Punjab-Haryana High Court
Rajeshwar Aggarwal vs State Of Haryana & Anr on 4 November, 2014
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CWP No.7725 of 2013 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.7725 of 2013
Date of decision: 04.11.2014
Rajeshwar Aggarwal
...Petitioner
Versus
State of Haryana and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
***
Present:- Mr. R. K. Malik, Senior Advocate, with
Mr. Heman Aggarwal, Advocate,
for the petitioner.
Mr. K. S. Bhatia, Addl. AG, Haryana.
***
Amol Rattan Singh, J. (Oral)
1. Learned counsel for the petitioner submits that the matter in issue is already settled by various judgments of this Court including Ram Lubhaya Khanna and others vs. State of Punjab and another 2007(3) SCT 780 and Smt. Veena Shashi vs. State of Haryana and others (CWP No.4466 of 2006). (A copy of the latter judgment is annexed as Annexure P-16 with the present petition).
2. The issue involved in this petition is as to whether the service rendered by the petitioner in a private, Government aided college, prior to service in the college from which he retired, is to be counted towards pensionary benefits or not, in view of the fact that no contribution was made by the college, DINESH or by the government, towards the contributory provident fund, during the 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 2 former period of service.
3. Learned counsel for the petitioner submits that though the petitioner had initially joined a college in Punjab in 1965 and continued working till 1971, he is not claiming any relief qua the said period, but thereafter, he joined service as a Lecturer in Maharaja Agarsain College, Jagadhri, w.e.f. 01.07.1971, where he continued working till 04.06.1975, after which he joined as Principal of Indira Gandhi National College, Ladwa, on 05.06.1975. It is not disputed that both the colleges are aided to the extent of 95% grant-in-aid given by the Government.
Both the abovesaid appointments are stated to have approved by the concerned Universities, i.e. Punjab University, Chandigarh and Kurukshetra University, Kurukshetra, respectively.
4. The petitioner continued in regular service as Principal at the college at Ladwa up till his retirement on 30.11.1998.
Deduction towards provident fund is stated to have been effected from his salary from 05.06.1977, though, learned Senior Counsel submitted, that in the absence of any Service Security Act, the amount was deducted as per the whims and fancies of the college management.
5. The Haryana Affiliated Colleges (Pension and Contributory Fund) Rules, 1999 were notified on 31.05.1999 and were deemed to have came into force w.e.f. 11.05.1998, as per Rule 1(2) of the said Rules.
Thus, though the said Rules were notified on a date after the petitioners' retirement, they came into effect about five months prior to such date and as such, the petitioners' claim is that he was fully covered under the said Rules and was entitled to pension and gratuity accordingly.
6. Various provisions of these Rules were amended vide notification dated 24.01.2001.
DINESH2015.04.20 13:37 I attest to the accuracy and
Rule 3, which is specifically relevant, after the amendment reads as integrity of this document Chandigarh CWP No.7725 of 2013 3 under:-
"3. Application.-(1) Except as otherwise provided in any rule, and subject to the condition that the Managing Committee of Aided College, executes an agreement in Form-I, duly supported by a resolution of the Managing Committee to abide by the provisions of these rules and the undertaking of the employee in Form-II and instructions, issued by the Department from time to time, these rules shall apply to all the employees, who:-
(a) are appointed to the aided sanctioned posts on or after the 11th day of May, 1998; and
(b) were working on aided sanctioned posts immediately before the 11th day of May, 1998 and continue to work as such thereafter:
Provided that the employees appointed to the aided sanctioned posts:-
(i) before the 11th day of May, 1998 who have attained or will attain the age of superannuation on or after that date (hereinafter referred to as "existing employees");
and
(ii) on or after the 11th May, 1998 and before the
publication of these rules shall have the right to
exercise option as to whether to be governed by these rules or not within a period of three months from the date of publication of these rules in the official Gazette.
(2) These rules shall not apply to:-
(i) the employees appointed on part time basis against aided sanctioned posts;
(ii) the employees appointed against the posts not
sanctioned by the Government;
(iii) the employees who retired from the sanctioned post before the 11th day of May, 1998 and the employees who attained the age of superannuation before the said date except those who have been given extension by DINESH the Department after the age of superannuation on 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 4 sanctioned posts; and
(iv) the employees employed on a leave gap arrangement, or on adhoc basis, or on contractual basis."
Thus, as per proviso (ii), as inserted on 24.01.2001, those employees who superannuated after 11.05.1998, but before publication of the Rules, i.e. 31.05.1999, were to exercise their options as to whether they wish to govern by these rules or not, within a period of three months from the date of publication of the Rules.
7. The petitioner is stated to have made representations on 30.07.2002, seeking grant of pension and gratuity in terms of the aforesaid Rules, on the ground that he had served for about 27 years and 4 months in the State of Haryana, but had been granted less pension/gratuity whereas those who had served for a lesser period had been granted higher emoluments. Thereafter, he served a legal notice on the 1st and 2nd respondents with regard to the same relief, claiming a balance amount of Rs.1,05,329/- as gratuity, plus interest thereupon for delayed payment, as also higher pension. The petitioners' claim was stated to have been rejected vide order dated 13.09.2002 which led to the filing of CWP No.16672 of 2002 by him, which was dismissed on 07.08.2008. During the course of arguments in that case, it seems that the counsel for the petitioner had restricted his prayer for grant of benefit with regard to service in Haryana only and at that stage itself, had given up his claim for counting his service in a private Government aided college in Punjab.
The judgment dated 07.08.2008 (Annexure P-10) further holds that since the petitioner had not deposited any Provident Fund while in service in Maharaja Agarsen Mahavidyalaya, Jagadhri, hence, there was no account of a Contributory Provident Fund in the name of the petitioner in that college, and DINESH therefore, no account was transferred to the next college, where he joined and 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 5 from where he retired, i.e. the Indira Gandhi National College, Ladwa.
A further reading of the said judgment shows that the petitioner, vide the impugned order/letter dated 13.09.2002, was advised that if he submits his claim in terms of Rule 6 (iv) of the Rules, his case would be considered. However, despite two reminders issued to him on 25.11.2002 and 17.12.2002, he did not submit his claim. The petitioner had only based his claimed on a letter dated 12.11.1974 (annexed with the earlier petition) addressed by the Assistant Registrar (presumably of the Kurukshetra University) to the Principal of the Maharaja Agarsen Mahavidyalaya, Jagadhri, seeking explanation of the Principal as to why Provident Fund was not being deducted. However, the receipt of the said letter was denied by the respondents in reply to that petition. Consequently, a co-ordinate Bench hearing that case, did not go into that disputed question of fact.
8. Other than that, the petitioners' case was rejected on the ground that as per Rule 2(j) of the 1999 Rules, qualifying service would only be taken into account with effect from the date when an employee started contribution towards the Contributory Provident Fund and as such, since there was no contribution to such fund by the petitioner prior to 05.06.1977, i.e. about two years after he joined the college at Ladwa, it was held that service prior thereto cannot count for grant of pension.
9. Upon dismissal of the said petition, along with CWP No.16672 of 2002, which was filed by the petitioner seeking gratuity on the same grounds, he filed L.P.A. Nos.1470 and 1471 of 2011, wherein it was pleaded before the Division Bench, that subsequent to the writ petition, the respondents had issued a memo dated 28.11.2011 (presently Annexure P-12 annexed with the petition), on the subject of counting of past service rendered in Government Aided DINESH Schools/Colleges before they were taken over or before appointment of an 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 6 employee in a Government establishment.
10. The appeal was, consequently, disposed of with a direction that the respondents take a decision as to whether the case of the petitioner (appellant in those appeals), was covered by the said circular dated 28.11.2011, giving the petitioner liberty to challenge any decision taken against him. (A copy of the judgment is annexed as Annexure P-13 with the petition).
Thereafter, the impugned order dated 30.11.2012 (Annexure P-15) has been passed by the Director General, High Education, Haryana, again rejecting the claim of the petitioner, stating therein that he is not covered by the instructions dated 28.11.2011 and does not fulfil the terms and conditions of the 1999 Rules, amended in 2001. Other than reiterating the reason for rejection on account of Rule (2)(j) of the 1999 Rules, read with Rule 6(iv) thereof, the order states that the instructions dated 28.11.2011, are applicable only to those employees who were working in aided establishments before appointment in Government institutions and as such, (impliedly, though not specifically stated in the order), since the petitioner was not working in a Government institution at any stage, but only in an aided college, the said instructions would not apply to him.
Rules 2(j) and 6 are reproduced hereinunder:-
"2(j). "Qualifying service" means the service that qualifies for pension under these rules. It shall be reckoned in terms of completed half years, provided that the fraction equal to three months and above shall be treated as completed half year. However, the qualifying service will be taken into account with effect from the date an employee starts contribution towards Contributory Provident Fund."
"6. Qualifying Service.-- The Service of an employee shall qualify for retirement benefits under these rules as under:-
DINESH (i) The service rendered on attaining the age of 18 years 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 7 on approved post admitted for grant-in-aid.
(ii) The service rendered uptill the attainment of superannuation age of sixty years;
(iii) The leave admissible under the Haryana Affiliated Colleges (Security of Service) rules, 1979 and under instructions issued by the Government from time to time, excluding the leave without pay and period of suspension, overstayal of leave not subsequently regularised and period of break in service.
(iv) Service rendered in one or more private affiliated colleges, receiving grant-in-aid under the same management.
(v) Service rendered on aided sanctioned post in any aided college in the State of Haryana.
Provided that the official has been appointed through proper channel on aided sanctioned post and the approval of continuity of service has been obtained from the Director:
Provided further that the Contributory Provident Fund account of the employee in the previous college continued as such in the subsequent college to which he is transferred or appointed and there is no break in service or the service condition as modified by the Government from time to time."
11. Mr. Malik, learned Senior Counsel, further relied upon a Division Bench Judgment of this Court in Smt.Veena Shashis' case (supra) (CWP No.4466 of 2006, decided on 01.12.2006), which case also related to grant of pension and gratuity, after considering the services rendered by an employee in three private aided colleges two of which seem to have a common management, but the last one, from which the petitioner in that case retired, had a different management.
Though Rule 2(j) was obviously not brought to the notice of the Division Bench, Rules 6 (iv and v), as also Rule 8 of the 1999 Rules, were considered by the Division Bench and the petition was eventually allowed DINESH 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 8 holding that the period of service rendered in the first college that the petitioner (in that petition) served, i.e. the Dev Samaj College for Girls, Ambala City, from 16.07.1969 till 1980, would also be considered as qualifying service for the purposes of pension, with a further direction that the payment received by that petitioner, from the Contributory Provident Fund, be refunded by her to the respondents.
The S.L.P. filed by the State against the said judgment, was dismissed by their Lordships, with a modification to the effect that the condition of refund of Contributory Provident Fund be adjusted as per Rule 17(3) of the 1999 Rules. (The said rule provides for adjustment of the employees' share of the Contributory Provident Fund already drawn by the employee, together with interest accrued thereon, against the amount of gratuity or arrears of pension that may be admissible to the employee, in cases where the employee/his legal heirs are not in a position to refund the same in cash. As per the rule, the said amount would be adjusted with 12% interest on the amount actually drawn by the employee, further providing that if there still remains any amount due, it would be adjusted by non-payment of pension till recovery of the total amount is adjusted).
Other than the above, Mr. Malik further placed reliance on another judgment of a Division Bench in Ram Lubhaya Khanna and others vs. State of Punjab and another (supra), wherein the following paragraph from another Writ Petition (CWP No.13831 of 2005, Gurmeet Singh vs. State of Punjab and others, decided on 08.05.2007), was also quoted, the relevant part of which, in the present context reads as under:-
"Likewise, the objection with regard to deposit the Contributory Provident Fund deduction w.e.f. 1.4.1972 would also not be of any consequence. Firstly, the Scheme itself had come into force in the DINESH 2015.04.20 13:37 I attest to the accuracy and integrity of this document year 1987. Secondly, the Contributory Provident Fund amount of Chandigarh CWP No.7725 of 2013 9 Rs.99,661/- withdrawn by the petitioner has already been deposited back on 30.06.2004 along with interest, amounting to Rs.1,17,317/."
12. Mr. Bhatia, learned Additional Advocate General, Haryana, on the other hand, referred to the reply filed by the respondents, to submit that firstly, the petitioner has been paid all that he was entitled to in terms of Rule 2(j) of the 2001 Rules and further, that the instructions dated 28.11.2011 are not applicable to the petitioner as they are only applicable to those employees who were working in Government aided institutions, prior to their appointment in a Government institution.
He further submitted that the directions issued by the Division Bench in LPAs No.1470 and 1471 of 2011 have been complied with, inasmuch as the petitioners' case has been considered and rejected vide the impugned order.
When the judgment in Shashi Parbhas' case was pointed out to learned State counsel, he again relied upon the reply of the respondents to submit that the said judgment would not be applicable and further submitted that this would be so in view of the subsequent instructions dated 28.11.2011.
Learned State counsel, therefore, prayed for dismissal of the writ petition.
13. Having heard rival submissions on both sides and having gone through the pleadings before this Court, I am not inclined to agree with the submissions made on behalf of the State, for the reasons given hereinafter.
14. Though the facts of the present case are not identical to those of CWP No.4466 of 2006, to the extent that in the present case, there was no contribution at all to the Provident Fund by the 1st employer, so as to make him eligible as per Rule 2(j) of the aforesaid Rules, for grant of pensionary benefits DINESH as are given in Rule 5 thereof, however, Mr. Malik, further relied upon a 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 10 judgment of a co-ordinate Bench in the case of Vandana Batra vs. State of Haryana and another (CWP No.3405 of 2012), decided on 09.08.2012, wherein it was held that the contention of the respondents, that the period during which no Provident Fund was deducted, cannot be treated as service countable towards pension, does not hold good in the light of the fact that the responsibility to deduct and deposit the employees' as well as employers' shares is on the employer/management, for which the employee cannot be penalised and put to a disadvantage. Consequently, it was directed that upon the petitioner in that case depositing the contributory share of the management to the CPF with 10% annually compounded interest, in lumpsum in the Government Treasury, the respondents would grant the benefit of past service rendered, prior to the petitioner joining Government service, in terms of the Governments' circular dated 28.11.2011.
15. In the present case, though the said circular has been held, vide the impugned order, not to be applicable to the case of the petitioner, in view of the fact that he never joined Government service after private service, I do not see how the petitioner or persons similarly placed can be denied the same on the touch-stone of the ratio of the judgment in Veena Shashis' case (supra), wherein also the petitioner had never rendered service in any Government institution, but only in different aided Government institutions (as noticed earlier) but was held entitled to count past service in different colleges towards pensionary benefits.
In my opinion, the ratio of the said judgment, to the effect that even where no contribution has been made towards the CPF, the employee would still be entitled to count past service rendered for the period of non-contribution, provided he/she is willing to deposit the managements' contributory share, along with appropriate interest, would fully apply to the case of the petitioner herein DINESH also.
2015.04.20 13:37I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 11
Strangely, though the instructions dated 28.11.2011 are well after the judgment of the Division Bench in Veena Shashis' case, there is no reference to the same even though the State SLP against that judgment was dismissed, as already noticed.
The other aspect, of course, is that if these instructions are taken to be only applicable to those who joined Government service after having served in Government aided institutions, then obviously, there is no set of instructions governing the cases of those persons who simply went from one aided institution to another but never joined Government service. Obviously, the ratio of the judgment in Veena Shashis' case would apply to such cases, one of which is that of the present petitioner.
16. Hence, the arguments of Mr. Bhatia, learned Addl. AG, Haryana, made on the basis of impugned order, do not merit acceptance.
17. Keeping in view all the above, this petition is allowed and the impugned order dated 30.11.2012 is quashed.
The respondents are directed to calculate the amount of contribution to be made by the petitioner as employers' share, along with 10% per annum compound interest thereon, for the period that he served in Maharaja Agarsen Mahavidyalaya, Jagadhri from, 01.07.1971 to 04.06.1975 and the Indira Gandhi National College, Ladwa, from 05.06.1975 to 04.06.1977, i.e. the period of service of the petitioner in Government aided colleges in Haryana, when no contribution to the Provident Fund was made.
The amount so calculated be conveyed to the petitioner within two months from the date of receipt of a certified copy of this order, after which the petitioner shall deposit the said amount within a further period of two months, upon which he would be entitled to pension and other benefits contained in Rule DINESH 5 of the Rules, on the basis of his entire period of service, from 01.07.1971 till 2015.04.20 13:37 I attest to the accuracy and integrity of this document Chandigarh CWP No.7725 of 2013 12 30.11.1998.
In case he opts to have the amount to be paid by him adjusted in terms of Rule 17(3), then he would make such application within one month of the date of receipt of the order calculating the amount due from him, upon which the respondents would grant him such adjustment, by passing an order to that effect, in terms of the said Rule 17(3), within a period of one month thereafter.
No order as to costs.
04.11.2014 (AMOL RATTAN SINGH)
amit rana/dinesh JUDGE
DINESH
2015.04.20 13:37
I attest to the accuracy and
integrity of this document
Chandigarh