Mr. Viren Nehra, Advocate for & Anr. v. State of Haryana & Ors.

Mr. Viren Nehra, Advocate for the petitioners in CWP-18479-2022. Mr. Shailender Singh Gill, Mr. Yajat Gill, Advocates for the petitioners in CWP-32610-2024. Mr. Teevar Sharma, DAG, Haryana. Mr. B.S.Khehar, Advocate for respondent No.6 in CWP-18479-2022. NIDHI GUPTA, J. *** With the consent of learned counsel for the parties, both the above said Writ Petitions are being disposed of by this common order as the facts and issues involved in both the cases are identical/similar. For the CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 2 of 9 sake of convenience, facts are being drawn from CWP-18479-2022 titled as Krishan Kumar and another vs. State of Haryana and others.

#2. Present Civil Writ Petition under Article 226/227 of the Constitution of India has been filed by the petitioners for issuance of a writ/direction/order, especially in the nature of certiorari for quashing the impugned order dated 25.04.2022 (Annexure P-17) of the Engineer-in-Chief, Public Health Engineering Department Haryana (Respondent No. 2) whereby the respondent No. 3 has been informed that the Head Office has not given any sanction for pay fixation of Krishan Kumar (Petitioner No. 1) without "No Objection Certificate" (i.e. NOC) & technical resignation and further advised that no case of pay protection without "No Objection Certificate" (i.e. NOC) & technical resignation be submitted; AND issuance of a writ in the nature of mandamus directing the respondents to grant benefit of pay protection to petitioners in view of statutory provisions defined under Chapter-III (Annexure P-12) read with Rule 71 (Annexure P- 11) of the Haryana Civil Services (Pay) Rules 2016 & Notification No. 1/13/2016-1PR(FD) dated 25.10.2020 (Annexure P-14, Rules- 8(36) & 39 of Haryana Civil Services (General) Rules 2016 (Annexure P-10) with all consequential benefits; AND issuance of a writ in the nature of mandamus directing the respondents especially No. 6 & 7 to refund the pay (Salary) which was got deposited in lieu of resignation ignoring the fact that the petitioners applied for subsequent post prior to joining existing one.

#3. At the very outset, learned counsel for the parties are ad idem that relief of pay protection already stands granted to the petitioners in CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 3 of 9 both the cases by the respondent-State. It is admitted by all learned counsel that at present, the only surviving prayer is for refund of salary to the petitioners which was got deposited in lieu of resignation.

#4. Brief factual background of the case in chronological order is as follows: -

26.02.1997: On 26.02.1997, petitioner No.1 had joined Indian Army on the post of INF Soldier, General Duty (GD).

31.03.2013: Vide Discharge dated 31.03.2013 (Annexure P-1), petitioner No.1 got discharged from the post of Havaldar after rendering 16 years 01 month and 03 days of service.

19.07.2015: On 19.07.2015, Haryana Staff Selection Commission (hereinafter referred to as “HSSC”) vide its Advt. No. 08/2015 dated

19.07.2015 (Annexure P-2) had advertised 5000 posts of Male Constable (General Duty) inviting online applications for direct recruitment. Last date for submission of online application was 06.10.2015. Petitioner No. 1 applied online for this post.

26.03.2015: On 26.03.2015, the Central Recruitment Agency of this Court issued Employment Notice dated 26.03.2015 (Annexure P-3) inviting online applications from eligible candidates to the post of Clerk in Subordinate Courts of Haryana. Last date for submission of online application was

02.05.2015. Petitioner No.2 applied for this post.

24.11.2015: Vide its advertisement No. 10/2015, dated 24.11.2015 (Annexure P-4), HSSC had advertised 4425 posts of Clerk. Last date for CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 4 of 9 submission of online application was 06.01.2016. Both the petitioners applied online for these posts.

02.12.2016: After successful completion of recruitment process, petitioner No.1 was offered appointment to the post of Male Constable (General Duty). Accordingly, petitioner No.1 joined police service on 02.12.2016.

17.11.2016: Vide letter dated 17.11.2016 (Annexure P-5) issued by the District & Sessions Judge Kaithal, petitioner No.2 was offered appointment to the post of Clerk. Accordingly, on 22.11.2016, Petitioner No.2 joined service to this post of Clerk in District Court, Kaithal.

16.03.2018: The Public Health Engineering Department (hereinafter referred to as “PHED”) vide Memo dated 16.03.2018 (Annexure P-6), offered appointment to petitioner No.1 to the post of Clerk on provisional basis.

28.03.2018: Having the above said appointment order, petitioner No.1 had submitted application for resignation dated 28.03.2018 (Annexure P-7) to the Superintendent of Police, Jind; thereby informing that he has been offered appointment to the post of Clerk in PHED. Petitioner No.1 also deposited two months’ salary amounting to Rs. 47,040/- in Government Treasury vide Challan dated 28.03.2018 (Annexure P-7A).

31.03.2018: After depositing of 2 months’ salary, the Superintendent of Police, Jind accepted resignation of petitioner No.1 vide Endorsement dated 31.03.2018 (Annexure P-7/B). Pursuant thereto, petitioner No.1 joined service on the post of Clerk on 02.04.2018 at Ambala Cantt. as

01.04.2018 was a Sunday. CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 5 of 9

09.08.2018: Similarly, petitioner No.2 was offered appointment letter dated

09.08.2018 (Annexure P-8) by the PHED for the post of Clerk.

27.08.2018: Petitioner No.2 accordingly submitted his application for resignation dated 27.08.2018 (Annexure P-9) to the District & Sessions Judge Kaithal.

29.08.2018: Vide letter dated 29.08.2018 (Annexure P-9/A), resignation of the petitioner No.2 was accepted subject to deposit of one month’s salary.

31.08.2018: Petitioner No.2 deposited one month’s salary amounting to Rs.31,011/- in Government Treasury vide Challan dated 29.08.2018. The same was duly conveyed to the Appointing Authority vide Endorsement dated 31.08.2018 (Annexure P-9/B). Petitioner No.2 was relieved from his duties vide Endorsement dated 31.08.2018 (Annexure P-9/C) and petitioner No.2 joined services to the post of Clerk in PHED on the same day i.e.

31.08.2018.

#5. It is contended by learned Senior Counsel for the petitioners that pay protection already stands granted to the petitioners however, the salary deposited by the petitioners as noted above, is liable to be refunded in terms of Rule 71 of the Haryana Civil Services (Pay) Rules, 2016 (hereinafter referred to as Rules, 2016) (Annexure P-11). It is submitted that the similar issue had come up for consideration before the Coordinate Bench of this Court in CWP-11810-2019 titled as Ankur Sharma vs. State of Punjab and others, Neutral Citation No. 2024:PHHC:129710; wherein Coordinate Bench vide judgment dated 30.09.2024 has held as under: - CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 6 of 9 “12. Keeping in view the above, the present petition is allowed. Keeping in view Rule 4.4 of the Punjab Civil Services Rules, Vol.I Part-I, as the petitioner has joined a Government Department i.e. Office of the Deputy Commissioner, Fazilka after rendering service with the Department of Transport, the service rendered in the Transport Department be treated as a valid service to be given benefit to the petitioner as and where required for all intents and purposes. Let the Office of the Deputy Commissioner, Fazilka treat the petitioner's transfer to the said Department having been done on the basis of the technical resignation so as to grant the benefit admissible to the petitioner under Rule 4.4 of the Punjab Civil Services Rules, Vol.I Part-I qua the service rendered by the petitioner in Transport Department, Punjab. Let this order be complied with by the respondents.

#13. Qua the pay which has been deducted while accepting the resignation of the petitioner, the Department of Transport is directed to refund the same and to treat the same as a technical resignation for all intents and purposes. Let this order be complied with by the Department of Transport within a period of four weeks of the receipt of copy of this order.”

#6. A similar view was reiterated by this Court in CWP-35184-2019 titled as Ram Mehar Singh and another vs. State of Punjab and others, Neutral Citation No. 2025: PHHC: 008666 and other connected cases; and in CWP-10354-2024 titled as Parveen Saini vs. District & Sessions Judge, Kaithal, Neutral Citation No. 2025: PHHC:019622. Learned counsel for the petitioners submit that therefore, the present case is clearly covered by the law laid down by this Court vide the above said judgments. Learned counsel CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 7 of 9 for the petitioners further pray that the petitioners shall be satisfied if at this stage, present Writ Petitions are disposed of with a direction to the respondents to consider the claim of the petitioners in light of the aforesaid judgments and pass individual speaking orders in case of each of the petitioners in both the present Writ Petitions.

#7. Learned State counsel is prima facie unable to dispute the applicability of the aforesaid judgments to the facts of the present cases and submits that he has no objection in case the present Petitions are disposed of as above.

#8. No other argument is raised on behalf of the parties. I have heard learned counsel for the parties and perused the case file in great detail.

#9. Admittedly, the above-mentioned prayers No. 1 and 2 regarding pay fixation have been redressed by the respondents; as stated in their short reply dated 26.07.2024 filed by Sumit Garg, Executive Engineer, Public Health Engineering Division Kurukshetra wherein it has been mentioned in para no. 6 that the pay of petitioner no 1 (Sh. Krishan Kumar) has been fixed vide office order no 1623 dated 08.05.2023 and arrears has also been paid to the petitioner no.1 on 21.06.2023 (Annexure R-3); and pay of petitioner no 2 (Sh. Manish Kumar) has been fixed vide order no 1622 dated 08.05.2023 and arrears has been paid on 11.05.2023 (Annexure R-4).

#10. Thus, the only surviving prayer is Prayer No. 3 for directing the respondents to refund the pay (Salary) which was got deposited by the CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 8 of 9 petitioners in lieu of resignation ignoring the fact that the petitioners applied for subsequent posts prior to joining existing post. The said issue already stands settled by this Court vide the aforementioned judgments in Ram Mehar Singh (supra), Ankur Sharma (supra) and Parveen Saini (supra).

#11. Besides the above precedents, Rule 71 of Rules, 2016 (Annexure P-11), is also relevant and reads as follows: - "71. Treatment of Resignation from service for the purpose of pay fixation: On subsequent appointment from one post to another in any Department of Haryana Government, by direct recruitment or otherwise, the resignation from service shall be a technical formality for the purpose of fixation of pay provided the application has been submitted through proper channel for such post. The period of break, if any, limited to joining time may be condoned. The pay shall be fixed as per provision in rule 10 or 11, as the case may be. Note: The resignation shall also be treated technical formality for the purpose of fixation of pay if the Government employee is not in service at the time when the application for subsequent appointment is directly submitted by him."

#12. Accordingly, apropos of the discussion above, the present Writ Petitions are disposed of with a direction to the respondents to consider the claim of the petitioners for refund of salary which was got deposited by them in lieu of their resignations; and pass speaking orders thereupon; and shall determine as to whether the applications for resignation submitted by the petitioners were through the proper channel; and that the CWP Nos. 18479 of 2022 (O&M) and 32610 of 2024 (O&M) 9 of 9 requirements of Rule 71 of Rules, 2016 are duly complied with; while keeping in mind the law as laid down by this Court in relied-upon judgments in Ram Mehar Singh (supra), Ankur Sharma (supra) and Parveen Saini (supra).

#13. Needful be done within a period of six months from the date of this order.

#14. Pending application(s) if any also stand(s) disposed of.

07.07.2026 Divyanshi (NIDHI GUPTA) JUDGE Whether speaking/reasoned: Whether reportable: Yes/No Yes/No