Punjab-Haryana High Court
Surinder Kaur Uppal vs State Of Punjab And Others on 23 April, 2009
Author: Nirmaljit Kaur
Bench: Ashutosh Mohunta, Nirmaljit Kaur
L.P.A No. 63 of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
L.P.A No. 63 of 2004
Date of decision: 23.04..2009
Surinder Kaur Uppal ........Appellant
Versus
State of Punjab and others .......Respondent(s)
Coram: Hon'ble Mr. Justice Ashutosh Mohunta
Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. Atul Lakhanpal, Senior Advocate with
Mr. R S Chahal, Advocate
for the appellant
Ms Ambika Luthura, AAG, Punjab
for the State
Mr. Harsh Garg, Advocate
for respondent No. 4
-.-
Nirmaljit Kaur,J.
This Letters Patent Appeal has been filed by the appellant against the judgment dated 16.09.2003, passed by learned Single Judge in Civil Writ Petition No. 19252 of 1996.
Brief facts of the case are that the appellant was appointed as a Science Teacher with Sohan Lal D.A.V. Senior Secondary School, Ambala City on 16.07.59 and she served there till 20.10.1966. The Ambala City at that time was a part of the State of Punjab. Thereafter, the appellant joined the Henderson Memorial Girls High School, Kharar, on 21.10.1966 as Science and Mathematics teacher and she worked there up to 31.01.1982. L.P.A No. 63 of 2004 2 The aforesaid school was a recognized and aided School. The appellant, thereafter, joined B.S.M. Sikh Girls High School, Kharar, District Ropar, on 01.02.1982 as Headmistress in the grade of pay, permissible by the Punjab Government Education Department, for the post of Headmistress in the Privately Managed Government Aided Schools. She retired on 08.11.1995. The appellant applied for the grant of pension, gratuity and provident fund on 02.04.1996 and also submitted her pension papers on that date, but till date, the appellant has not been paid the pensionary benefits, including gratuity and provident fund. When the pensionary benefits were denied to the appellant, without assigning any reasons, she filed Civil Writ Petition No. 19252 of 1996 in this Court. The learned Single Judge declined the claim of the appellant for grant of pensionary benefits. The present Letters Patent Appeal has, therefore, been filed by the appellant against the judgment dated 16.09.2003, passed by learned Single Judge in the aforesaid writ petition.
There is no dispute that the Punjab Privately Managed Recognized Aided Schools Retirement Benefits Scheme, 1992 (in brevity, 'the 1992 scheme') is applicable to the appellant. The aforesaid 1992 scheme came into force with effect from 05.02.1987. Chapter III, Clause 6 of the 1992 Scheme, deals with the qualifying service, for grant of pensionary benefits. For ease of reference, the aforesaid clause is reproduced hereunder:-
"6. Qualifying Service (1) The Service of an employee shall not qualify for retirement benefits under this Scheme unless: L.P.A No. 63 of 2004 3
(i) he attains the age of eighteen years;
(ii) he takes charge of the aided post to which he is first appointed except for which it is otherwise provided by special rules or contract; and
(iii) the service is on an aided post on regular basis. (2) The leave admissible under the Punjab Privately Managed Recognized Schools Employees (Security of Service) Rules, 1981 and under the instructions issued by the Department from time to time shall qualify for pension but leave without pay and period of suspension, overstay of leave not subsequently regularized under the above said rules and the period of break in service shall not be reckoned as qualifying service.
(3) The service rendered in one or more privately managed recognized aided schools under the same management shall count for retirement benefits;
provided the transfer was made in terms of the Punjab Privately Managed Recognized Schools Employees (Security of Service) Rules, 1981.
(4) In a case where the total qualifying service is less than ten years, no pension benefit shall be admissible.
(5) The service rendered on an aided post in another privately managed recognized schools in the State of Punjab, shall count for retirement benefits; Provided that the Contributory L.P.A No. 63 of 2004 4 Provident Fund account of the employee in the previous school continued as such in the subsequent school to which he is transferred or appointed and there is no break in service. (6) The qualifying service will be taken into account with effect from an employee started contributing towards the Contributory Provident Fund."
Clause 8 of the 1992 Scheme, entitling an employe for pension, also reads as under:-
"8. Entitlement for pension -- An Employee shall be entitled for pension under the Scheme only after he completes ten years (twenty half years) qualifying service."
While rejecting the claim of the appellant, for grant of pension, learned Single Judge held that the appellant joined with B.S.M. Sikh Girls High School, Kharar without getting permission from the Henderson Memorial Girls High School, Kharar, hence, is not entitled to get the benefit of the past service. The documents (P-6 and P-7) furnished by the appellant, which show recommendation by the Principal of Henderson Memorial Girls High School, Kharar, for appointment as Headmistress of B.S.M. Sikh Girls High School, Kharar, were held as not proved on record and it was held that the appellant had joined B.S.M. Sikh Girls High School, Kharar, without any intimation to Henderson Memorial Girls High School, Kharar and without seeking their permission etc. Therefore, the appellant was not allowed the continuity of service by combining the service rendered in the two schools.
L.P.A No. 63 of 2004 5
After hearing learned counsel for the parties and having gone through the judgment of the learned Single Bench, we feel that a benevolent scheme, such as grant of pension to an employee, who admittedly put in almost 30 years of service, could not have been denied outrightly simply on the ground that no permission of the Management was taken before joining another school. Such an interpretation would defeat the very object and intent of the scheme. The condition will not be applicable to the appellant on account of another reason. The 1992 scheme came into being with effect from 05.02.1987 whereas the appellant had joined another school in 1982. Although the 1992 scheme is applicable to the appellant for grant of pension, the condition, which the appellant could have fulfilled only in the year 1982 when the appellant left the Henderson Memorial Girls High School, Kharar and joined B.S.M. Sikh Girls High School, Kharar on 01.02.1982, cannot be made applicable to the appellant in the facts of the case. When the appellant changed the school in 1982, she was not aware that a pension scheme would be formulated for the employees, like the appellant, in the year 1992 and will be made applicable with effect from 05.02.1987. In fact, Clause 6(3) of the 1992 Scheme, has been interpreted by this Court in the case of "M.R Juneja v. State of Punjab and others," 2004(3) R.S.J. 236. We are in full agreement with the observations and interpretation so made by the learned Single Judge, while interpreting the aforesaid clause, which runs as under:-
"8. In order to appreciate the stand taken by the respondents for not counting the service rendered by the petitioner in M.D.A.S. Higher Secondary School at L.P.A No. 63 of 2004 6 Moga, namely, that he did not apply for the fresh appointment at Ferozepur through his previous employer at Moga, I am of the view that the provisions of the 1979 Act and the 1981 Rules framed thereunder are primarily meant for protecting and regulating the service conditions of the employees of the government aided private schools. As a cardinal rule of interpretation, an effort should always be made to interpret the Act and the Rules to achieve the object for which the legislature stepped into this field. The provisions of the Act and the Rules framed thereunder, therefore, cannot be interpreted in a manner which may defeat the legislative object by negating the protection of conditions of service of the employees of Govt. aided private schools. Keeping in view these principles, in my view Rule 9(2) of the 1981 Rules, upon which reliance has been placed by the respondents, cannot be construed to mean that the appointment of a teacher in another aided school will be rendered illegal for the purpose of grant of pension merely because he did not apply for the second post in another school through his previous employer. The object of this Rules is that the first employer is not taken by surprise if an employee intends to resign from his service so as to take up another assignment. In the absence of any such objection by the previous employer on record, the L.P.A No. 63 of 2004 7 State Government cannot be permitted to take shelter behind this technicality. Moreover, the petitioner was appointed in H.M. Higher Secondary School at Ferozepur in the year 1971 and at that time, neither the 1979 Act nor the 1981 Rules framed thereunder were in force. In the absence of retrospective applicability of these provisions, the respondents cannot be permitted to press into this objection."
The facts of the present case are similar to that of M.R.Juneja's case (Supra). Therefore, we hold that there was no break in service and there was also continuity of service.
The claim of the appellant for grant of pension was rejected yet again on another ground. The appellant had started contributing to the aforesaid scheme only with effect from 01.01.1986 and since she had retired from service on 18.11.1995, her qualifying service would come to 9 years 10 months and 8 days instead of 10 years of qualifying service, and it was held that since the qualifying service of the appellant was less than 10 years, therefore, she was not entitled for grant of pension under the aforesaid scheme.
Learned counsel for the appellant, while challenging the aforesaid reasoning submitted that under Rule 6.1 of the Punjab Civil Services Rules Vol II, while calculating the length of service, fraction of/or equal to six months and above shall be treated as a completed 6 months period for the purpose of calculating of any pension. It was also submitted that in view of Rule 6.1 of the Punjab Civil Services, Vol-II, the qualifying L.P.A No. 63 of 2004 8 service of 9 years 10 months and 8 days could be calculated as 10 years qualifying service and the appellant would be entitled to the grant of pension under the aforesaid scheme. It was submitted on fact that the appellant was on probation for a period of one year and for that period, no CPF is to be deducted. Moreover, the appellant was paid salary only after a period of three years and that the Director of Public Instructions had to make deductions, and in case such deduction was not made, the appellant could not be blamed for the same. Further, the finding that the CPF subsequently deposited for the period from 01.02.1982 to 31.12.1985 without interest, is incorrect, as the interest has also been deposited.
We find force in the arguments raised by the learned counsel for appellant. It is not denied by the respondents that the Contributory Provident Fund was subsequently deposited by the appellant with effect from 01.02.1982 to 31.12.1985. Having deposited the Contributory Provident Fund, which was earlier not deposited only on account of the fact that the salary, itself, was paid to the appellant, after a lapse of three years, we do not find that the claim of the appellant for grant of pension should be rejected on these facts by not counting the service period with effect from 01.02.1982 to 31.12.1985 towards the qualifying service only on the ground that the Contributory Provident Fund was deposited by the appellant, much later for this period. The fact remains that the appellant had put in regular service from 01.02.1982, without any break till the date of her retirement i.e. 08.11.1995. To leave out the period of service with effect from 01.02.1982 to 31.12.1985 out of the total period of service rendered by the appellant with B.S.M. Sikh Girls High School, Kharar L.P.A No. 63 of 2004 9 only on account of the fact that CPF for this period was submitted subsequently, is too harsh and amounts to washing out the entire period of service rendered by the employee.
The appellant, in fact, is not only entitled to count her service for the period i.e. 01.02.1982 to 08.11.1995, which the appellant rendered in the B.S.M. Sikh Girls High School, Kharar, but also for the period i.e. 21.10.1966 to 31.01.1982, which the appellant rendered in the Henderson Memorial Girls High School, Kharar.
Under Clause 6(5) of the 1992 Scheme, the appellant was entitled to count for her service rendered on an aided post in another privately managed recognized school in the State of Punjab, for grant of retirement benefits. However, this submission of the appellant was turned down by the learned Single Bench on the ground that the contributory provident fund account of the appellant in the previous school i.e. Henderson Memorial Girls High School, Kharar, did not continue as such in the subsequent school i.e. B.S.M. Sikh Girls High School, Kharar, to which the appellant was appointed. On the other hand, the specific case of Henderson Memorial Girls High School, Kharar, in its written statement, is that as long as the appellant was working with the answering respondent, her contribution to the provident fund along with answering respondent's contribution was being duly deposited in the account of the appellant, bearing account No. 1189069 in the post office, Kharar and that the appellant could herself withdraw the amount whenever she wanted. The employee's amount of CPF amounting to Rs.28809/- was still lying in the post office vide Account No. 1189069.
L.P.A No. 63 of 2004 10
Thus admittedly, the appellant had deposited the Contributory Provident Fund while working on a post in the Henderson Memorial Girls High School, Kharar, which was an aided post and there was no break in service.
The appellant had further continued to deposit her share of CPF in the subsequent school i.e. B.S.M. Sikh Girls High School, Kharar, on her appointment as Headmistress. Once, the appellant continued depositing the Contributory Provident Fund in the subsequent school and there was no break in her service, there was no reason as to why her service rendered in the Henderson Memorial Girls High School, Kharar should not be counted towards the pensionary benefits only because the same account of Contributory Provident Fund was not transferred to the B.S.M. Sikh Girls High School, Kharar. The condition of clause 6(5) of the 1992 Scheme concerning the account being transferred cannot be made applicable to the appellant on the basis of the same analogy, as discussed above, with respect to application of condition of Clause 6(3) of the 1992 Scheme. The appellant, herein, sought appointment in B.S.M. Sikh Girls High School, Kharar in the year 1982, while the Scheme was notified in 1992, made applicable w.e.f. 1987. At that time, this condition did not exist. In any case, the Contributory Provident Fund was being deposited both while serving in Henderson Memorial Girls High School, Kharar, as well as B.S.M. Sikh Girls High School, Kharar. A Division Bench of this Court in the case of "Gurmeet Singh v. The State of Punjab and others", reported as 2007(3)SLR 858, wherein almost similar objections were raised, held that service rendered on an aided post in another privately L.P.A No. 63 of 2004 11 managed recognized school is to be counted for retiral benefits, especially when the petitioner has continued to deposit the Contributory Provident Fund in the subsequent School and there has been no break in his service. The observations made in the said judgment are as follows:-
"Likewise, the objection with regard to deposit of Contributory Provident Fund deduction w.e.f. 1.4.1972 would also not of any consequence. Firstly, the Scheme itself had come into force in the year 1987. Secondly, the Contributory Provident Fund amount of Rs. 99,661/- withdrawn by the petitioner has already been deposited back on 30.6.2004 along with interest, amounting to Rs. 1,17,317/-. Moreover, the petitioner has placed reliance on clause 6(5) of the 1992 Scheme which specifically provides that the service rendered on an aided post in another privately managed recognized school is to count for retirement benefits. According to the proviso the Contributory Provident Fund account of the employee in the previous school is continued as such in the subsequent school to which he was transferred and there was no break in service. The petitioner fulfills both the requirements because he had continued depositing Contributory Provident Fund in the subsequent school on his appointment and there has not been any break in his service. On this additional ground also the petitioner deserve to succeed and the L.P.A No. 63 of 2004 12 objection in that regard is liable to be rejected. In so far as the objection that the case of the petitioner is not covered by clause 7(1) of the 1992 Scheme, we are of the view that there is no force in it because after relieving on 1.1.1990 from Shri Parkash Ashram High School, Beri Gate, Amritsar, the petitioner joined on 2.1.1990 at Khalsa College Senior Secondary School, Amritsar. He was relieved from Khalsa College Senior Secondary School, Amritsar, on 30.4.1990 and joined on the same day at Sant Singh Sukha Singh Khalsa Senior Secondary School, the Mall, Amritsar. Therefore, there is no substance in the objection raised."
The contents of the letter dated 20.08.1998 (Annexure P-13), addressed by the Deputy Director, Finance Department, Local Audit Wing to the Director Public Instructions (Schools) Punjab, are relevant, for verification of the facts of the case. It reads, thus:-
".....The District Education Officer (Schools) Ropar in his JAWABDAHWA has stated that this case does not meet the requirement of Rules (service shown being less than 10 years which is incorrect), despite her producing a letter from the authorities that she has served in Henderson Memorial Girls High School, Kharar from 21.10.1966 to 31.01.1982. In this regard, the Circle Education Officer, Nabha and the District Education Officer, Ropar, have verified in their letter L-5/81-692- L.P.A No. 63 of 2004 13 93 of 23.11.1981 (copy attached), the service of Smt. Surinder Kaur Uppal from 31.10.1967 to 31.01.1982. And from 01.02.1982 to 08.11.1995, she has rendered her service in BSM Sikh Girls High School, Kharar without any break and in continuous service. It is also highlighted that Henderson Memorial Girls High School, Kharar, has not made payment of Provident Fund deducted from the salary so far, to the incumbent.
Rs.29,175/- as 50% share of the incumbent P.F., has already been deposited in the pension fund of the employee. In addition to this, the provident fund for the period 01.02.1982 to 31.12.1995 amounting to Rs.10,685/- which was not deducted from the employee's salary by District Education Officer, Ropar has already been deposited on 30.07.1998 in the Treasury (copy attached).
As per provisions of Rule 6(5) of the Privately Managed Recognized AIDED SCHOOL RETIREMENT benefit scheme 1992, the service rendered in various aided schools is to be counted for the purpose of grant of pension, provided service is continuous and the provident fund is deposited.
It is, therefore, requested that in view of the facts mentioned by applicant and in view of Court case, the request of the incumbent be accepted to for the grant of L.P.A No. 63 of 2004 14 pension under intimation to this office."
In view of the above, we find that on the basis of the 1992 Scheme, the principle for interpretation of statutes/rules and the binding precedents, the Letters Patent Appeal deserves to be allowed. Accordingly, while allowing the appeal, we set aside the judgment dated 16.09.2003 passed by the learned Single Bench in Civil Writ Petition No. 19252 of 1996 and direct the respondents to count the entire service of the appellant with effect from 21.10.1966 to 08.11.1995 towards qualifying service, for the purpose of grant of retiral benefits. Needful be done within a period of three months from the date of receipt of a certified copy of the order. The appellant shall also be entitled to payment of interest at the rate of 8% from the date the pension became payable to her till it is actually paid. However, no interest shall be paid to the appellant with effect from 16.11.2003 (the date when learned Single Judge pronounced the judgment in CWP No. 19252 of 1996) till the decision of the present appeal.
[Nirmaljit Kaur] Judge [Ashutosh Mohunta] Judge Whether referred to reporter: Yes/No April 23, 2009 mohan