Punjab-Haryana High Court
A.S. Bhatia vs Punjab State Electricity Board on 25 July, 2000
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT R.S. Mongia, J.
1. The petitioner joined the Punjab Stale Electricity Board (hereinafter referred to as 'the Board') as Assistant Engineer on January 10, 1962. In due course, he was promoted to the post of Executive Engineer, Superintending Engineer and then as Chief Engineer. It may be observed here that prior to joining the Board the petitioner was working with the Central Public Works Department (in short 'CPWD'), New Delhi, from April 16, 1956 to January 9, 1962.
2. Vide notification dated February 26, 1990, the Punjab Government amended Punjab Financial Rules Volume II by Punjab Financial (First Amendment) Rules Volume II, 1990. Apart from other items, the following substitutions were made pertaining to incidence of leave salaries and incidence of pensions :
"II. Incidence of Leave Salaries :
The incidence of leave salaries of Government employees who have served under two or more Governments shall be governed as under :
The liability for leave salary will be borne in full by the Department, from which the Government employee proceeds on leave, whether it be his parent Department or a borrowing Department with whom he is on deputation, IV. Incidence of Pensions :
Except in regard to the apportionment of liabilities of pensions of Government employees, who retired after serving the undivided India between India and Pakistan the adjustment of pensionary charges of Government employees, who have served under one or more than one Government shall be governed as under :
"The liability for pension including gratuity will be borne in full by the Central or State Government as the case may be to which the Government employee permanently belongs at the time of retirement."
A circular was issued by the Board on November 28, 1990 to all the Heads of different departments in the Board informing that the Board had adopted the instructions issued by the Government vide notification dated February 26, 1990.
3. On March 16, 1992, the Board issued an order (Annexure P.4) deciding to count the previous service rendered by the petitioner as Junior Engineer in CPWD from April 16, 1956 to January 9, 1962 (5 years 8 months and 24 days) as qualifying service towards the pensionary benefits in the Board in accordance with the notification of the Punjab Government dated February 26, 1990, as adopted by the Board vide Memo dated November 28, 1990.
4. The petitioner retired from service of the Board w.e.f. May 31, 1993 on attaining the age of superannuation of 58 years. The petitioner had served for 31 years 4 months and 22 days with the respondent-Board and if he had worked with the Board for 33 years, he would be entitled to maximum pension and olher maximum pensionary benefits. As per the decision, dated March 16, 1992 (Annexure P.4), referred to above, if entire service of 5 years 8 months and 24 days rendered by the petitioner in the CPWD was reckoned as qualifying service, the petitioner would have much more than 33 years service to his credit for purpose of pension. However, on July 21, 1993, Secretary of the Board, issued an order (copy Annexure P.5) that benefit of one year 7 months and 9 days out of the total service rendered by the petitioner with the CPWD be counted as qualifying service to complete 33 years service for purpose of maximum pension. Reference was also made to the earlier order issued by the Board dated March 16, 1992 (copy Annexure P.4).
5. On November 25, 1993, the Board withdrew its earlier decision, dated November 28, 1990, adopting the notification dated February 26, 1990, to which reference has already been made above. The decision dated November 25, 1993 may be noticed as under :
"Punjab Government notification No. 2/9/86-2FCD/1698 dated 26.2.1990 which was accepted by the Board vide its circular No. 273797/REG-6 Vol. VIII dated 28.11.1990 to fall in line with Punjab Government to extend pensionary benefits to Board employees, is hereby withdrawn as it relates to inter-Govt. transaction/relations and not to the Board Govt. (Central/State) transaction/relation."
6. The petitioner was not given the maximum pension by count ing one year 7 months and 9 days service as per the decision of the Board, dated July 21, 1993, (copy Annexure P.5), to which reference has already been made above. From the pleadings it seems that the Board was asking initially that the petitioner should deposit the contributions regarding the benefit received by him in the service of CPWD for one year 7 months and 9 days (approximately) (Rs. 22,000/-). Petitioner wrote on November 4, 1996 that there was no condition imposed by the Board for the petitioner to refund the benefit received by him in the CPWD for counting one year 7 months and 9 days as qualifying service towards pension. However, vide representation, dated February 24, 1997, Annexure P.8, the petitioner gave his willingness to deposit the contributions for the past service in CPWD of one year 7 months and 9 days. It further seems from the pleadings and Annexure P.9 dated September 8, 1997, that the Board wanted the petitioner to deposit contributions for the entire service rendered in CPWD and not only for one year 7 months and 9 days. Since nothing tangible was being done by the Board, the petitioner filed the present writ petition.
7. Learned counsel for the petitioner argued that as per the notification dated February 26, 1990 of the Punjab Government (relevant portion reproduced above), duly adopted by the Board vide its Circular date November 28, 1990, the petitioner was entitled !o counting of entire service of CPWD towards qualifying service for pension and petitioner was not required to make any deposit of contributions. After duly following that notification the Board itself passed an order firstly on March 16, 1992 for counting the entire period of service of the petitioner rendered in CPWD and later on vide order dated July 21, 1993, it had passed an order for the counting only one year 7 months and 9 days to make the petitioner's qualifying service as 33 years for getting maximum pensionary benefits. The decision of the Board, dated November 28, 1990 (by which the notification of the Punjab Government dated February 26, 1990 was adopted) was withdrawn only on November 25, 1993, after the decisions had already been taken by the Board on March 16, 1992 and July 21. 1993 to give benefit of one year 7 months and 9 days service rendered by the petitioner in the CPWD towards qualifying service for maximum pensionary benefits. The withdrawal could not have any effect on the decisions already taken by the Board. It was further submitted that the petitioner, though not required to deposit the contributions for the service rendered in CPWD for the period of one year 7 months and 9 days, yet he would have no objeclion to deposit the same for getting the aforesaid period counted towards qualifying service for pension.
8. On the other hand, learned counsel for the Board argued that the notification dated February 26, 1990 did no( provide anywhere as to whether the previous service rendered in another department/Government is to be counted by the Board or not. It only provided that if it is to be counted then the latter department from which the incumbent ultimately retires has to pay the entire pension. Since this was not applicable, the adoption of the same was withdrawn on November 25, 1993 and, therefore, the petitioner is not entitled to gel any period spent by him in the CPWD counted towards qualifying service for pension.
9. After hearing the learned counsel for the parties, we are of the view that the writ petition is liable to succeed. Apart from the fact that the Board itself had adopted the notification of the Punjab Government, dated February 26, 1990, on November28, 1990 and understood it to mean that the previous service rendered by an employee in another Department/Government is to be counted as qualifying service for pension, it actually took conscious decisions, dated March 16, 1992 and July 21, 1993. Otherwise also, nothing bars an employer to count previous service rendered in another department of Goverment independently of decision of the type, dated February 26, 1990, by the State Government. Moreover, adoption of the decision of the State Government was withdrawn on November 25, 1993, after the petitioner had retired and after a de-
cision had been taken in his favour on July 21, 1993. In the aforesaid circumstances, the petitioner would be entitled to get one year 7 months and 9 days service, rendered by him in the CPWD, reckoned as qualifying service for maximum pensionary benefits in the Board.
10. It is not necessary for us to go into the point whether the petitioner is liable to deposit the contributions with the Board for the aforesaid period spent by him in the CPWD inasmuch as the petitioner himself in his representation had agreed to deposit the same with the Board.
11. For the foregoing reasons, we allow this writ petition. On the deposit of the contributions with the Board by the petitioner for the period of service of one year 7 months and 9 days, rendered in CPWD, that much period would be counted as qualifying service for pension and pensionary benefits to the petitioner. Let these directions be carried out by the Board within three months of the aforesaid deposit of contributions by the petitioner and the arrears be released. If the arrears are not released within the stipulated period as above, the petitioner will be entitled to 12% interest thereon from the date the arrears became due till its actual payment.
12. Petition allowed.