Arun Kumar v. Municipal Corporation Faridabad

Ms. Abha Rathore, Advocate for the petitioner. Mr. Jatinder K. Kamboj, Advocate, for Mr. Pradeep Bhandari, Advocate, for the respondent. -----

1. Whether reporters of local papers may be allowed to see the judgment? Yes To be referred to the reporters or not? No

2. 3. Whether the judgment should be reported in the digest? No ----- K.Kannan, J (Oral)

1. The writ petition seeks to quash the office order dated

04.12.2006 in terms of which the petitioner had been allowed to proceed on voluntary retirement w.e.f. 31.01.2007. There is also an alternative prayer that if the proceedings are not quashed, the respondent may be directed to release the pension, bonus and the 1st ACP scale.

2. The provisions of the Haryana Civil Services Rules which are admittedly applicable to respondent provides for a scheme of voluntary retirement on completion of 20 years of qualifying service. There is also a provision for increasing the period not exceeding 5 years Civil Writ Petition No.5727 of 2009 - 2 - under Clause (3). The relevant clauses are reproduced as under :- “A. According to Haryana Civil Service Rule Vol. 2 Rule 5.32B(1), reproduced below:- At any time a Government employee has completed 20 years qualifying service, he may, by giving notice or not less than three months in writing to the appointing authority, retire from service. However a Govt. employee may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefore. On receipt of request the appointing may considered such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of the notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Govt. employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (2) (3) .............. The qualifying service as on the date of intended retirement of the Government employee seeking retirement under this rule or clause (e) of Rule 3.26 of Punjab C.S.R. Vol. 1 Part (1) with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government employee does not in any case exceed thirty three years and it does not take him beyond the date of superannuation. The weightage of five years shall not be admissible in case of those Government employees who are prematurely retired by the Govt. in public interest under the relevant rules...... (4). (5). (6). (7). ............. ............. ............. .............”

3. The petitioner makes a reckoning of the qualifying service as the period when the petitioner began service as a daily wager since

01.06.1990 and states that on the date when he was voluntarily retired on

31.01.2007, he had completed 16 years and 8 months. By applying Clause (3) of Rule 5.32B of the Civil Services Rules, the petitioner seeks for adding a period that falls short of 20 years to claim the relief of Civil Writ Petition No.5727 of 2009 - 3 - pension. This is alternative to a contention that if the voluntary retirement itself could not have been allowed to the petitioner even before the completion of 20 years, and if the order relieving him from service on 04.12.2006 cannot be quashed for any reason. The learned counsel states that the petitioner will be satisfied if by an application of Clause (3) of Rule 5.32 if the additional period is added to the actual years of service that he had put in of 16 years and 8 months, the petitioner will not seek for quashing of the office order relieving the petitioner and would claim only the release of pension. It is contended on behalf of the respondent that the petitioner had completed only 9 years and 24 days by such a mode of reckoning so as to exclude the period when the petitioner was working as a daily rated worker.

4. The issue of computation of qualifying service for pension, it is urged by the learned counsel for the petitioner, shall be seen in the context of how the judicial pronouncements have upheld the computation of the period as a daily rated worker also as relevant if it is continuous and if it has been followed with regular service. The learned counsel refers to decisions in Kashmir Chand Versus Punjab State Electricity Board and others-(2005) 4 SCT 298; Ram Dia and others Versus Uttar Haryana Bijli Vitran Nigam Limited and another-2005(4) SCT 387 and Hari Chand Versus Bhakra Beas Management Board and others-2005(2) SCT 95. It is also urged that Rule 3.17 A of the Haryana Civil Services Rules allows for computation of the period of work charged employment followed by a regular service as qualifying service. Since work charged employment is treated on par with daily wages Civil Writ Petition No.5727 of 2009 - 4 - employment for the sake of computing regular service, the same shall enure to his benefit for the sake of pension.

5. The learned counsel for the respondent refers to a judgment of Hon'ble Supreme Court in State of Haryana and others Versus Shakuntala Devi-(2008) 15 Supreme Court Cases 380 that held, while interpreting Punjab Civil Service Rules (as applicable to Haryana) that widows of ad hoc employees whose services continued from time to time did not qualify for family pension. This judgment does not apply since the Hon'ble Court was dealing with a case where there had been no confirmation in service. The decision of the Hon'ble Supreme Court in Union of India Versus K.G.Radhakrishana Panickar- 1998(5) SCC 111 relied on by the counsel for the respondent does not also apply since the case referred to a Indian Railway Establishment Manual which specifically provided that temporary service as Project Casual Labour was entitled to count only half of the service as qualifying service, when reckoned with the service on a regular, temporary/permanent post for the purpose of pension, which set out the law to the above proposition.

6. By the application of the rules and by reference to judgments in para 4 above, the petitioner is entitled to consider himself as having the necessary qualifying years of service and the petitioner shall therefore be entitled to the release of pension admissible for the pay that he was drawing at the time of his voluntary retirement. There is also a prayer for payment of bonus and the 1st ACP scale on the basis that the petitioner had completed 10 years of service. The ACP scale would however be counted only from the date of regular service which Civil Writ Petition No.5727 of 2009 - 5 - according to the petitioner commenced from 01.02.1996.The petitioner could be seen to have completed 10 years of service at the time when he obtained voluntary retirement. The ACP scale shall be awarded to the petitioner from 01.02.2006. The computation of ACP scale would arise upto 31.01.2007, that is for a period of 12 months. The petitioner seeks for the claims of the bonus which is not refuted in the written statement. The petitioner shall be entitled to the bonus also.

7. The computation of the amounts payable to the petitioner shall be undertaken by the respondent and finalized within a period of 8 weeks from the date of the receipt of the copy of the order. The writ petition is allowed on the above terms.

19.02.2010 sanjeev (K.KANNAN) JUDGE