C.W.P. No. 19214 of 2009 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 19214 of 2009 Date of Decision: Aug. 23, 2011 Darshan Singh .......................................... Petitioner Versus The State of Punjab and others ................ Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. R.K.Arora, Advocate for the petitioner. Mr. Puneet Gupta, Addl. A.G. Punjab for respondents No. 1 to 6. Mr. Namit Kumar, Advocate for respondent No.7. ... RITU BAHRI, J. (Oral) Petitioner is seeking a writ of Mandamus for directing the respondents to count the service rendered by him from 27.2.1975 to 5.8.1982 in the Government High School, Faridkot and also service rendered in Shaheed Bhagat Singh Municipal College, Kot Kapura from 6.8.1982 to C.W.P. No. 19214 of 2009 [ 2 ] 11.5.1997 towards qualifying service for pension and other retiral benefits with all consequential benefits i.e. selection grade etc. The petitioner was appointed as Basket Ball Coach on purely temporary basis for six months by Government Balbir High School, Faridkot on 27.2.1975 for two hours daily i.e. 11:00 A.M. to 1:00 P.M. The timings of the School were 9:00 A.M. to 4:00 P.M. Thereafter, he was appointed as Director Physical Education (DPE) in the Shaheed Bhagat Singh Municipal College, Kot Kapura which was run by the local Municipal Committee on 5.8.1982. The said college was taken over by the Punjab Government vide notification dated 12.5.1997. Resultantly, services of the petitioner were regularized with effect from 12.5.1997 and his pay scale was accordingly fixed. The petitioner has retired on 31.12.2007. Vide letter dated 11.3.2010 he has been informed that his pay scale has been revised after his regularization orders were passed on 20.1.2004 with effect from 12.5.1997. He has been granted selection grade of `12000-18300 (unrevised) with effect from 25.9.2003 by DPI office order No. 9/24/2007-2 Estt 602 dated 25.2.2009. The revised grade 37400-67000 was given w.e.f. 01.01.2006 vide order No. 9/1-2010 A(2)-275 dated 11.2.2010. As, the writ petitioner retired on 31.12.2007, he was informed vide office letter No. 141 dated 11.3.2010 to prepare his revised C.W.P. No. 19214 of 2009 [ 3 ] pension case and do the needful till 14.3.2010 along with above mentioned letter of DPI. Both the letters dated 11.2.2010 and 11.3.2010 are attached with the written statement as Annexure R-1 and R-2. The service rendered by the petitioner with effect from 6.8.1982 to 11.5.1997 in Shaheed Bhagat Singh Municipal College cannot be qualified towards qualifying service for pension on the ground that he was working in a non-aided school. He had worked as a Coach for 2 hours daily in the Government Balbir High School, Faridkot with effect from 27.2.1975 to 5.8.1982. This period is also not liable to be counted. The claim of the petitioner for counting of service is being denied on the basis of judgment of the Supreme Court in State of Punjab and others v. Dev Dutt Kaushal etc. (Civil Appeal No. 1102 of 1995) (Annexure R-III) and a subsequent judgment of the Supreme Court in State of Punjab & Others v. Darshan Singh & Others (Annexure R- IV). Mr. R.K.Arora, counsel for the petitioner, has vehemently argued that the respondents have wrongly rejected the claim of the petitioner for counting the entire service rendered by him, firstly as Basket Ball Coach in the Government Balbir High School, Faridkot, and subsequently his service rendered in the School/College run by the Municipal Committee. He was appointed as a regular Coach C.W.P. No. 19214 of 2009 [ 4 ] in the Government Balbir High School, Faridkot. He has referred to Annexure P-26 i.e. Medical Certificate of Fitness for entry into government service. This Certificate was issued on 11.8.1977 before he was appointed as a Coach. Petitioner had made contributions to General Provident Fund scheme as is evident from Annexure P-27. The Accounts Officer had informed the Principal that Darshan Singh had made contributions amounting to `3380/- for the month of December 1987 and this amount along with interest upto February 1983 lying in the GPF account of Darshan Singh has been sent to DPI (College). Mr. Arora asserted that the petitioner was regularly appointed as a Basket Ball Coach in the year 1977. Thereafter, in the year 1982 he was sent to Shaheed Bhagat Singh Municipal Degree College, Kot Kapura. This college has been duly approved by the DPI, Punjab, Chandigarh on 4.8.1992. While going on deputation he was duly relieved by the Government High School, Faridkot, as is evident from Annexure R1 filed by respondents No. 3 and 5 i.e. Principal Government Balbir Senior Secondary School, Faridkot. The relieving order clearly shows that he had been appointed as a Coach at Shaheed Bhagat Singh Municipal Degree College, Kot Kapura. There was no occasion to relieve and transfer the petitioner from a Government High School, Faridkot, to enable him to join at Shaheed Bhagat Singh Municipal C.W.P. No. 19214 of 2009 [ 5 ] Degree College, Kot Kapura had he been a temporary employee. In the relieving order dated 5.8.1982 it is specified that all the departmental rules shall be applicable to the employee when he joins the new College at Kot Kapura. Mr. Arora has referred to Annexure P-29 whereby as per the DPI instructions petitioner has been relieved from the Government School on being appointed as Coach in Shaheed Bhagat Singh Municipal Degree College, Kot Kapura. Separate Provident Fund which was deposited with Government Balbir High School, Faridkot, has been withdrawn and the same has been deposited in the credit of the petitioner as per Annexure P-30. In terms of the Punjab Municipal Employees General Provident Fund Rules 1994 which were applicable to the employees working in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura, the petitioner's service rendered with effect from 27.5.1975 to 5.8.1982 has to be counted for the purpose of selection grade and pension. Heard learned counsel for the parties. After going through the facts of the case the undisputed fact is that the petitioner is claiming the benefit of service rendered in Government High School with effect from 27.2.1975 to 5.8.1982 followed by service rendered in Shaheed Bhagat Singh Municipal College, Kot Kapura from 6.8.1982 to 11.5.1997 for the purpose of pension and C.W.P. No. 19214 of 2009 [ 6 ] selection grade. His claim is being denied on the ground that his service in the Government High School, Faridkot, was temporary for 2 hours a day. The Medical Certificate of Fitness (Annexure P26) dated 11.8.1997 goes to show that he had been issued this Certificate for employment in the Education Department. His service in the Government High School, Faridkot, was on regular basis. He had deposited the General Provident Fund amount in the treasury as per information given by the Senior Accounts Officer vide Annexure P27 dated 3.10.2006. There was no occasion for the petitioner to get a Medical Certificate for appointment on a post of 2 hours daily in a Government school. The respondents have not denied this factual aspect. Hence, petitioner's service in Government High School from 27.1.1975 to 5.8.1982 is held to be on regular basis. Subsequently, he was relieved on selection on account of his appointment in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura by the Government High School, Fatidkot on 5.8.1982 (Annexure P-29). The Shaheed Bhagat Singh Municipal Degree College, Kot Kapura was under the control of Director Public Instructions is evident from the fact that the petitioner had been relieved in view of the DPI letter. The petitioner is in receipt of the GPF amount which he had deposited in the Government High School, Faridkot, and which was ultimately released to him vide letter No. C.W.P. No. 19214 of 2009 [ 7 ] Fund-6/86-87/2292098 dated 17.11.1997 (Annexure P30) The fact that the service rendered by the petitioner in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura, was under the control of Municipal Council, Faridkot, and had become pensionable as per the GPF Rules 1994 when this College was taken over by the Government in the year 1997, the petitioner was working under an institute covered by pension scheme. The claim of the petitioner cannot be rejected on the basis of judgment of the Supreme Court in State of Punjab & Others v. Darshan Singh & Others (Annexure R4) on the simple ground that while taking over an unaided private college the Government was not bound to count the service rendered for the purpose of selection grade. While taking over the service of a private college their previous service was to be taken into account only for the purpose of fixation of salary. For selection grade the previous service in a private college was held not to be counted. As per the terms of the Memorandum of Taking Over it was decided that the incumbents will be absorbed as new entrants and except for the purpose of fixation of pay the past service had not to be counted for any other purpose. In view the above facts, the Supreme Court had allowed the SLP of State of Punjab and rejected the claim of the respondents. However, in the present case, the facts are different. The service rendered by the petitioner in a C.W.P. No. 19214 of 2009 [ 8 ] Government High School, Faridkot, was on regular basis as per the Medical Certificate. There is no denial to this fact by the respondents. The service rendered by the petitioner from 6.8.1982 to 11.5.1997 in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura is liable to be counted for pension for the reason that it was under the control of Director Public Instructions as is evident from the relieving order of the petitioner dated 5.8.1982 (Annexure R2/T) where it has been observed that he has been selected by the DPI, Punjab, as Coach at Shaheed Bhagat Singh Municipal Degree College, Kot Kapura on 4.8.1982. The Departmental Rules were to be applicable to this employee and he was bound by the same. The relieving order supports the stand of the petitioner that he was a regular employee of the Government High School and on his being appointed as a Coach in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura by DPI, he was relieved to enable him to take charge in the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura. It is not even disputed that the Shaheed Bhagat Singh Municipal Degree College, Kot Kapura was governed by the Pension Rules of 1994 before being taken over by the Government in 1997. All the above facts are inter-connected and goes to prove that petitioner has been in regular service with effect from the year 1977 to 1997 and his service was governed by Pension Regulation C.W.P. No. 19214 of 2009 [ 9 ] Rules. Since the petitioner has been working in a School which was under the control of Municipal Committee and was contributing Provident Fund as per the 1994 Rules his service is liable to be counted for the retiral benefits. This aspect has been considered in the case of Charan Singh v. State of Punjab and others (C.W.P. No. 12432 of 2004 decided on 11.7.2006) (Annexure P-23) which has been later on affirmed by the Supreme Court vide Annexure P-24. The facts of the present case are that the petitioner has served the Government High School, Faridkot, and thereafter he had taken charge in a School run by the Municipal Committee which was under the direct control of DPI. His case is better than the case of an employee working in a private managed aided school. The writ petition is allowed. A direction is given to the respondents to count the entire service of the petitioner from 27.2.1975 to 11.5.1997 towards retiral and other consequential benefits within a period of four months from the date of receipt of a certified copy of this order. 23.8.2011 ( RITU BAHRI ) Rupi JUDGE