Punjab-Haryana High Court
M.M. Lal Bareja vs State Of Haryana And Ors. on 5 January, 1995
Equivalent citations: (1995)110PLR75
JUDGMENT G.S. Singhvi, J.
1. Petition joined service as Clerk-cum-Steno typist in the office of the Deputy Commissioner, Gurgaon, and served in that capacity between 12.7.1952 and 18.9.1967. While he was serving under the Deputy Commissioner, M/s. National Mineral Development Corporation Ltd. which subsequently came to be known as Hindustan Copper Ltd. after bifurcation, advertised a post of Senior Stenographer. The petitioner submitted his application through proper channel. He was selected for the said post of Senior Stenographer. With the object of joining the new organisation, the petitioner submitted an application before the Deputy Commissioner, Gurgaon, for being relieved. This application was forwarded by the District Development and panchayat Officer, Gurgaon, on 29.8.1967 with favourable recommendations. The petitioner also made a request for grant of extraordinary leave for three years. This request was also favourably recommended by the District Development and Panchayat Officer, Gurgaon, However, the District Authorities did not agree to the request of the petitioner for grant of extraordinary leave. In these circumstances, the petitioner submitted an application dated 1.9.1967 and prayed that in case it was not possible to grant him extra ordinary leave that letter be treated as his resignation. The petitioner was thereafter relieved on acceptance of his resignation from the service of the Government of Haryana.
2. After his retirement from the service of Hindustan Copper Ltd., the petitioner submitted application to the respondents for grant of pro-rata pension and death-cum-retirement gratuity in lieu of the service rendered by him for a period of over 15 years under the Government of Haryana. His application was favourably recommended by the Deputy Commissioner, Gurgaon, who wrote letter (Annexure P-4) dated 26.3.1991 to the Commissioner, Gurgaon, Request of the petitioner for grant of pro-rata pension and death-cum-retirement gratuity was declined by the Government vide Annexure P-5 issued by the Financial Commissioner (Revenue) and Secretary to the Government of Haryana. The petitioner once again reiterated his claim for grant of the pro-rata pension and death-cum-retirement gratuity but could not succeed in persuading the respondents to grant the same. He has, therefore, filed this petition with the plea that the action of the respondents in not paying him pension and death-cum-retirement gratuity is arbitrary and unreasonable. Petitioner's contention is that in terms of the provisions contained in the Punjab Civil Services Rules which have been ceated as applicable to the services of the State of Haryana, he has a legal right to be paid pension in lieu of the service rendered by him with the Government of Haryana and by withholding the benefit of pension and death-cum-retirement gratuity the respondents have violated his fundamental as well as constitutional rights under Articles 14, 16 and 300-A of the Constitution of India.
3. Respondents have contested the writ petition on the ground of delay and also on the ground that the petitioner is not entitled to payment of pro-rata pension or death-cum-retirement gratuity. In their reply, the respondents have pleaded that the petitioner had not applied for appointment in a different organisation through proper channel and in any case when he had resigned from the service of the Government of Haryana, he has no right to claim benefit of pro-rata pension or death-cum-retirement gratuity. In his replication, the petitioner has reiterated his claim for payment of pro-rata pension and other benefits on the ground that M/s. Hindustan Copper Ltd. is a Government of India undertaking and that there is no legal or other justification for not paying him the benefit of prorata pension and death-cum-retirement gratuity.
4. The only point which requires adjudication by the Court is as to whether the petitioner is entitled to be paid pension in lieu of the service rendered by him with the Government of Haryana prior to his joining the service of the National Mineral Development Corporation Ltd. While learned counsel for the petitioner has relied on Rule 6.1 and other rules contained in Chapter VI of the Punjab Civil Services Rules in support of the petitioner's case, learned Assistant Advocate General has relied on Rules 3.17, 5.1 and 5.2 of the Rules in support of her argument that the petitioner is not entitled to the benefit of pro-rata pension or death-cum-retirement gratuity.
5. Chapter HI of the Punjab Civil Services Rules (Volume II) specifies the service which qualifies for pension. Section II deals with conditions of qualification. Rule 3.12 lays down that service of a Government servant does not qualify for pension unless it conforms to the three conditions, namely, (i) the service is under the Government; (ii) the employment is substantive and permanent; and (iii) the service is paid by Government. Rules 3.13 and 3.14 confer power upon the competent authority to declare a particular service to be qualifying service. Rule 3.15 contains special provisions regarding the police department. Rules 3.16, 3.17 and other rules which find place in this Chapter deals with various conditions enumerated in Rule 3.12. Chapter IV contains different provisions for reckoning of service for the purpose of pension. Rule 4.19 of this Chapter deals with resignation and dismissal. Chapter V deals with different kinds of pension and conditions for their grant. Chapter VI deals with amount of pension. For the purpose of this petition, provisions of Rules 3.17 and 4.19(b) are relevant and, therefore, they are reproduced below:-
"3.17 In the case of an officer retiring on or after 5th January, 1961, if he was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of:-
(i) Period of temporary or officiating service in non-pensionable establishment;
(ii) Deleted
(iii) period of service paid from contingencies.
Note-I : In the case of a Central Government employee who is permanently transferred to Haryana Government and becomes subject to these rules under Rule 1.1 (b) of these rules, the terms 'continuous temporary service or continuous officiating service', shall include such service rendered under Central Government.
Note-2 : In case of a purely temporary Central Government employee who is permanently transferred to Haryana Government and becomes subject to these rules, the term 'continuous temporary service' includes the temporary service under the Central Government. The pensionary liability in respect of such cases shall be allocated on the length of service.
Note-3 : (a) In respect of temporary employees of the following categories who render service under the Central/State Governments prior to securing posts under the Central/State Governments on their own violation in response to advertisements or circulars, including those by Union/State Public Service Commission and who are eventually confirmed in their new posts, the proportionate pensionary "liability in respect of temporary service rendered under the Central/State Governments to the extent such service would have qualified for grant of pension under the rules of the respective Government, will be shared by the concerned Governments on a service share basis: -
(1) Those who having been retrenched from the service of Central/State Governments secured on their own employment under State/Central Government either with or without interruption between the date of retrenchments and date of new appointment.
(2) Those who while holding temporary posts under Central/State Governments apply for posts under State/Central Government through proper channel/with proper permission of the administrative authority concerned.
Explanation:- Where an employee in category (2) is required for administrative reasons for satisfying technical requirement, to tender resignation from the temporary post held by him before joining the new appointment, a certificate to the effect that such resignation had been tendered for administrative reasons and/or to satisfy a technical requirement to join with proper permission, the new "posts, may be issued by the authority accepting the resignation. A record of this certificate may also be made in his service book under proper attestation to enable him to get this benefit at the time of retirement.
The gratuity, if any, received by the Government employee for temporary service under the Central/State Governments will, however, have to be refunded by him to the Government concerned.
(b) Those employees, who while holding temporary posts under Central/State Governments apply for post under Central/State Governments direct without permission and resign their previous posts to join the new appointment under the Central/State Governments will not be entitled to bount their previous service for pension.
4.19(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.
In cases where an interruption in service is inevitable due to the two appointments being at different stations, such interruptions, not "exceeding 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 by leave due to the Government employee.
Note: The previous service of a Government employee who is transferred to a temporary appointment is forfeited by his resigning the temporary appointment and taking up another temporary appointment of his own accord."
6. A look at the above-quoted rules shows that the pension is payable even to such an employee who was holding temporary post under State Government and who may have subsequently resigned from the previous post in order to join another service under the Central or the State Government. These Rules also comprehend the grant of pension to a person who has resigned from service in order to take up another appointment and such resignation is not to be treated as resignation from public service.
7. The facts which have come on record of this case clearly show that the petitioner was permanent employee in the service of the Government of Haryana. He had applied for recruitment as Senior Stenographer in the National Mineral Development Corporation Ltd. through proper channel. After his selection, he resigned from service because the Government declined to give him the benefit of extraordinary leave. By the time he was relieved after resignation, the petitioner had rendered over 15 years of service with the Government of Haryana. In terms of Rule 4.19(b) read with Rule 3.17 his resignation cannot be treated as a resignation from public service. His service with the National Mineral Development Corporation was a service in an undertaking of Government of India and, therefore, he cannot be deprived of his right to get pension in lieu of service rendered by him under the Government of Haryana. By denying him this benefit, the respondents have clearly violated his legal rights. He is, therefore, entitled to issue a writ of mandamus.
8. For the reasons mentioned above, the writ petition is allowed. Annexure P-5 is declared illegal and is hereby quashed with a direction to the respondents to give to the petitioner the benefit of pro-rata pension and death-cum-retirement gratuity for his service of 15 years and two months under the Government of Haryana. This benefit should be given to the petitioner within a period of two months of the filing of certified copy of this order. Parties are left to bear their own costs.