Prabhu Nath Mishra v. State of Haryana & Ors.

CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. I.D. Singla, Advocate with Mr. Vivek Singla, Advocate for the petitioner. Mr. R.S. Kundu, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) The petitioner was initially engaged as a Beldar on 25.8.1971 on work charge basis in the Govt. College, Narnaul. He was regularized w.e.f.1.8.1988 and retired on 31.5.1991 on attaining the age of superannuation. Petitioner represented to the respondents for counting his entire service including the service rendered by him as work charge towards the qualifying service for payment of pensionary/retiral benefits. The claim of the petitioner was rejected. He filed CWP No. 15401 of 1991 seeking various claims including the claim of service rendered as work charge. This writ petition was disposed of vide order dated 8.10.1991 directing the respondents to consider the claim of the petitioner. On consideration, respondents have passed the impugned order Annexure P-2 rejecting the claim of the petitioner. The petitioner has accordingly, filed this petition seeking a direction for consideration of entire service including the service rendered as work charge employee towards the qualifying service for purposes of pensionary/retiral benefits. With a view to support his contention, the petitioner has referred to Rule 3.17 of the Punjab Civil CWP. No. 3120 of 1992 -2- Services Rules, Vol.II as applicable to the State of Haryana. Applicability of this very rule has been considered in various judgements of this Court. In the reply filed by the respondents the plea taken is that the impugned order (Annexure P-2) has been passed in accordance with law. The impugned order has been passed by the Principal, Govt. College, Narnaul. He has reproduced the directions of this Court contained in the order dated 8.10.1991 passed in CWP No. 15401 of 1991. The record of the aforesaid case was summoned. In view of the fact that the directions noticed in the impugned order are different than the directions referred to in the writ petition. I have perused the record of CWP No. 15401 of 1991. The said writ petition was disposed of by a Division Bench of this Court simply directing the respondents to examine the claim of the petitioner and decide the same by passing a speaking order. I fail to understand how the Principal has quoted altogether different kinds of directions in the impugned order. This is sufficient to show total non-application of mind or willful action on the part of the Principal. Be that as it may. Rule 3.17-A provides for counting of all uninterrupted or continuous service followed by confirmation as the qualifying service under different situations enumerated in the aforesaid rule. Under Rule (f) (i) half of the service is to be counted for the same purpose. Mr. Singla, learned counsel for the petitioner has referred to a judgement of this Court reported as 1998(1) RSJ 671 titled as Joginder Singh Vs. The State of Haryana and others. Clause (i) of (f) of Rule 3.17-A has been quashed by this Court. The relevant observations are as under:- CWP. No. 3120 of 1992 -3- “ It will be evident from the aforesaid rule that it provides for the method by which the qualifying service is to be determined. Sub Clause (i) of Clause (f) of rule 13.7-A of the said Rules provides that even persons paid from contingencies are entitled to count half of their service as qualifying service provided the four conditions laid down in sub clause (i) are fulfilled. It is the admitted position that the petitioner had worked for about 23 years in the respondent department but for two breaks that were not due to any default on his part. It will also be seen that the stipulation in sub clause (i) that half the period of service is to be counted towards qualifying service is to be read along with the subsequent four conditions in the same rule. These conditions read together clearly show that a person claiming qualifying service should have been working as whole time employee against a job for which a regular post should have been sanctioned with the payment of salary being made on a monthly or daily basis and that the service paid from contingency should have been continuous and without any break. To my mind, the facts of the case clearly spell out that the petitioner fulfilled these four conditions. I am also of the opinion that the stipulation, in sub clause (i) of clause (f) of rule 3.17-A that only half the period of service is to be counted as qualifying service is arbitrary and no logic or reason can be spelt out in it.” In another judgement reported as 2009 (2) SCT 522 a Coordinate Bench of this Court considering the mandate of rule issued following directions:- “ Accordingly the present petition is allowed. Order, Annexure P.5, dated 18.10.2002, is quashed. The respondents are directed to count service of the petitioner, rendered by him as a daily wager towards CWP. No. 3120 of 1992 -4- qualifying service and as a consequence thereof, the petitioner is entitled to pension and as such pensionary benefits shall also be released in his favour. The entire exercise shall be completed within a period of six months from the date a certified copy of this order is received.” In view of the above settled legal position the claim of the petitioner to count the service rendered as contingent paid employee has to be counted for purposes of grant of pension. This petition, accordingly, succeeds. The impugned order is hereby quashed and respondents are directed to count the service rendered by the petitioner w.e.f. 25.8.1971 to

31.5.1991 as qualifying service for purposes of grant of pensionary/retiral benefits. Let the entire retiral benefits be calculated and released within a period of 4 months from the date certified copy of this order is served upon the competent authority.

15.1.2010. Whether to be reported to the Reporters? Yes. (PERMOD KOHLI) JUDGE