Punjab-Haryana High Court
Parmal Singh Pundir Son Of Shri S.S. ... vs State Of Haryana And Others on 29 March, 2012
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.13646 of 2011 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.13646 of 2011
Date of Decision. 29.03.2012
Parmal Singh Pundir son of Shri S.S. Pundir .....Petitioner
Versus
State of Haryana and others .....Respondents
Present: Mr. J.S. Mannipur, Advocate
for the petitioner.
Mr. Sharad Aggarwal, Advocate for
Mr. Lokesh Sinhal, Advocate
for respondent No.4.
Mr. J.S. Chahal, Advocate
for respondent No.5.
Mr. Kshitij Sharma, AAG, Haryana.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.(ORAL)
1. The petitioner claims the benefit of his alleged past service with Saraswati Vidya Mandir arrayed as the 5th respondent for the period from 27.09.1973 to 05.08.1980 when he joined as a Headmaster with the 4th respondent school. The petitioner would rely on the fact that he had obtained approval for the continuity of service from the Commissioner and Director General of the School Education vide memo dated 14.08.2008 and it was stated specifically that he would be given the continuity of service from the date of his appointment as Master in the 5th respondent school under Rule 5(4) of the Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001 and the C.W.P. No.13646 of 2011 -2- pensionary benefits would also be calculated including the period of his earlier employment. This was, however, stated to be subject to fulfillment of other terms and conditions of the relevant Rules for the purpose of pensionary benefits.
2. To a claim by him seeking for continuity of service, the Government now has denied the benefit by a reference to the contention of the 4th respondent school where he had worked and where he was superannuated that they had no information that the petitioner was working with Saraswati Vidya Mandir earlier. The 5th respondent has filed a reply and it has contended that the petitioner was working between 1973 to 1980 but an endorsement of no objection, which is found in the order relieving him is not genuine. This is in response to a query that had arisen from the 4th respondent to the 5th respondent whether he had worked with the 5th respondent and he had secured a No Objection Certificate.
3. There are two issues that would fall for consideration. One, whether there had been a sanction for the continuity of service through memo dated 14.08.2008 or it was merely an instance of the Commissioner and the Director taking note of request for approval of continuity of service. The second issue is whether the absence or otherwise of the No Objection Certificate from the 5th respondent is a sine qua non for considering the issue of continuity of service. Again as regards the first question when an approval sought for the continuity of service by the communication dated 15.04.2008 when the DEO had sought for approval purporting to forward the request of petitioner's case, the learned counsel appearing on behalf of the State wants to C.W.P. No.13646 of 2011 -3- contend that no approval had been granted but it was merely making a record of the fact of a request emanating from the petitioner. I would deem it appropriate to reproduce the entire text of the reply for the words are not too clear but I cannot miss the underlying current that fell into reckoning the approval as sought for:-
"Approval for the continuity of service of Shri Parmal Singh Pundir, Headmaster, Aggarwal Sr. Sec. School, Ballabgarh (Faridabad) from the date of his appointment as Master in Saraswati Vidya Mandir, Jagadhari (Yamuna Nagar) i.e. 27.8.1973 under Rule 5(4) of Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001 and pensionary benefits are to be calculated on the basis of qualifying service under Rule 5(4) of Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001 subject to fulfillment of other terms and conditions and relevant rules for the purpose of pensionary benefits."
There is no expression approval as having been granted but the way in which the text of the communication has proceeded, I would take it that approval had been granted for continuity of service subject to fulfillment of other conditions.
4. If it were to be taken that there was no such approval, the matter would require to be considered at least at the stage when there was a demand by the petitioner for keeping the petitioner's service as continuous from the day when he had claimed that he was working in the Saraswati Vidya Mandir-5th respondent. We have now a clear admission from the 5th respondent school that he had worked between the period when he claimed that he was working with the 5th respondent. It should be remembered that the 5th respondent school was an aided institution and it was not as if the person could have merely fabricated the issue of his employment during the said period. The 4th respondent school has a contention to make that they had not C.W.P. No.13646 of 2011 -4- known that the petitioner was working with the 5th respondent before he joined as Headmaster in the school. I am prepared to take the contention at its face value but still the issue would only be, if the petitioner's employment with the 5th respondent itself is established by the fact of admission of the 5th respondent, then the only point would be whether the absence of no objection, assuming that no objection had not been given, would make any difference. If the petitioner was working for a particular period in an aided school and shifts to yet another aided school, I have not been shown through any provision that no objection was to be secured from the previous school. It is not as if a person could go from one school to another school, especially when both schools were aided schools with the same Government and grants in aid are invariably issued only on receiving returns from the management setting out of the employees on their roll and the respective entitlements. I would, therefore, reject the contention that even the absence of No Objection Certificates from the 5th respondent could have ever made any difference.
5. The petitioner is entitled to consideration for counting of his service from the Government for the entire period which he claims that he has worked with the 5th respondent for the purpose of calculation of pension.
6. The petitioner's contention is also that the scales of pay had been increased w.e.f. 01.01.2006 after the acceptance of the Government of 6th Pay Commission recommendation that the petitioner must have been granted the said scales as provided in the Government notification. Learned counsel for the respondents does not deny the C.W.P. No.13646 of 2011 -5- petitioner's entitlement but would only say that the work has been undertaken and appropriate orders will be passed in due course.
7. Yet another relief which has been sought for by the petitioner is that he should also be granted the scale of the Principal in view of the fact that the school had been upgraded and he has started working as Principal from the year 1991 in the school and the scales of Principal must have been accorded to him. I am afraid such a contention cannot be urged for the first time if the petitioner had not made that demand during his entire length of service especially when he contends that he was working as a Principal in an upgraded school from the year 1991. Yet another contention of the respondents State must also be noticed that this post of Principal was not sanctioned at any time. It should have been duty of the petitioner himself to ensure that the management had taken appropriate decision for securing a sanction for the post for the Principal of the time of upgradation and if it had not been done, it would only leave the petitioner a right of action against the State, if so advised and if it is tenable.
8. Yet another prayer of the petitioner is that he has been paid gratuity of Rs.3,50,000/- on 24.11.2010 when he had retired on 31.01.2009. It has been held by the Hon'ble Supreme Court in State of Kerala Vs. Padhamanabham Nair 2007 (1) KLT 8, that gratuity must be paid to the employee on the last day of his service or at the most on first day immediately after his superannuation. The delay in payment of the gratuity has not been explained. The petitioner would be entitled to interest @9% p.a on the gratuity from the date of his retirement till the amount is paid.
C.W.P. No.13646 of 2011 -6-
8. On a conspectus of the facts, which have been brought through the reasonings that I have taken, the petitioner would be entitled to reckoning of (i) his past service in the school from 1973 to 1980 when he joined with the 4th respondent; (ii) the petitioner would be entitled to the revised scales admissible in terms of the recommendations of the 6th Pay Commission and the terminal benefits will be calculated on such a basis and the arrears of pay will also be calculated and released to the petitioner within a period of 12 weeks from the date of receipt of copy of the order; (iii) petitioner's claim for revision of scale on the basis that he was a Principal of the school cannot be acceded to against the State and the petitioner will have an independent remedy against the 4th respondent if so advised and if it is admissible in accordance with law; (iv) the arrears of pension shall also be calculated and released to the petitioner within a period of 12 weeks from the date of receipt of copy of the order with interest @6% from the date of his retirement till the date of payment and (v) petitioner would be entitled to the interest @9% on the delayed payment of gratuity from the date of his retirement till the amount was paid.
9. The writ petition is allowed on the above terms.
(K.KANNAN) JUDGE March 29, 2012 Pankaj*