SURINDER NATH KESAR versus BOARD OF SCHOOL EDUCATION & ORS. on 6 January 2020

1. This appeal has been filed against the judgment dated 21.05.2015of High Court of Punjab & Haryana by which LPA No.1747 of 2014filed by the appellant has been dismissed. LPA was filed by the appellantchallenging the judgment of learned Single Judge dated 20.04.2013 inCivil Writ Petition No. 3037 of 2003 by which judgment learned SingleJudge had dismissed the writ petition filed by the appellant praying forgrant of pension by adding interruption of service between 01.02.1988to 03.08.1994.

2. Brief facts of the case necessary to be noticed for deciding thisappeal are:- 2.1The appellant was initially appointed by Board of SchoolEducation, Haryana, Bhiwani (hereinafter referred toas “Board”) on 08.05.1970 on the post of ProofReader. The appellant due to his family circumstancesvoluntarily retired on 01.02.1988. The appellantsubmitted a representation to the Education Ministerof Haryana. The Education Minister, Haryana videhis letter dated 27.03.1993 forwarded the applicationof the appellant recommending consideration of hiscase for re-appointment on humanitarian ground aftertreating the period of absence without pay even if theRules have to be relaxed. The Board keeping intoview the recommendation of the Education Ministerresolved on 31.05.1994 granting sanction to reappointthe appellant afresh. It was observed that for giving A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

the benefit of past service, the opinion of theGovernment be obtained. A fresh appointment orderdated 25.07.1994 was issued to the appellant forappointment on the post of Proof Reader in the pay-scale of Rs.1400-2600, in pursuance of which, theappellant joined on 03.08.1994. On 05.12.1994,Secretary of the Board wrote to the Secretary ofGovernment of Haryana, Education Departmentseeking clarification on benefit of past service to theappellant. On 05.12.1994, the respondent No.4 clarifiedthat past service of appellant could only be countedfor the purpose of seniority and pension after givingthe benefit of continuity in service and the period ofhis break be treated as leave without pay. The Boardvide its resolution dated 31.05.1995 decided to condonethe period from 02.02.1988 to 02.08.1994 by treatingthe same as leave without pay for continuity of servicefor the purpose of pension and seniority. The FinancialCommissioner & Secretary, Haryana Government,Education Department wrote a letter dated 27.05.1997regarding giving the benefit of past service to theappellant. The letter referred to Rule 4.23 of PunjabCivil Services Rules Volume II (hereinafter referredto as “PCSR”) which states that period of interruptionof one year can be condoned for giving the benefit ofpension and whereas in the case of the appellant, theperiod of six years is condoned for the purpose ofpension. Clarification was asked for in the aboveregard.

2.2The Board asked the appellant on 04.02.1998 to depositalongwith interest upto 31.03.1998 amount with regardto gratuity, provident fund, leave encashment etc. asreceived by him consequent to voluntary retirement.On 18.01.1999, the Director, Local Audit, Haryanawrote to the Secretary of the Board that Rule 4.22 ofPunjab Civil Services Rules Volume II is not attractedand relevant rule is 4.23, which rule only authorisedcondonation of break of service upto one year duration.

The condonation can only be made by competentauthority in relaxation of provisions of Rule 4.23 ofPCSR. On 15.05.2000, the appellant deposited theamount with interest upto 31.03.1998. The Director,Secondary Education vide letter dated 24.08.2000referring to audit objections requested for obtainingrelaxation in Rule 4.23 of PCSR from FinanceDepartment through Commissioner and SecretaryHaryana Govt. Education Department.

2.3On 24.08.2001, Director, Secondary Education, Haryanawrote to the Secretary of the Board that FinanceDepartment has declined to accept the proposal andhas suggested that the pay of the employee be fixedunder Foot Note 6 of Rule 7.18 of PCSR. The Boardasked the appellant to deposit interest upto 31.12.2001,which was deposited on 04.01.2002. The appellantretired on 31.05.2002. After retirement certainretirement benefits were paid to the appellant, whichwere accepted with protest. On 02.08.2002, appellantsubmitted a representation to Board claiming pension.On 26.11.2002, the appellant was informed that as perFinance Department and as per pension rules he hasalready been paid the benefits, which were due to youon account of re-employment.

2.4In July, 2002, the appellant had received the retirementbenefits including the amount, which was depositedby the appellant. Civil Writ Petition No.3037 of 2003was filed by the appellant claiming pension and otherbenefits of service for the period service from08.03.1970 to 31.01.1988 and for addition ofinterruption of period from 02.02.1988 to 02.08.1994in his service. Learned Single Judge referred to Rule4.23 of PCSR. Learned Single Judge took the viewthat as per Rule 4.23 if the break in service has beenoccasioned on account of resignation, dismissal orremoval, the period of interruption of service cannotbe condoned. Learned Single Judge further observed AB

CD

E

FG

H

SUPREME COURT REPORTS

A

B

that even the order of appointment is a freshappointment order, it is not possible to compute twodifferent spells of service as a single service. A reviewpetition was filed by the appellant, which too wasrejected on 22.11.2013. The learned Single Judge whilerejecting the review petition also observed that Clause4.22 of rules is also not attracted. The appellant,therefore, filed a LPA before the Division Bench, whichhas been dismissed on 21.05.2015, against which, thisappeal has been filed.

C3. Learned counsel for the appellant in support of appeal contendsthat under Rule 4.23 what is not condonable is only in cases where theinterruption has been caused by resignation, dismissal or removal fromservice or due to participation in a strike. He submits that appellanthaving voluntary retired, which is not covered in the definition ofresignation as mentioned in Rule 4.23, he is entitled for automaticDcondonation of interruption between 02.02.1988 till 02.08.1994. It isfurther submitted that the Board having passed resolution for condonationof the aforesaid period and in consequence of which the appellant hasdeposited the gratuity, provident fund and leave encashment amount,which was received by him at the time of voluntary retirement, theErespondents could not have denied the benefit of adding the interruptionperiod for computing the pension. Resolution was passed by the Boardon 31.05.1994, which could not have been legally reviewed after fiveyears. He submits that the appellant is entitled for the benefit of Rule4.23 of PCSR.F4. Learned counsel for the State refuting the submission of the

F4. Learned counsel for the State refuting the submission of theappellant contends that Rule 4.23 as relied by the appellant is not therelevant rule, which is applicable in the State of Haryana. Referring tothe counter affidavit, learned counsel submits that in the counter affidavit,Annexure R-1, the relevant clause, i.e. Rule 4.19, 4.20, 4.21, 4.22 and4.23 as applicable in the State of Haryana has been filed. He submitsGthat Rule 4.23 sub-rule (3) provides that interruption should not be ofmore than one year’s duration and in the present case, interruption beingof more than six years, Rule 4.23 does not help the appellant. He furthersubmits that appellant having accepted voluntary retirement on 01.02.1988and having joined again on 03.08.1994 as a fresh appointment, the earlierHperiod cannot be added for the purpose of pension.

5. This Court by order dated 09.12.2019 noticed the difference inRules 4.22 and 4.23 of PCSR Volume II as claimed by both the parties.This Court directed the learned standing counsel to produce the copy ofthe gazette containing the relevant rules which were in existence at therelevant time. During the course of submissions, learned counsel for theState has produced before us Punjab Civil Services Rules Volume II asapplicable in the State of Haryana. The book also contains theamendments, which were issued in the Rules by the Finance Department,Haryana between 01.01.1969 to 29.02.1992. The provisions of Rules4.22 and 4.23 are same as have been filed as Annexure R-1 in thecounter affidavit of the respondents. It appears that both learned SingleJudge and Division Bench has referred to Rules 4.22 and 4.23 of PunjabCivil Services Rules Volume II, which were not the rules applicable inthe State of Haryana.

6. We have no reason to doubt the authenticity of the book, whichhas been produced by the learned counsel for the State of Haryana,which contains the provisions of Rules 4.22 and 4.23 as applicable in theState of Haryana as Annexure R-1. We may also notice the Rules 4.22and 4.23 of Punjab Civil Services Rules Volume II as has been noticedby the Division Bench, which is to the following effect:- “4.22. – The authority which sanctions the pension may commuteretrospectively periods of absence without leave into leave withoutallowances or extraordinary leave.

4.23. - In the absence of a specific indication to the contrary inthe service record, an interruption between two spells of servicerendered under the State Government shall be treated asautomatically condoned, and the pre-interruption service shall betreated as qualifying service for pension purposes, except wherethe interruption has been caused by resignation, dismissal orremoval from service or due to participation in a strike, but theperiod of interruption itself shall, under no circumstances, bereckoned as qualifying service for pension purposes.”

7. A perusal of the material on record including the letter dated27.05.1997 written by Financial Commissioner & Secretary, HaryanaGovernment, Education Department, Chandigarh (Annexure P-9) indicatethat the reference has been made to Rule 4.23 providing that maximumperiod of interruption of one year can be condoned. To the same effect A

B

C

D

E

F

G

H

Ais letter dated 18.01.1999 written by the Director, Local Audit, Haryana,Chandigarh (Annexure P-11), paragraph 2 of which is as follows:-

“2. The period between the date of voluntary retirement, i.e.,1.2.88 to the date of fresh reappointment of the incumbent on thesame post in the Board i.e. 3.8.94, cannot be treated as period ofBabsence without leave and as such rule 4.22 of CSR Vol. II is notattracted in the case. The period rather denotes the break/interruption in service is rule 4.23 of CSR Vol. II. Even this ruleauthorise condonation of Break/Interruption upto one year durationin the normal course and in the instant case, the period of break inservice being six years, six months and one day. The condonationCcan only be made by the competent authority in relaxation ofprovisions of rule 4.23 of Punjab CSR Vol. II. Hence you areadvised to act accordingly.”

8. From the above it is clear that Rule 4.23 which is applicable tothe State of Haryana is one which has been brought on the record asDAnnexure R-1 in the counter affidavit. Rules 4.22 and 4.23 are quotedbelow:- “4.22 The authority which sanctions the pension may commuteretrospectively periods of absence without leave into leave withoutallowances or extraordinary leave.

E

4.23 Interruption in service either between two spells of permanent,or temporary service or between a spell of temporary service andpermanent service or vice versa in the case of an officer retiringon or after the 5th January, 1961, may be condoned, subject to thefollowing conditions, namely:- F

(1) The interruption should have been caused by reasons beyondthe control of Government employee concerned.

(2) Service preceding the interruption should not be less thanfive years’ duration. In cases where there are two or moreinterruptions, the total service, pensionary benefits in respectGof which shall be lost if the interruptions are not condonedshould not be less than five years.

(3) The interruption should not be of more than one year’sduration. In cases where there are two or more interruptions, H

SURINDER NATH KESAR v. BOARD OF SCHOOLEDUCATION & ORS. [ASHOK BHUSHAN, J.]

the total period of all interruptions to be condoned shouldnot exceed one year.”

9. We may refer to a judgment of Punjab & Haryana High Courtin which it had occasion to consider Rule 4.23 of PCS Rules as applicablein Haryana, i.e., in Subedar Harpal Singh, Retd. Vs. State of Haryanaand Another, (1994) 1 SLR 436. In the above case, Rule 4.23 ofPCSR as appliable in case of an employee in Haryana is quoted inparagraph 3 of the judgment. In the above case also, the petitioner’scase was held not covered by Rule 4.23. paragraph 3 of the judgment isas follows:- “3. Admittedly, the case of the petitioner does not fall in any ofthe exception, Rule 4.23, however, deals with condonation ofinterruption in service and reads thus:- “Interruption in service (either between two spells of permanent,or temporary service or between a spell of temporary service andpermanent service or vice versa in the case of an officer retiringon or after the 5th January, 1961, may be condoned, subject to thefollowing conditions, namely:-

(1) The interruption should have been caused by reasonsbeyond the control of Government employee concerned.

(2) Service preceding the interruption should not be less thanfive years’ duration. In cases where there are two or moreinterruptions, the total service, pensionary benefits inrespect of which shall be lost if the interruptions are notcondoned should not be less than five years.

(3) The interruption should not be of more than one year’sduration. In cases where there are two or moreinterruptions, the total period of all interruptions to becondoned should not exceed one year.”

As the service of the petitioner preceding the interruption wasless than five years, the break cannot be condoned in terms ofthis rule. No other provision was brought to my notice on thebasis of which the break can be condoned so as to entitle thepetitioner to claim pension after counting his previous service inthe Industries Department.”

A

B

C

D

E

F

G

H

A10. Rule 4.23 does not permit condonation of interruption of morethan one year’s duration, hence the case of the appellant was not coveredunder Rule 4.23. It was due to this reason that a letter was written bythe Government for obtaining relaxation under Rule 4.23. In letter dated24.08.2000 of Director, Secondary Education Haryana, Chandigarh(Annexure P-15) it was provided that relaxation be obtained in RuleB4.23 of Punjab Civil Services Rules Volume II from Finance Departmentthrough Commissioner and Secretary, Haryana Govt. EducationDepartment. In letter dated 24.08.2000, following was stated:- “As such in view of the audit objection you are requested to kindlyobtained relaxation in Rule 4.23 of Punjab CSR Vol. II fromCFinance Department through Commissioner and SecretaryHaryana Govt. Education Department and the same may be sentto this office.”

11. The relaxation from Rule 4.23 as claimed by the appellantwas not acceded to by the Government, which was communicated byDletter dated 24.08.2001 of Director, Secondary Education Haryana,Chandigarh. It is useful to extract the said letter, which has been broughton record as Annexure P-16, which is to the following effect:- “From Director,E

Secondary Education Haryana,Chandigarh.

To,

Secretary,

FBoard of School Education Haryana,Bhiwani.

Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001

Subject :Regarding granting of benefit of past service to Sh.Surinder Nath Kesar, Proof Reader.

GWith reference to your letter No.334-35 dt. 31.07.2001 on thesubject noted above.

In this matter the Finance Department has declined to acceptthe proposal of this Department and has suggested that the pay ofthe employee be fixed under Foot Note 6 of Rule 7.18 of CSRHVol. II.

Sd/-

Assistant Director Schools-1for Director Secondary Education Haryana, Chandigarh.”

12. From the above, it is clear that the case of the appellant wasnot covered by Rule 4.23 and further the request for granting relaxationby the Government from Rule 4.23 was not acceded to. When the Statehas refused to grant relaxation in the rule, the refusal by the respondentfor adding the period of interruption for pensionary benefit cannot befaulted.

13. Insofar as the submission of the learned counsel for theappellant that Board has resolved to condone the interruption and it wasonly after five years, the claim is denied by the Government, it is relevantto notice that in the resolution of the Board dated 31.05.1994, it wasprovided that regarding giving benefit of the past service, the opinion ofthe State Government be obtained. Further, although the Board passedresolution on 31.03.1995 to add the period subject to appellant depositingthe provident fund, gratuity and leave encashment, the amount sought tobe deposited in pursuance of the resolution of the Board was not accepteddue to certain audit objection and when the appellant deposited the amounton 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23since the appellant’s case for condonation of interruption was not coveredby Rule 4.23. The Government having subsequently refused therelaxation in Rule 4.23, the benefit was denied. Insofar as letter dated27.05.1997 from Financial Commissioner & Secretary regarding givingthe benefit of past service, it was also mentioned that the case is notcovered by Rule 4.23 PCSR Volume II and clarification was called fromthe Board. Letter dated 05.12.1994, which was also a letter from FinancialCommissioner & Secretary was based on Rule 4.22, which mentionedthat period of break in service of the appellant be condoned which canonly be treated as leave without pay, which can only be counted forseniority and pension. The said letter cannot come to the rescue of theappellant since it did not refer to Rule 4.23, which was relevant and Rule4.22, which referred to interruption in period of absence and the periodfrom 02.02.1988 to 02.08.1994 was not period of absence but was aperiod when the appellant had already taken voluntary retirement, thesaid letter also does not come to rescue of the appellant. Furthersubsequent correspondences with the Board and the Government clearly A

B

C

D

E

F

G

H

Aindicate that rule, which was relevant was Rule 4.23 as applicable in theState of Haryana and the proposal for relaxation from Rule 4.23 wasnot acceded to by the Government as communicated by Director ofSecondary Education Haryana by letter dated 24.08.2001.

14. At no stage, the Government condoned the interruption betweenB02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissedthe writ petition, which judgment has been affirmed by the Division Benchbut High Court having not considered the relevant rule, i.e., Rule 4.23 asapplicable in the State of Haryana, which rule, we have noticed above,the dismissal of the writ petition has to be sustained but on the reasonsas given above.

C

15. When the Statute does not permit condonation of interruptionof period from 02.02.1988 to 02.08.1994 and the proposal for grantingrelaxation in Rule 4.23 had been refused, we cannot find any fault in thedecision of the respondent refusing to grant the benefit of condonationby adding the earlier period. The appellant’s period after fresh appointmentDfrom 03.08.1994 being less than qualifying service of 10 years, he wasnot entitled for pension.

16. In view of the foregoing discussions, we are of the view thatthe appellant is not entitled for any relief in this appeal. The appeal isdismissed.

E

Kalpana K. Tripathy

Appeal dismissed.

F

G

H