the party that the case revolves around an important question law that needs the opinion of the Supreme Court.
• Article 32 - a writ petition can be filed in the Supreme Court.

ISSUES

The issues raised by the petitioner:

• The petitioner's claim for pension is on the ground that even apart from the computation of the service period from 03.08.1994 to 31.05.2002, he should be given the benefit of service which he rendered earlier with the Board during an earlier occasion from 08.03.1970 to 31.01.1988.

ANALYSIS OF THE JUDGEMENT

1. What the Board did was asked the appellant on 04.02.1998 to deposit along with interest up to 31.03.1998 amount with regard to gratuity, provident fund, leave encashment etc. as received by him consequent to voluntary retirement.
2. Later on 18.01.1999, the Director, Local Audit, Haryana wrote to the Secretary of the Board that Rule 4.22 of Punjab Civil Services Rules Volume II is not attracted and relevant rule is 4.23, which rule only authorized condonation of break of service up to one year duration and said that condonation can only be made by competent authority in relaxation of provisions of Rule 4.23 of PCSR.
3. Subsequently, on 15.05.2000, the appellant deposited the amount with interest up to 31.03.1998. The then Director, (Secondary Education) vide letter dated 24.08.2000 referring to audit objections requested for obtaining relaxation in Rule 4.23 of PCSR from Finance Department through Commissioner and Secretary Haryana Govt. Education Department.
4. Late on 24.08.2001, Director, Secondary Education, Haryana wrote to the Board that Finance Department has declined to accept the proposal and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of PCSR. The Board then asked the appellant to deposit interest up to the 31.12.2001, which was deposited on 04.01.2002. Late the appellant retired on 31.05.2002. Post retirement certain retirement benefits were paid to the appellant, which were accepted with protest.
5. Later on in the appeal on 02.08.2002, appellant submitted a representation to Board claiming pension. Then on 26.11.2002, the appellant was informed that as per Finance Department and as per pension rules he has already been paid the benefits, which were due to you on account of re-employment.
6. Finally, on July, 2002, the appellant had received the retirement benefits including the amount, which was deposited by the appellant. A Civil Writ Petition No.3037 of 2003 was filed by the appellant claiming pension and other benefits of service for the period service from 08.03.1970 to 31.01.1988 and for addition of interruption of period from 02.02.1988 to 02.08.1994 in his service. The Learned Single Judge referred to Rule 4.23 of PCSR. The Learned Single Judge took the view that as per Rule 4.23 if the break in service has been occasioned on account of resignation, dismissal or removal, the period of interruption of service cannot be condoned. The Learned Single Judge further observed that even the order of appointment is a fresh appointment order, it is not possible to compute two different spells of service as a single service. Subsequently, a review petition was filed by the appellant, which too was rejected on 22.11.2013. Due to the onset of the above mentioned events, the learned Single Judge while rejecting the review petition also observed that Clause 4.22 of rules is also not attracted. Then the appellant, therefore, filed a LPA before the Division Bench, which has been dismissed on 21.05.2015, against which, this appeal has been filed.
7. In response to the above, the Learned counsel for the appellant in support of appeal contends that under Rule 4.23 what is not condonable is only in cases where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike. He then submits that appellant having voluntary retired, which is not covered in the definition of resignation as mentioned in Rule 4.23, he is entitled for automatic condonation of interruption between 02.02.1988 till 02.08.1994. It was then further submitted that the Board having passed resolution for condonation of the aforesaid period and in consequence of which the appellant has deposited the gratuity, provident fund and leave encashment amount, which was received by him at the time of voluntary retirement, the respondents could not have denied the benefit of adding the interruption period for computing the pension. A Resolution was passed by the Board on 31.05.1994, which could not have been legally reviewed after five years. He then submits that the appellant is entitled for the benefit of Rule 4.23 of PCSR.
8. The Learned counsel for the State refuting the submission of the appellant contends that Rule 4.23 as relied by the appellant is not the relevant rule, which is applicable in the State of Haryana, submits that appellant having accepted voluntary retirement on 01.02.1988 and having joined again on 03.08.1994 as a fresh appointment, the earlier period cannot be added for the purpose of pension.
9. It consequently appears that both learned Single Judge and Division Bench has referred to Rules 4.22 and 4.23 of Punjab Civil Services Rules Volume II, which were not the rules applicable in the State of Haryana.
10. Even though Rule 4.23 which is applicable to the State of Haryana is one which has been brought on the record as Annexure R-1 in the counter affidavit. Rules 4.22 and 4.23 are quoted below:-

“4.22 The authority which sanctions the pension may commute retrospectively periods of absence without leave into leave without allowances or extraordinary leave.

4.23 Interruption in service either between two spells of permanent, or temporary service or between a spell of temporary service and permanent service or vice versa in the case of an officer retiring on or after the 5th January, 1961, may be condoned, subject to the following conditions, namely:-

(1) The interruption should have been caused by reasons beyond the control of Government employee concerned.

(2) Service preceding the interruption should not be less than five years' duration. In cases where there are two or more interruptions, the total service, pensionary benefits in respect of which shall be lost if the interruptions are not condoned should not be less than five years.

(3) The interruption should not be of more than one year's duration. In cases where there are two or more interruptions, the total period of all interruptions to be condoned should not exceed one year.”

11. Although, Rule 4.23 does not permit condonation of interruption of more than one year’s duration, hence the case of the appellant was not covered under Rule 4.23. It was due to this reason that a letter was written by the Government for obtaining relaxation under Rule 4.23. In the letter dated 24.08.2000 of Director, Secondary Education Haryana, Chandigarh (Annexure P-15) it was provided that relaxation be obtained in Rule 4.23 of Punjab Civil Services Rules Volume II from Finance Department through Commissioner and Secretary, Haryana Govt. Education Department. In letter dated 24.08.2000, following was stated:-

“As such in view of the audit objection you are requested to kindly obtained relaxation in Rule 4.23 of Punjab CSR Vol. II from Finance Department through Commissioner and Secretary Haryana Govt. Education Department and the same may be sent to this office.”                 

12. It was clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. Due to the onset of the circumstances thus leading to the State refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted.

CONCLUSION

Culmination of all the points stated above, the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. In addition, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellant’s case for condonation of interruption was not covered by Rule 4.23. Proving that the Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. To take into account the letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Hence, the Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The above mentioned letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Computing that subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.2001. It was then decided that, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Even though, the learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above. Coming to the final conclusion that, when the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. Consequently, the appellant’s period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension. Closing with, the appellant is not entitled for any relief in this appeal. Hence the appeal is dismissed.

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