IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1694 of 2005 Date of Decision: 16.2.2009 Sh.Sube Singh Mahala. ....... Appellant through Shri Naveen Daryal,Advocate. Versus Haryana State and another. .......Respondents through Ms.Kirti Singh, Assistant Advocate General, Haryana. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 21.10.2003 and 6.1.2005 passed respectively by the Civil Judge (Senior Division), Karnal (referred to hereinafter as `the trial Court') and the District Judge, Karnal (hereinafter described as `the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant were dismissed. The appellant filed a suit for declaration and claimed that the service rendered by him as S.S.Master in the Education Department, Haryana from 15.9.1970 to 5.1.1974, i.e., 2 years 9 months and 27 days, be counted towards qualifying service for grant of pensionary benefits. It was the case of the appellant that he had served the Education Department R.S.A. No.1694 of 2005 -2- .... during the aforesaid period and later on, he joined on 7.1.1974 as Taxation Inspector in the Excise and Taxation Department of the Government of Haryana on the recommendation of the Subordinate Services Selection Board. He made several representations to the Excise and Taxation Commissioner, Haryana for counting his service of the Education Department towards the qualifying service for pension, but to no effect. He placed reliance on the instructions issued by the State Government vide memo No. 1/2(II)-80-2FR-II dated 31.1.1984 which pertained to the grant of pensionary benefits to the employees recruited through Employment Exchange wherein it was mentioned that as per the instructions contained in letter no. 2170-FR-74/20589 dated 11.6.1974, the ad hoc service which counts for increments, is also to be counted as qualifying service for pension. The last representation made by the appellant was rejected by the Financial Commissioner & Secretary to Government of Haryana, Excise & Taxation Department vide letter no.1270 dated 2.7.19909. The respondents contested the suit and denied the claim of the appellant. It was averred that the appellant had retired from service 31.5.2000 and all the pensionary benefits have been released to him. It was pleaded by them that the appellant never produced the authenticated service record from the Education Department and, therefore, his claim for counting that service towards the qualifying service for pension was not accepted. Both the parties went to trial on the following issues:- 1. Whether the impugned order dated 2.7.99 is illegal and void and the service rendered by the plaintiff in the Education R.S.A. No.1694 of 2005 -3- .... Department is to be counted as qualifying service for pension which is to be revised as such and the plaintiff is entitled to arrears of pensionary benefits with interest as prayed for?OPP 2. Whether this court has got no jurisdiction to entertain and try the present suit?OPD 3. Whether the suit of the plaintiff is barred by period of limitation in time?OPD 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether no mandatory notice under section 80 CPC has been served upon the defendants before filing the present suit?OPD 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD 7. Relief. On appraisal of the entire evidence on record, the trial Court rejected the prayer of the appellant and dismissed the suit. It was held that the appellant had failed to show that he had made application through proper channel while applying for the post of Taxation Inspector in the Excise and Taxation Department. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this appeal. R.S.A. No.1694 of 2005 -4- .... Learned counsel for the appellant contended that the findings of the Courts below are erroneous as they are contrary to Rule 4.19(b) of the Punjab Civil Services Rules, Volume-II (for short, `the Rules'), which reads as under:- “4.19(b). Resignation of an appointment to take up with proper permission, another appointment whether permanent or temporary, the service in which counts in full or in part,is not a resignation of public service.” Reliance was placed on Balwant Singh Versus State of Haryana, 2000(1) S.C.T. 862 (P&H), wherein the petitioner,who was an employee of Zila Parishad, was absorbed in government service and was granted no objection certificate for his joining Health Department by resigning earlier employment. This Court held that it cannot be said that he resigned not for joining another department and resigned without permission and, therefore, he was granted the benefit of counting of his past service for the pensionary benefits. On the other hand, learned counsel for the respondents contended that the findings recorded by the Courts below are perfectly in order as the appellant did not adduce any evidence to show that he was in service at that point of time or that he had applied through proper channel. I have thoughtfully considered the respective contentions and have perused the record. There is no dispute regarding the fact that the appellant was working in the Education Department before obtaining an assignment in the R.S.A. No.1694 of 2005 -5- .... Excise and Taxation Department of the State of Haryana. However, there is no evidence to suggest that he applied through proper channel while serving as S.S.Master in the Education Department. Rather, his plea was that he was out of service of the Education Department when he applied for the post of Taxation Inspector. Exhibit P4 is the application which does not reveal that any permission was taken from the department concerned before either applying or joining new assignment. The appellant having applied independently is not entitled to the benefit of any service he had rendered. The provisions of Rule 4.19(b) of the Rules on which reliance has been placed by the learned counsel for the appellant are not attracted to the facts of this case. This rule would be applicable to the government employees, who take up other employment after resigning from earlier employment with proper permission and such resignation shall not be treated to be a resignation so as to result in denial in the benefit of the service rendered by such an employee. In the instant case, there is no such evidence on record to suggest that the appellant had taken due permission for relinquishing his earlier appointment to take up another one. That being the factual aspect duly confirmed by returning concurrent findings by both the Courts below, no interference is warranted in the Regular Second Appeal and such findings of fact when tested in the back-drop of Rule 4.19(b) of the Rules lead to a conclusion that the impugned judgments deserve to be upheld which denied the benefit to the appellant of the past service rendered by him. R.S.A. No.1694 of 2005 -6- .... The judgment relied upon by the learned counsel for the appellant is totally distinct as the facts of that case are entirely different. There, this Court was dealing with the question whether an employee, who was absorbed in another service after rendering service in Zila Parishad and after he had obtained no objection certificate for joining Health Department, is entitled to the counting of his past service for pensionary benefits. As observed earlier, there is no such evidence to show that the concurrence or permission had been obtained by the appellant before applying for the post of Taxation Inspector or before joining the Excise and Taxation Department. Therefore, the findings recorded by the Courts below cannot be termed to be incorrect or perverse so as to warrant any interference. No question of law arises for determination by this Court. Hence, this appeal, being devoid of any merit, is dismissed. February 16,2009 ( Mahesh Grover ) “SCM” Judge