CIVIL WRIT PETITION NO.6980 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 23, 2009 Partap Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. S. S. Duhan, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. Mr. N.D.S.Mann, Addl.A.G., Punjab, for the State. **** RANJIT SINGH, J. The petitioner, who had been an employee of two different Governments, has filed this writ petition seeking direction for the State of Punjab to contribute for his pension in lieu of services that he rendered for the State. Having been appointed as a Social Study Master at Nabha on 7.9.1978, the petitioner served in various school of Patiala CIVIL WRIT PETITION NO.6980 OF 2009 :{ 2 }: Division. While he was serving at Government Middle School Bhutal Khurd, Sangrur in the year 1978, he applied for the post of Headmaster on 22.9.1988 through proper channel, which was advertised by the State of Haryana. The application of the petitioner was duly forwarded through proper channel, i.e., Headmaster Government High School Rampura Ganota, District Sangrur. The petitioner was selected on 21.9.1989. He accordingly submitted his resignation from the post of Social Study Master on 21.9.1989. He joined the said post on 22.2.1989. His resignation was accepted on 14.12.1992 and was communicated to him on 23.2.1993. The petitioner has finally retired from the service on 31.1.2008. As per Rule 3.17 of Punjab Civil Services Rules, the petitioner is entitled to count his service rendered in the State of Punjab for the period from 12.9.1978 to 21.9.1989 for the purpose of grant of pension and pensionary benefits with the State service of Haryana. As per this rule, the State of Punjab is liable to contribute towards the pensionary benefits to the State of Haryana as per liability under Rule 3.17. Rule 3.17 is as under:- “In the case of an officer retiring on or after 5th January, 1961, if he was holding substantially a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post shall count in full as qualifying service except in respect of:- (i)period of temporary or officiating service in non pensionable establishment; CIVIL WRIT PETITION NO.6980 OF 2009 :{ 3 }: (ii) period of service in work charged establishment; and; (iii) period of service paid from contingencies” Note 1 and 2 x x x x Note 3(a) In respect of temporary employees of the following categories who render service under the central/state Governments prior to securing posts under the Central/State govt. on their own volition in response to advertisements or circulars, including those by Union/State Public Service Commission and who are eventually confined in their new posts, the proportionate pensionary liability in respect of temporary service rendered under the Central/State Governments to the extent such service would have qualified for grant of pension under the rules of the respective Government will be shared by the concerned Government on a service basis: (1) Those who having been retrenched from the service of Central/State government secured on their own employment under State/Central Governments either with or without interruption between the date of retrenchment and date of new appointment. (2) Those who while holding temporary posts under Central/State government apply for posts under State/Central Governments through proper channel/with proper permission of the Administrative authority concerned. CIVIL WRIT PETITION NO.6980 OF 2009 :{ 4 }: Explanation: Where an employee in category (2) is required for satisfying technical requirement to tender resignation from the temporary post held by him before joining the new appointment, a certificate to the effect that such resignation had been tendered for administrative reasons and/or to satisfy a technical requirement to join with proper permission, the new posts may be issued by the authority accepting the resignation. A record of this certificate may also be made in this service book under proper attestation to enable him to get this benefit at the time of retirement. The gratuity, if any received by the Government for temporary service under the Central/State Government will however, have to be refunded by him to the Government concerned. (b) Those employees who while holding temporary posts under Central/State Government apply for post under Central/State Government direct without permission and resign their previous post to join the new appointment under the Central/State Government will not be entitled to count their previous service for pension.” The petitioner accordingly prayed for counting the period of service rendered by him in the State of Punjab, but still the respondent-State of Punjab refused to contribute. In the reply filed, the State of Punjab would refer the CIVIL WRIT PETITION NO.6980 OF 2009 :{ 5 }: resignation submitted by the petitioner from the service of Punjab and by relying on Rule 7.5 of Punjab Civil Services, Volume-1, Part-I would submit that the resignation of an employee entails forfeiture of past service. It is further stated that the petitioner had voluntarily resigned from the State service and, therefore, he is not entitled to the benefit of service which he rendered in the State of Punjab. Similar stand is pressed by the State of Haryana to say that no certificate to the effect that he had resigned in order to join the new post by the competent authority had been issued and no entry to this effect has been made made in the service book. It is, thus, stated that he had not tendered a technical resignation to join service to enable him to count this service for the purpose of pension. I have heard the counsel for the parties. The stand taken by the respondent-State is neither fair nor justified as per the rules. No doubt, Rule 7.5 of the Civil Service Rules provides that the resignation entails forfeiture of past service, but it is further provided in sub-section (2) of the Rule that a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where the service qualifies for pension. The stand further is that if the petitioner had resigned to take up a job with the Punjab Government, then only his service prior to resignation would have been treated as qualified service for computing the pensionary benefits. This approach is not only hyper technical but is against the provisions in the Rules. Somewhat similar controversy arose before this court in the case of Smt.Shant Kaur Vs. Punjab State and others, 1992(1) RSJ 579. In CIVIL WRIT PETITION NO.6980 OF 2009 :{ 6 }: this case also, the petitioner, who was working as Social Study Mistress in the State of Punjab, had applied for post of Headmistress in response to an advertisement issued by the Haryana. Like the petitioner, she had also applied through proper channel and was selected. She got herself relieved from the school in Punjab to join the new appointment as Headmistress in Haryana. She had also prayed for counting her service rendered in the State of Punjab for the purpose of pension in terms of Rule 3.17. Rather in the case of Smt.Shant Kaur (supra), it was alleged that she had absented from duty and had left the service in the State of Punjab to join the service in Haryana. The stand taken by the Punjab Government, as noted in the judgment, is that she had joined the post in Haryana Government without permission of the Punjab Government and without resigning from the job and accordingly she was not entitled to any pensionary benefits. This stand is noted in the judgment as under:- “On the other hand, the stand of the respondents is that since the petitioner had joined the post in Haryana Government without the permission of the Punjab Government and without resigning from the job, she was not entitled to any pensionary benefits under Explanation 2(b) to Rule 3.17, Note 3 quoted above. According to the written statement, the petitioner had not put in her resignation and consequently, according to the respondents, the petitioner was not entitled to any pensionary benefits.” This stand taken by the State of Punjab is in consonance with the plea raised by the petitioner now, who is still being denied CIVIL WRIT PETITION NO.6980 OF 2009 :{ 7 }: pension in an unfair manner. Even that plea of the State of Punjab in the case of Shant Kaur (supra) was not accepted and it was observed that as far as the question of the resignation of the said petitioner is concerned, the factual position is that she was relieved by the Head Mistress. It is further observed that it is only a technicality that she should have resigned from the post. In the present case, this technicality has even been met. That being the position, the respondent-State of Punjab is liable to contribute to the pensionary benefits to the State of Haryana, which, the State of Haryana is liable to pay under Rule 3.17 referred to above. The writ petition is accordingly allowed. The petitioner is held entitled to get the pensionary benefits from the State of Haryana while counting his past service rendered in the State of Punjab. Both the States would bear proportionately the pensionary liability to the extent of services, which have been rendered by the petitioner in the State of Punjab and in the State of Haryana. There shall be no order as to costs. October 23, 2009 ( RANJIT SINGH ) ramesh JUDGE