Civil Writ Petition No.6931 of 2002 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6931 of 2002 Date of decision: August 31, 2010. Ashok Kumar ...Petitioner(s) v. State of Punjab & Ors. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioner(s). Ms. Ambika Luthra, Assistant Advocate General, Punjab, for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): In the present petition, a prayer has been made that the respondent-State be directed to release pension to the petitioner which has been wrongly withheld from October, 2001, which was earlier sanctioned and was allowed to be drawn with effect from 1.3.1998. The petitioner was appointed as a Peon in the Civil Courts at Jalandhar on 2.12.1977. He was confirmed as such with effect from 23.12.1989. On 11.11.1997, the petitioner having put in 20 years of service, sought premature retirement on 28.2.1998 and he also served a mandatory notice of three months upon the respondents. At the relevant time, the petitioner was serving under the Civil Judge (Senior Division), Nakodar. Copy of the letter seeking voluntary retirement is annexed as Annexure P-1. Civil Writ Petition No.6931 of 2002 -: 2 :- On 6.2.1998, Civil Judge (Senior Division), Jalandhar passed the following order:- “OFFICE ORDER Under Rule 3 Sub Rule 2 Appendix 22 Punjab Civil Service Rules Volume I Part II, Shri Ashok Kumar, Orderly attached to the Court of Shri R.K. Jain, Civil Judge, Junior Division, Jalandhar is allowed to retire voluntarily (premature) w.e.f. 28.2.1998 A.N. on completion of his three months notice. Necessary entry be made in the service book of the official. Civil Judge, Senior Division, Jalandhar.” In compliance of the order Annexure P-2, reproduced above, Pension Payment Order Annexure P-3 was also issued in favour of the petitioner and he was held entitled to payment of Rs.1310/- as pension. Later on, the case of the petitioner was sent to the Accountant General, Punjab, Chandigarh who raised an objection that service period of 7 months 9 days of the petitioner was not countable towards qualifying service. It is stated in the written statement that the petitioner was born on 11.7.1960; he joined the Government service as a Peon in the office of District & Sessions Judge, Jalandhar on 2.12.1977, before completing 18 years of age, which was pre-requisite for entry into government service, therefore, the service rendered by him from 2.12.1977 to 10.7.1978 was considered as a Boy Service and was excluded from 20 years of service rendered by the petitioner and it was, therefore, held that the petitioner was Civil Writ Petition No.6931 of 2002 -: 3 :- not entitled to voluntary retirement. After a perusal of the pleadings of the parties, this Court is of the view that it was incumbent upon the authorities to acquaint the petitioner that he was not qualified to seek voluntary/premature retirement. In the present case, the order Annexure P-2, which has been reproduced above, has been passed and petitioner was also issued Pension Payment Order, Annexure P-3. To withdraw the benefit of pension at the later stage,after three years of grant of pension, on the ground that the service rendered by the petitioner for 7 months and 9 days was to be considered as a Boy Service, will be a very harsh order. Had the petitioner been made aware that he was required to render 7 months and 9 days service more, he would have continued in service and may have postponed his premature retirement. In these exceptional circumstances, whereby a great hardship has been caused to the petitioner, this Court is of the view that the service rendered by the petitioner, by granting him relaxation, is to be counted towards qualifying service for seeking retirement. Besides the above said reasons, conclusion arrived is also supported by a Single Bench of this Court in a judgment rendered in Roshan Kumar Sharma v. Union of India etc., 2000(2) SCT 91:- “It has also to be noticed that the service rendered by a person as a `boy' or an Artificer Apprentice is counted for the purpose of computation of 15 years for retiring a person. Upon no prudent reasoning, thus, the same could be excluded while reckoning the qualifying service for granting the pensionary benefits. The approach adopted by the Union of India is not Civil Writ Petition No.6931 of 2002 -: 4 :- only unconscionable but its very basis are opposed to the fundamental rules of law. Fairness in State action is of paramount consideration in a democratic set up and the State must show proper reasoning in its administrative action. The State, thus, in any case is in commanding position and it must avoid unfairness in grant of the requisite relief to a person, less (lest ?) it offends the basic protection available to a citizen under the Constitution of India. Once employment is made in accordance with the rules and upon process provided, such service must be counted for benefits to the person so appointed when he is given regular appointment. Providing such benefit of continuity of service is in the interest of employee-employer relationship. In this regard, reference can be made to the judgment of Full Bench of this Court in the case of Rakesh Kumar Singla v. State of Haryana through Financial Commissioner, Irrigation and Power, Civil Secretariat, Chandigarh and another, 1995(3) P.L.R. 411 : 1995(4) SCT 285 (P&H) (D.B.). At this stage, it would be relevant to refer to the judgment of the Hon'ble Supreme Court of India in the case of Anuj Kumar Dey v. Union of India, 1997(1) RSJ 113 where the Hon'ble Supreme Court after considering the relevant rules at some length repelled the contention of the Union of India that Artificer Apprentices were not entitled to the benefits of the service rendered by them in that capacity prior to age of 18 years. I consider it more appropriate to refer to the reasoning Civil Writ Petition No.6931 of 2002 -: 5 :- and conclusion given by the Hon'ble Apex Court in said judgment, which reads as under :- "15. All these facts and the various provisions of the Act and the Regulations leave no room for doubt that the appellant even during the period he was working as Artificer Apprentice was in the service of the Navy, was given Good Conduct Badges for this service and four years' service was counted from the year 1971. The Discharge Certificate which is a statutory document clearly records that he has served in the Indian Navy from 12th August, 1971 to 31st January, 1988. The respondents after granting all these certificates and badges, cannot be heard to say that the appellant had not put in the qualifying period of service of fifteen years and, therefore, was not entitled to get pension. 16. Our attention was drawn to a judgment of Andhra Pradesh High Court in the case of H.S. Sarkar v. Union of India & Ors., 1994(2) An. W.R. 221 : 1995(2) SCT 414 (A.P.), where it was held that "it does not stand to reason that when the training period of four years is reckoned for the purpose of computation of 15 years for retiring a person, the same is not reckoned for the purpose of pension. Payment of only a consolidated pay during the training period and not regular scale of pay is immaterial in so far as the computation of the period is concerned." 17. We are of the view that the Division Bench of the High Court was in error in holding that the period of four years Civil Writ Petition No.6931 of 2002 -: 6 :- when the appellant was employed Artificer Apprentice could not be counted for computation of the qualifying period of pension. 18. For the reasons stated hereinabove, the appeal is allowed. The judgment of the High Court dated 17th July, 1991 is set aside. There will be no order as to costs." After pronouncement of the judgment by the Hon'ble Supreme Court of India, a writ was filed in the Bombay High Court by Vilas Mahadev Kulkarni and others for seeking the same benefits. Before the Bombay High Court, learned Additional Solicitor General, on behalf of the Union of India made a statement that the petitioners would be granted benefits. The order passed by the Division Bench of the Bombay High Court in Civil Writ Petition No. 1446 of 1999 titled Vilas Mahadev Kulkarni v. The Union of India and others decided on 21.1.2000 reads as under :- "Dr. Chandrachud, learned Addl. Solicitor General has placed on record letter dated 14.1.2000 from the Ministry of Defence New Delhi whereby it is recorded that the benefits of counting boy service be extended for processing the cases of 21 petitioners, whose list is attached to the letter for pensionary entitlements in relaxation of the provisions of Regulation 79 of Navy Pension Regulations, 1984 (Statutory). It is also recorded by the said letter that the amount will be computed by CCDA (P), Allahabad and will be intimated to the Ministry of Defence, Government of Civil Writ Petition No.6931 of 2002 -: 7 :- India for issue of necessary sanction for release of amount on charged expenditure basis. The said letter is taken on record. In view of the aforesaid letter, the grievance made in the above petitions do not survive and the petitions stand disposed of. Dr. Chandrachud assures the Court that the order will be implemented within a period of three months from today, after the submission of the pension papers by the respective petitioners. Parties and authorities to act on the ordinary copy of this order duly authenticated by the Court Associate." Furthermore, Swatanter Kumar,J., as His Lordship then was, in the above said case held:- “It is undisputed fact that a `boy' is recruited in the Indian Navy by due process of recruitment and is obviously under the age of 18 years at the time of recruitment. Rule 261 is the rule which provides source for recruitment to `sailor' in the Indian Navy. One source is by direct entry, while the other is from amongst the persons, who have entered the service as a `boy' or Artificer Apprentice. They shall be recruited under the said regulations and as per the terms and conditions, as specified by the Chief of Naval (Staff) and other relevant rules governing the subject. In other words, service rendered by a person as a `boy' is a concept duly accepted under the rules and regulations and is not a simplicitor contract of a tenure employment. This concept is elucidated by the rules making authority in regulation 100 of the said regulation. Under those provisions a `boy' is entitled to Civil Writ Petition No.6931 of 2002 -: 8 :- get disability pension along with sailor and other persons specified therein. This further indicates that the `boy' by virtue of his employment attains a status which is equivalent to the regular employee of Navy in certain aspects and matters. The service so rendered by the petitioner entitled him for some other benefits at par with the regular members of the Naval service. If the Union of India has made recruitment to the post of `Boy' in violation of Regulations, it can hardly blame any one else except its own self, for the consequences flowing from such error. It cannot be disputed that the Union of India now cannot act to the prejudice to the petitioner, more particularly when the Union had taken regular service from these ranks with its eyes open and complete knowledge of the rules. The inevitable conclusion, therefore, is that such employment would create a liability on the part of the Union to grant resultant benefits to the petitioner. An employer is always at liberty to command his condition of service, but once conditions of service are accepted and the service is rendered as regular service, the employer cannot turn back to say that the employment given by him was contrary to law and the service rendered would be ineffective or void in the eye of law, for grant of benefits.” I also adopt above said reasons enunciated in RoshanKumar Sharma's case (supra) to validate grant of benefit of counting of boy service towards pensionary benefits. Hence, the present writ petition is allowed; the petitioner is Civil Writ Petition No.6931 of 2002 -: 9 :- held entitled to pension. The entire arrears of pension shall be paid to the petitioner within a period of six months from the date of receipt of a certified copy of this order. The order, whereby recovery of pension already paid was sought to be made, is also quashed. However, there will be no order as to costs. [Kanwaljit Singh Ahluwalia] August 31, 2010. Judge kadyan