Punjab-Haryana High Court
The Chief Secretary To Govt. Of Haryana ... vs Jagbir Singh Sarot on 3 December, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Regular Second Appeal No.4729 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 03.12.2012
1. Regular Second Appeal No.4729 of 2011 (O&M)
The Chief Secretary to Govt. of Haryana and others
......Appellants
Versus
Jagbir Singh Sarot
.......Respondent
2. Regular Second Appeal No.4752 of 2011 (O&M)
The Chief Secretary to Govt. of Haryana and others
......Appellants
Versus
Zile Singh Sarot
.......Respondent
CORAM : HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Ajay Gupta, Addl. A.G., Haryana,
for the appellants.
Mr. S.N. Gaur, Advocate,
for the respondent(s).
*****
A.N. Jindal, J.
CM No.13776-C of 2011 For the reasons mentioned in the application, same is allowed and delay in filing the appeal is condoned.
RSA No.4729 and 4752 of 2011 (O&M) This judgment shall dispose of Regular Second Appeal Nos.4729 and 4752 of 2011, as common questions of law and facts are involved in both Regular Second Appeal No.4729 of 2011 (O&M) 2 the appeals. For reference, facts are taken up from the Regular Second Appeal No.4729 of 2011.
Both the Courts below by interpreting Rules 4.19 and 6.16 of the Punjab Civil Service Rules, awarded pension to the plaintiff-respondent (hereinafter referred as 'the plaintiff'), who had resigned after serving about 18 years of service. Hence, the State is in appeal.
The admitted facts are that the plaintiff had joined as Sectional Officer in the office of District Town Planner, Faridabad, with effect from 27.11.1987 and he submitted his resignation after serving the Government for 18 years, vide letter dated 01.11.2005, which was accepted by the Director, Town and Country Planning, Haryana, vide letter dated 25.11.2005 with effect from 30.11.2005 and he was relieved from service on that date. Thus, he had remained in service for 18 years and 04 months i.e. less than 20 years, which according to the appellants-defendants (hereinafter referred as 'the defendants'), was minimum service required for enabling an employee retiring from Government Service to become eligible for pension. However, the plaintiff has claimed that he having rendered this much service is entitled to the pensionary benefits.
On the other hand, the case of the defendant was that since the plaintiff had resigned from service and did not reserve his rights to seek pension at the time of submitting the resignation; he has already received the dues which were available to him after his resignation, therefore, he was not entitled to any pensionary benefits.
On the pleadings of the parties, following issues were framed by the trial Court:-
Regular Second Appeal No.4729 of 2011 (O&M) 3
1. Whether plaintiff is entitled to retrial benefits along with interest? OPP
2. Whether the suit is not maintainable in the present form?
OPD
3. Whether the Civil Court has got no jurisdiction to entertain and try the present suit? OPD
4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
5. Relief.
Both the Courts below decided against the defendants. The substantial question of law involved in the case is, "whether the plaintiff, who has already resigned from service, was entitled to proportionate pension."
In order to assail the impugned judgments and also to refute the contentions raised by learned counsel for the plaintiff, the counsel for the defendants-State has contended that the case is not covered by Rule 5.32 (b) of the Punjab Civil Service Rules, which places a precondition of 20 years of service before an employee becomes entitle to the pensionary benefits. He has also contended that Rules 4.19 and 6.16 (1) and (2) of the Punjab Civil Service Rules have not been correctly interpreted. It was further urged that the judgments in cases Ganga Bishan Vs. State of Haryana and others, 1994 (4) SLR 59 (P&H); Mehar Singh Vs. State of Punjab and others, 2003 (3) SLR 624 (P&H) and Haryana State through Collector District Bhiwani, Bhiwani Vs. Madan Pal Ahlavat, 2003 (4) SLR 583 (P&H), relied upon by the lower Appellate Court, have been either distinguished, over-ruled or ignored by the Hon'ble Supreme Court in cases Regular Second Appeal No.4729 of 2011 (O&M) 4 State of Haryana and others Vs. Babu Singh, 2009 AIR (SC) 472 and Ghanshyam Dass Relhan Vs. State of Haryana and others, (2009) 14 Supreme Court Cases 506, wherein it was observed that expression "resignation from public service" would have to be read disjunctively from "dismissal or removal from it" and when read disjunctively, resignation simpliciter from public service entails forfeiture of past service and no pension is to be granted. Before making further observations, it would be expedient to reproduce Rules 4.19 (a) & 4.19 (b) as under:-
"4.19 (a); Resignation from public service, dismissal or removal from it, either under proviso (c) to Article 311 (2) of the Constitution for over anti- national activities such as sabotage, espionage etc. or for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination, entails forfeiture of past service and no pension shall be granted in the aforementioned circumstances:
Provided that in the cases of those government employees whose removal or dismissal results from participation in other objectionable activities affecting or endangering the security of the State, such proportionate pension may be granted as may be recommended by the Committee by the Advisors constituted under the Haryana Civil Services (Safeguarding of National Security) Rules, 1971.
(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service."
From bare reading of the aforesaid rules, it transpires that where an interruption in service is inevitable on account of two appointments at different stations and such interruption does not exceed the joining time permissible under the rules on transfer, shall be covered by grant of leave of any kind due to the Government employee on the date of relief or by formal condonation under Rule 4.23 to the extent to which the period is not covered. Rule 5.32-B, which entitles an employee to pension on completion of 20 years of service, reads as under:-
Regular Second Appeal No.4729 of 2011 (O&M) 5
"5.32-B. (1) At any time a Government employee has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. However, a Government employee may make a request in writing to the appointing authority to accept notice of less than three months giving reason therefore. On receipt of a request, the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority subject to rule 2.2 of Pb.
C.S.R. Vol. II:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub- rule (1) supra, the retirement shall become effective from the date of expiry of the said period:
Provided further that before a Government employee gives notice of Voluntary retirement with reference to sub-rule (1) he should satisfy himself by means of a reference to the appropriate authority that he has, in fact, completed twenty years service qualifying for pension."
The instant case does not fall within the purview of Rule 5.32 as the provision was applicable only, where the employee completes 20 years of qualifying service. For application of the said rule, the employee has to satisfy himself by means of a reference to the appropriate authority that he has, in fact, completed 20 years service qualifying for pension. Thus, the plaintiff being not fulfilling the condition as mentioned in Rule 5.32-B, is not entitled to apply for pension.
As regards Rule 5.32-A, the said rule reads as under:-
"5.32-A. (a) A government employee is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years, but a competent authority may permit the pension to be granted in special cases where the qualifying service is not less than 25 years.Regular Second Appeal No.4729 of 2011 (O&M) 6
(b) A retiring pension is also granted to a government employee who is required by Government to retire after completing 25 years' qualifying service or more and who has not attained the age of 55 years." The aforesaid rule also does not invite the plaintiff to have its invocation for providing him pension.
Now coming to Rule 6.16 (2) of the aforesaid Rules, which reads as under:-
"6.16 (2) In the case of a government employee retiring on or after 1-4- 1979, in accordance with the provisions of these Rules after completing qualifying service of not less than thirty-three years or more, the amount of superannuation, retiring, invalid and compassionate pensions shall be 50% of average emoluments as defined in Rule 6.19-C of these Rules subject to a maximum of (Rs.3000) [substituted vide No.1/2/1CSR Vol. II/91-Sr. AO (FD) dated 31.01.1992] per mensem. However, in the case of a government employee who at the time of retirement has rendered qualifying service of ten years or more, but less than thirty-three years, the amount of pension shall be such portion of the maximum admissible pension as such the qualifying service of thirty-three years, subject to a maximum of (Rs.375) [substituted vide No.1/2/1/CSR Vol. II/91-Sr. AO (FD) dated 31.01.1992] per mensem...."
While interpreting Rules 4.19 (a) and 6.16 of the Rules, the Hon'ble Apex Court in Ghanshyam Dass Relhan's case (supra), observed as under:-
"26. In our view, Rule 4.19 (a) has to be read and understood differently from what has been urged by Mr. Dholakia. The expression "resignation from public service" will have to be read disjunctively from "dismissal or removal from it". The expression "resignation from public service" will not be qualified by the subsequent references relating to anti- national activities. On the other hand, the expression "dismissal or removal from it" will be qualified by the said expression which would in both cases entail forfeiture of past service and disqualification so far as payment of pension is concerned. In other words, read disjunctively, resignation simpliciter from public service would entail forfeiture of past service and no pension is to be granted in the aforesaid circumstances.
27. As far as Rule 4.19 (b) is concerned, it is quite clear that resignation to take up with proper permission, another appointment, would Regular Second Appeal No.4729 of 2011 (O&M) 7 have to be in a service, which would count towards pension in government service. It means that the subsequent appointment must also be in public service and in such a case the resignation would not amount to resignation of public service. In such a case, continuity in public service would be accepted in computing the qualifying service of thirty years for grant of pension. It is a provision similar to Rule 4.19 (b) which was relied upon b y the Division Bench of the Calcutta High Court in deciding Dr. Sajal Kanti Chakroborty case and distinguishes the said case from the facts of this case.
28. As far as Rule 6.16 (2) is concerned, in our view, the same cannot be divided into two separate compartments as has been suggested by Mr. Dholakia. The second part of the said Rule is a consequence of the first part, which deals with retirement upon superannuation and not resignation, as in the instant case. In order to be eligible for pension the government employee at the time of superannuation would have to complete qualifying service of not less than thirty-three years or more. However, an exception has been made in the second part of the said Rule which also allows the benefit of prorate pension to employees who had rendered ten years' service or more.
29. In our view, not having superannuated from government service, the petitioner cannot come within the said category and as submitted by Mr. Patwalia, his case would instead be governed by Rule 5.32-A which deals with resignation."
Rule 6.16 (1), 6.16 (2) and 5.32 (B) also became the subject of controversy in Babu Singh's case (supra), wherein it was observed as under:-
"15. We find from the record that the claim of the respondent for the grant of retiral pension has been considered by the competent authority under Rule 5.32-B of PCS Rules, whereunder the respondent has to complete 20 years' qualifying service before seeking voluntary retirement from service. Proviso (2) to Rule 5.32-B emphasizes that before a Government employee gives notice of voluntary retirement with reference to sub-rule (1) he should satisfy himself by means of a reference to the appropriate authority that he has, in fact, completed twenty years service qualifying for pension. It is not in dispute that the respondent has been given the benefits of military service towards seniority, gratuity and other benefits including military pension and therefore, the High Court was not justified in extending the benefit of Rule 6.16 (1) of the PCS Rules to the respondent."
This Court also in case Sukhmander Singh Vs. State of Punjab and others, RSA No.1614 of 2009 (decided on 26.09.2012), took a similar Regular Second Appeal No.4729 of 2011 (O&M) 8 view while holding that in case a person, who has not completed 20 years of service, resigns from service, which has been accepted, is not entitled to pension.
Both the Courts below appear to have not taken correct view of the matter.
Resultantly, both the appeals are accepted; the impugned judgments are set aside and the suits filed by the plaintiff(s) are dismissed.
(A.N.Jindal) 03.12.2012 Judge ajp