Punjab-Haryana High Court
Darshan Singh Maini vs State Of Punjab on 13 September, 2000
ORDER V.K. Bali, J.
1. Mr D.S. Maini, retired Senior Lecturer through present petition filed by him under Article 226 of the Constitution of India seeks writ in the nature of certiorari so as to quash impugned orders Annexure P-4 and P-6 and to issue a writ in the nature of mandamus directing the respondents to abide by its order dated 25th of July, 1969 (Annexure P-1) vide which the sanction of the Governor of Punjab was granted to the payment of retiral benefits to the petitioner with effect from 1st of December, 1968.
2. The facts as projected in the petition reveal that the petitioner was eminent scholar having distinguished himself by obtaining a doctorate and having been appointed as Professor English at Harvard University, USA. He had a long stay of about fifteen years as Head of English Department in Punjabi University, Patiala. He joined Punjab Education Department as Lecturer in English in 1945. After partition of the country, he opted for serving in India. From 1950 to 1962, he was on deputation with National Defence Academy at Pune. It was during 1964 that he successfully cleared in Ph D. degree in English from 1963 he was on deputation with Punjabi University, Patiala. It is further his case that Punjabi University sought to absorb him permanently and confirmed him on the post of Professor and Head of the Department of English. Accordingly, he moved the respondents seeking permission for extension of deputation period upto 30th November, 1968 and further to retire him prematurely with effect from the date he could be given retirement benefits as he would have completed 23 years of service with the education department, Punjab. Accordingly, respondent No. 1 conveyed its approval of extension of deputation period upto 30th November, 1968 as also the sanction of retirement benefits with effect from 1st of December, 1968. Copy of this order has been annexed with the petition as Annexure P-1. It is further the case of the petitioner that his request having been accepted and retirement benefits having been conferred, he was accordingly absorbed on payment basis by the Punjabi University and the retirement benefits accrued with prior sanction of the department of finance, Government of Punjab, were paid. He started drawing his pension at the rate of Rs. 243/- per month which was independent of the salary that he would earn from the Punjabi University, Patiala, as Professor and Head of the Department. This position was confirmed also by an order of the Governor of Punjab dated 3rd of October, 1973, wherein it was categorically mentioned that sanction of pensionary benefits had been granted to the petitioner by the Governor of Punjab with effect from the date on which he was permanently absorbed in Punjabi University, Patiala i.e. with effect from 1st of December, 1968. It is further the case of the petitioner that order Annexure P-2 which was passed by Governor of Punjab was based on letter of Punjab Government dated 30th of June, 1973, vide which certain amendments to the Government of Punjab, department of finance, letter dated 11th of August, 1967 had been made. According to the aforesaid letter which has substantially amended the rules with regard to grant of pensionary benefits to the employees getting absorbed in government undertakings or corporations, it has been clarified that they would either be entitled to pension, gratuity etc. from the earliest date from which he could have, voluntarily retired under the rules or from the date of absorption in the undertaking/corporation. On 7th of November, 1973, another order was passed by the respondent whereby previous order, Annexure P-2, was cancelled. It is the case of the petitioner that the order has been purported to be made on the basis that the petitioner did not have qualifying service of 25/30 years to his credit before 1st of December, 1968 and consequently he was not entitled to pension from that date. However, subsequently another order was issued in which it was specified that the petitioner would be entitled to pension with effect from 1st of December, 1970, the date on which the petitioner would have completed 25 years of service under the Government of Punjab- Yet once again respondent No. 2 issued another order on 2nd of January, 1978, directing Treasury Officer to stop the payment of pension of the petitioner on the ground that he would be entitled to pension only with effect from 8th of January, 1974, Thereafter, the petitioner made several representations, mention whereof has been made in para 10 of the petition but it is on May 15, 1986 that he was informed that his representations have been rejected. On the facts, as stated above, it is the case of the petitioner that orders Annexure P-4, P-5 and P-6 directing the Treasury Officer 10 stop payment of pension to the petitioner and to deduct the payment of pension made from 1st of December, 1970 to 7th of January, 1974 is contrary to the rules of Punjab Civil Services Rules and the instructions issued by respondent No. 1 from time to time.
3. The cause of the petitioner has been opposed by respondents who have filed written statement pleading therein by way of preliminary objection that the petition is highly belated and is liable to be dismissed on that ground alone. It is admitted that orders dated 3rd of October, 1973 granting pensionary benefits from the date of absorption were issued by the Government but the said orders were cancelled immediately thereafter oh 7th of November, 1973. The pension was finally allowed to the petitioner from 8th of January, 1974, being the earlier date in accordance with rule 5-32A of Civil Service rules Vol. II. Date.of birth of the petitioner was 8th of January, 1919 and after adding 55 years, it comes to 8th of January, 1974 but after adding 30 years into date of joining i.e. 1.12.1945, it comes to 1.12.1975 and as such he was rightly allowed pension with effect from 8th of January, 1974. It is further stated that even though petitioner was allowed pension with effect from 1st of December, 1970, but as it was in contravention of the normal Rules, the moment this mistake came to the notice, the same was rectified and the petitioner was required to complete 30 years of service and not 25 years of service. It has been pleaded that since the pension of me petitioner was not stepped up by respondent No. 2, the case of the petitioner was finalisead accordance with the instructions issued by Punjab Government dated 30th of June, 1973, which were made effective with effect from 11th of August, 1967. In terms of the said letter, pro-rata pension, gratuity, etc. admissible were to be disbursed either from the earliest date from which the government servant could have retired voluntarily or from the date of absorption in the undertaking which would have been later. In the case of the petitioner date of seeking retirement was later and as per rule 5.32-A of Punjab Civil Services Rules Vol. II, the date of seeking retirement was 30 years qualifying service or 55 years of age. Accordingly, petitioner was to complete 30 years in 1975 and attain the age of 55 years in 1974. Hence pension was allowed with effect from 8(h of January, 1974 in accordance with Civil Services Rules and instructions of the Punjab Government.
4. Concededly, the petitioner joined the Punjab Edu-calion department as Lecturer in English on 1st of December, 1945. He remained on deputation with National Defence Academy from 1950 to 1962. In other words, he continued working as a Lecturer in English with Punjab Education departments from 1st of December, 1945 upto 1950 when he was sent on deputation with National Defence Academy. After being relieved from the National Defence Academy, again, it is conceded position that the petitioner was sent on deputation to Punjabi University, Patiala in 1963. It is in November, 1968 that the petitioner sought permission to be permanently absorbed in Punjabi University but while making such a prayer he clearly stated that he be given his retiral duesn On his representation aforesaid, order Annexure P-1 dated 25th of July, 1969 came to be passed wherein it is mentioned that sanction of the Governor of Punjab is accorded to the extension of deputation period of Shri D.S. Maini, Senior Lecturer, Punjab Education Department with the Punjabi University, Patiala from 8.8.1968 to 30.11.1968 as per the terms and conditions laid down in Punjab Government memo dated 6.6.1968. Para 3 of the order reads thus :-
"On his absorption with effect from 1.12.1968 on permanent basis by the Punjabi University, Patiala, sanction of the Governor of Punjab is accorded to the payment of retirement benefits to Sh. D.S. Maini in terms of Punjab Govt. letter No. 4446-6 FR-687/18426 dated 11th August, 1967."
5. Vide orders dated 3rd of October, 1973, the petitioner was actually granted pensionary benefits in terms of the letter date 3rd of October, 197-3 with effect from the date he was absorbed permanently in the Punjabi University, Patiala i.e. 2.1968.
6. It is in pursuance of the letter dated 11th of August, 1967 that orders Annexures P-1 and P-2 came to be passed. Subsequently, it came to be amended vide letter dated 30th of 1973. Relevant part of the letter reads thus :-
"The pro-rata pension, gratuity, etc. admissible in respect of the service Tendered under government would be disbursable either from earlier date from which the government servant could have retired voluntarity under the rules applicable to him or from the date of absorption in the undertaking/corporation."
7. From the facts as have been fully detailed above, it is clear that the petitioner joined Punjab Education department in the year 1945. Vide order Exhibit P1. dated 25th of July, 1969, he was permanently absorbed in Punjabi University. The petitioner could have sought voluntary retirement after serving for a period of 25 years, in accordance with Rule 5.32-A of the Punjab Civil Services Rules, Volume II. The rule, on which fate of the case depends, i.e. 5.32-A, reads as under :-
"A permanent Government employee who may be permitted to be permanently absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by Government or in or under a body controlled or financed by Government, or Municipality, Panchayat Samiti or Zila Parishad, shall, if such absorption is declared by Government to be in the public interest, be deemed to have retired from Government service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from the date of such absorption or the date of his voluntary retirement, whichever is later."
The rule referred to above would clearly suggest that a permanent government employee, who is permanently absorbed in a service or post in or under a Corporation or Company etc., wholly or substantially controlled by the Government, is deemed to have retired from Government service from the date of such absorption and is eligible to receive retirement benefits, which he may have elected or deemed to have elected, and from the date of such absorption or the date of his voluntary retirement, whichever is later.
8. As mentioned above, the petitioner was permanently absorbed in Punjabi University with effect from 1st of December, 1968. Had he continued serving for a period of 25 years, he could have voluntarily retired, as per Rule 5.32-A, referred to above, on 1.12.1970, having joined service on 1.12.1945, as mentioned above. Clearly, therefore, the petitioner was entitled to pension from a later date, as mentioned in Rule 5.32-A of the Punjab Civil Service Rules, Volume II. "The position is absolutely clear, yet the case of the respondents in contesting the claim of the petitioner is exclusively based on the Government Instructions dated 11.8.1967." Mrs. S.K. Bhatia, learned Deputy Advocate General, Punjab places reliance upon para 10.13 of the instructions aforesaid, relevant part whereof reads thus :-
"(i) A permanent Government employee on absorption in a public undertaking will be eligible for pro rata pension and D.C.R. Gratuity based on the length of the qualifying service under Government till the Sate of absorption. The pension will be calculated on the basis of average emoluments for three years preceding the date of absorption and the P-C.R. Gratuity on the basis of the emoluments immediately before absorption."
(ii) xx xx xx
(iii) The pro rota pension, gratuity etc., admissible in respect of the service rendered under Government would be disbursable only from the date the Government employee would have normally superannuated had he continued in Government service." '
9. It is significant to mention that vide instructions dated 30.6.1973, para 1(III) of para 10.13 has been amended. The existing para 1(III) now reads thus :-
"i) The pro rata pension, gratuity etc, admissible in respect of the service rendered under Government would be disbursable either from the earliest date from which the Government servant could have retired voluntarily under the rules applicable to him or from the date of absorption in the Undertaking/Corporation, whichever is later."
The substitution of para 1(iii) reproduced above, completely knocks out the solitary defence taken by learned counsel for the respondents. Nothing else is required to be mentioned, but for to state that the preliminary objection with regard to delay in filing the present petition also deserves to be rejected as the petitioner all thorough had been endeavouring for the relief through various representations filed by him and came to Court only when his request was turned down.
10. In view of the discussion made above, this petition succeeds. The impugned order (Annexure P6) dated 2.1.1978 is quashed. The petitioner is held entitled to pension from the Punjab Government with effect from 1.12.1970, when he had put in 25 years of service, after which he could seek voluntary retirement. No costs. In consequence of the order passed by this Court, the respondents would work out within three weeks, the payable pension of the petitioner from the date, referred to above, till such time the Government started paying pension to the petitioner. The payment would be disbursed to the petitioner within one week thereafter. Inasmuch as the respondents scuttled the rightful claim of the petitioner on wholly untenable grounds, in my opinion the ends of justice would be met if the respondents are directed to pay six per cent interest on the total amount payable to the petitioner.
11. Petition allowed.