Punjab-Haryana High Court
State Of Haryana And Others vs Shadi Lal Malik on 14 October, 2014
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
LPA No.604 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No.604 of 2013 (O&M)
Date of decision : 14.10.2014
State of Haryana and another
...... Appellants
versus
Shadi Lal Malik (deceased through his LRs) and others
...... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE DEEPAK SIBAL
***
Present : Mr. Ravi Dutt Sharma, DAG, Haryana.
Mr. Ashwani Talwar, Advocate,
for the respondent.
***
DEEPAK SIBAL, J.
The present is an appeal filed by the State of Haryana under Clause X of the Letters Patent challenging the order dated 16.02.2012 passed by the learned Single Judge of this Court allowing the writ petition filed by the respondent.
The facts in brevity leading to the filing of the present appeal are that Sh. Shadi Lal Malik (since deceased) (hereinafter to be referred as 'employee') joined the services of the Haryana Dairy Development Corporation (for short 'the Corporation') in April 1970, as Cashier, on regular basis. The Corporation was wholly under the administrative and financial control of the State of Haryana. Upon the formation of Haryana Dairy Development Cooperative Federation (for short 'the Federation'), the respondent-employee was transferred on deputation to the above said Federation, on 01.07.1977, as Accounts Executive. It may be useful to JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -2- observe that the Federation was also fully funded by the Government and executed schemes of both the Central Government as also the State of Haryana. There was a Model Exotic Animal Farm at Bhiwani, which was under administrative control of the Federation and the respondent-employee was posted to work in the above said Farm. Thereafter, the Board of Directors of the Corporation, vide its resolution dated 30.11.1992 transferred all the employees working in the Model Exotic Animal Farm at Bhiwani to the Animal Husbandry Department of the State of Haryana to be permanently absorbed therein. As a consequence of the resolution passed by the Board of Directors of the Corporation all the employees, including the respondent-employee, who were working at the Model Exotic Animal Farm were transferred to the Animal Husbandry Department of the Government of Haryana w.e.f. 01.04.1994. Dutifully, the respondent- employee joined the Animal Husbandry Department and it was in that Department that the respondent-employee served till the date of his retirement i.e. 31.03.1998, upon attaining the age of superannuation of 58 years.
It is undisputed before us that the service rendered by the respondent-employee remained unblemished.
The respondent-employee having retired, opted for joining the employees pension scheme but he was held not entitled to the grant of pension as according to the appellants only his service rendered by him in the Animal Husbandry Department would be taken as qualifying service for the purpose of grant of pension. Resultantly, pension was denied to the respondent-employee leading to the filing of the writ petition by him before this Court. The appellants who were respondents in the writ petition were JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -3- put to notice. In the counter filed by the State of Haryana to the writ petition preferred by the respondent-employee it was stated that the length of service of the respondent-employee as qualifying for the purpose of grant of pension is to be counted only w.e.f. 01.01.1994 i.e. when he joined the Animal Husbandry Department and since he retired from on 31.03.1998, he had rendered only 4 years of service whereas at least 10 years of service was required to qualify him for the grant of pension.
The matter was considered by the learned Single Judge of this Court and after considering the facts on record as also the law on the subject, the learned Single Judge was of the view that the writ petition filed by the respondent-employee deserved to be allowed. The learned Single Judge held that the past service rendered by the respondent-employee in the Corporation and then the Federation would have also to be counted along with the service rendered by the respondent-employee in the Department of Animal Husbandry for reckoning qualifying service for the grant of pension. After holding so, the learned Single gave the following directions:-
"The petitioner would, therefore, be entitled to the reckoning of past service with the Corporation and later with the Federation as relevant for the purpose of pensionary service with the department. At the time of reckoning of the pension, the amount paid to the petitioner towards GPF shall be adjusted with interest at the rate of 12% and the arrears shall be paid within 12 weeks from the date of receipt of copy of the order with interest at the rate of 6% from the date of filing of the petition."
Aggrieved by the judgment rendered by the learned Single Judge, the State of Haryana is in appeal before us. Learned counsel appearing on behalf of the State of Haryana has urged before us that the JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -4- service rendered by the respondent-employee in the Corporation and the Federation could not be counted towards qualifying service for the grant of pension. In this regard, he referred to Rules 3.8 and 3.12 of the Chapter III Punjab Civil Services Rules Volume II. Rules 3.8 and 3.12 are reproduced below for ready reference:-
"Rule 3.8:- Unless it be otherwise provided by special rule or contract, the service of every Government employee begins to qualify for pension when he takes charge of the post to which he is first appointed.
Rule 3.12:- The service of a Government eployee does not qualify for pension unless it conforms to the following three conditions:-
First- The service must be under Government Second- The employment must be substantive and permanent Third- The service must be paid by Government These three conditions are fully explained in the following rules.
Note.- The question whether service in a particular office or department qualifies for pension or not is determined by rules which were in force at the time such service was rendered orders subsequently issued declaring the service to be non- qualifying, are not applicable with retrospective effect."
Learned State counsel would further submit that the Corporation and the Federation were not Government Departments and therefore, the services rendered by the respondent-employee in those institutes could not be counted towards qualifying service for the grant of pension.
Learned counsel appearing on behalf of respondent-employee brought to our notice that Sh. Shadi Lal Malik had since expired and the counsel had moved an appropriate application to bring his legal heirs on JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -5- record. Through an order of even date, we have allowed the legal representatives of Sh. Shadi Lal Malik to be brought on record. Learned counsel for the respondent-employee would submit that the service rendered by Sh. Shadi Lal Malik in the Corporation and the Federation is liable to be counted towards qualifying service for grant of pension. According to learned counsel this was so because both the Corporation and the Federation were wholly under the administrative and financial control of the Government of Haryana and therefore the distinction being drawn by the State of Haryana between the services rendered therein and in the Animal Husbandry Department was arbitrary and thus, liable to be ignored.
We have considered the arguments raised by both the parties and have with their able assistance have gone through the record of the case.
The facts as enumerated above show that the respondent- employee joined the Corporation in April 1970. Thereafter, he was transferred on deputation to the Federation on 01.07.1977. On 30.11.1992, the Board of Directors of the Corporation passed a resolution transferring all employees including the respondent-employee to the Animal Husbandry Department. In pursuance to his resolution, he joined the Animal Husbandry Department on 01.04.1994 and then on attaining the age of superannuation retired from service w.e.f. 31.03.1998. It is undisputed before us that both the Corporation and the Federation are full administered and fully funded by the State of Haryana. Both the Corporation and the Federation were only executing schemes on behalf of the Government of Haryana as also the Central Government.
In view of this fact it is difficult for us to accept the submission of the State of Haryana. The State of Haryana having created the JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -6- Corporation and the Federation to execute its own scheme and the Corporation and the Federation being fully under the control of the State, both financially and administratively, no distinction could be allowed to be drawn between employees of the Corporation/Federation viz-a-viz Government employees, particularly for the purpose of counting their service towards qualifying service for the grant of pension. According to us, any such classification/distinction would be hit by Article 14 of the Constitution of India. If the stand taken by the State of Haryana is to be accepted, that would mean that 24 years of unblemished service of the respondent-employee would be washed and resultantly, his widow and other family member would not get pension. Once, it is admitted that both the Corporation and the Federation fully owned by the State of Haryana and under its administrative control and then it is not open to the State of Haryana to draw an artificial distinction as suggested by the counsel for the appellant-State. According to us, the distinction drawn being arbitrary and violative of Article 14 of the Constitution of India deserves to be ignored. For the reasons given hereinabove, the reliance of the State of Haryana on Rules 3.8 and 3.12 of the Chapter III of the Punjab Civil Services Rules is misplaced.
The view expressed by us, finds support from several judgments of this Court, some of which can usefully be referred to hereinafter. In Jai Parkash vs. The State of Haryana and others -CWP No.17343 of 2007 (Decided on 28.11.2008) following issue came up for consideration before a Division Bench of this Court:-
"The issue involved in this case is whether the petitioner is entitled to treat his services with the Haryana State Minor JYOTI SHARMA 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -7- Irrigation and Tubewells Corporation Ltd. (hereinafter referred to as the Corporation) as availing to be treated as continuous service with the number of years of service at the Department of Prohibition and Excise Commissioner The answer to this is sought in the context of the entitlement of the petitioner to the pensionary benefits by counting the total number of years of service both the Corporation and the Department."
After considering the law on the subject and relying upon the judgment of Apex Court in Gurmail Singh and others vs. State of Punjab and others reported as 1992(7) SLR 744, the Division Bench allowed the writ petition filed by the employees holding that the services rendered by the employees in a Corporation fully funded and administered by the State of Haryana are to be counted with the number of years of service rendered by them in a Department of the Government to consider their eligibility for the grant of pension. This Court in Vijay Laxmi and others vs. State of Punjab and others 1994(2) RSJ 502, while dealing with a situation where the past service rendered in a Government Corporation was recognized for the purpose of pay when the person was absorbed in Government service has held that once the past service was recognized for the purpose of pay, there would no justification for denying the same benefit towards pension. In the case in hand also, it is undisputed before us that the respondent- employee's pay had been protected and he was placed in a appropriate pay scale at the time of his absorption in the Animal Husbandry Department. The Apex Court in Gurmail Singh and others vs. State of Punjab and others 1992(7) SLR 744 while dealing with the case of continuity of service for the purpose of seniority of employees who were earlier working in a JYOTI SHARMA State Corporation and later had joined the State Department, through proper 2014.10.17 11:58 I attest to the accuracy and authenticity of this document Chandigarh LPA No.604 of 2013 (O&M) -8- channel, has held that those employees would be entitled to the benefit of continuity of service. Applying the same logic, the respondent-employee would be entitled to count the service rendered by him in the Corporation and the Federation towards qualifying service for the grant of pension.
In view of the above, we find no merit in the appeal and the same is, therefore, dismissed but with no order as to costs.
(SATISH KUMAR MITTAL) (DEEPAK SIBAL)
JUDGE JUDGE
14.10.2014
Jyoti 1
JYOTI SHARMA
2014.10.17 11:58
I attest to the accuracy and
authenticity of this document
Chandigarh