-1- Civil Writ Petition No.2799 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January 23, 2008 S.M. Acharya ... Petitioner VERSUS State of Haryana and another ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers 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 ? Present: Mr. K.L. Arora, Advocate, for the petitioner. Mr. S.K. Hooda, Senior Deputy Advocate General, Haryana. -.- MOHINDER PAL, J. The facts of this case, as set out in the writ petition, are that the petitioner was appointed as Lecturer in English in D.A.V. College, Hassangarh, after following the due procedure of advertisement and selection, and he served there from October -2- Civil Writ Petition No.2799 of 2007. 14, 1974 to September 05, 1983 i.e for eight years and eleven months. The said College was on the verge of being closed. In the meantime, Chhotu Ram Kisan College, Jind (hereinafter referred to as `C.R.K. College), advertised the post of Lecturer in English. The petitioner applied for the same through proper channel. He was called for interview and selected by the Selection Committee. He served there from September 06, 1983 to August 31, 2003 i.e for eighteen years and eleven months. He retired on August 31, 2003 after attaining the age of superannuation of 60 years. There was no break in service. The petitioner had been appointed in both the Colleges on aided sanctioned posts. The Colleges were affiliated with the University and were on the grant-in-aid list of the Government. The petitioner had been given retiral benefits in respect of the service rendered by him in C.R.K. College, Jind. However, the service rendered by him in the D.A.V. College, Hassangarh, had not been reckoned with the service rendered in C.R.K. College, Jind for the purpose of grant of retiral benefits. The petitioner made representation dated December 12, 2003 (Annexure P-3) to the Higher Education Commissioner, Haryana, Chandigarh (respondent No.1), for calculating his total service for the purpose of pension and gratuity. The petitioner sent another letter dated August 05, 2004 (Annexure P-6) to respondent No.1 enclosing an undertaking therewith that he would deposit the amount of employer's share of Contributory Provident Fund (C.P.F) in respect of his service in D.A.V. College, -3- Civil Writ Petition No.2799 of 2007. Hassangarh, with 12 per cent interest. Respondent No.1, vide letter dated April 08, 2005 (Annexure P-7) rejected the claim of the petitioner on the ground that his case was not covered under Rule 6 of the Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Rules, 1999 as amended vide Notification dated January 24, 2001, by way of the rules called as Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Amendment Rules, 2001 (hereinafter referred to as `the Rules') because the D.A.V College, Hassangarh, where the petitioner was previously working, had been closed down and he had already drawn C.P.F (both shares). The petitioner again sent representation along with undertaking dated October 05, 2005 (Annexure P-8) to the effect that he was ready to deposit the management share of C.P.F amount in D.A.V. Coillege, Hassanpur along with 12 per cent interest thereon upto the date of deposit, or as calculated by the office of respondent No.1 and that the amount would be deposited out of his C.P.F amount of C.R.K. College, Jind, which was lying with the College. In response to Annexure P-8, Respondent No.1 wrote letter dated November 30, 2005 (Annexure P-9) reiterating the stand as was conveyed to the petitioner vide letter Annexure P-7. In this petition, the petitioner has prayed for quashing of the orders (Annexures P-7 and P-9) with a further prayer that a direction be issued to the respondents to release his pensionary benefits by counting his service in D.A.V. Coillege, Hassangarh, along with interest at the rate of 18 per cent -4- Civil Writ Petition No.2799 of 2007. per annum. In the written statement filed by respondent No.1, it has been averred that the petitioner left the D.A.V. College, Hassangarh on September 05, 1983 and joined the C.R.K. College, Jind, on September 06, 1983 in his personal interest. He had drawn his C.P.F share of D.A.V. College, Hassangarh. His C.P.F share deduction started from May 01, 1984. Hence, there was a break of C.P.F deduction for a period of eight months and 24 days. Since the petitioner had drawn the full amount of C.P.F share from previous college i.e D.A.V. College, Hassangarh, he should have deposited the C.P.F amount in C.R.K. College, Jind according to Rule 6 of the Rules. However, he ignored this fact. In this case, the C.P.F share of the petitioner was not transferred to C.R.K. College, Jind. It has been further pleaded that the benefit of pay protection given to the petitioner, does not entitle him for the pensionary benefits. The service rendered by the petitioner in D.A.V. College, Hassangarh cannot be counted for the grant of pension and gratuity. It has been stated that the orders (Annexures P-7 and P-9) passed by respondent No.1 are legal and fair and do not violate the principles of natural justice. Principal, C.R.K College, Jind (respondent No.2) did not choose to file any reply. We have heard Mr.K.L.Arora,Advocate, appearing for the petitioner and Mr. S.K. Hooda, Senior Deputy Advocate General, appearing for the State of Haryana and have gone through the records of the case. -5- Civil Writ Petition No.2799 of 2007. The only ground on which the claim of the petitioner for counting his service from October 14, 1974 to September 05, 1983 i.e for eight years and eleven months rendered in D.A.V. College, Hassangarh, for the purpose of grant of pension and gratuity, has been contested is that he had drawn the C.P.F share of D.A.V College, Hassangarh, where he was previously working as a Lecturer in English and that he had not deposited this amount after joining C.R.K. College, Jind. His C.P.F share deduction in C.R.K. College, Jind, where he joined through proper channel, started from May 01, 1984 whereas he left D.A.V. College, Hassangarh on September 05, 1983 and joined C.R.K. College, Jind, on September 06, 1983. As such, there was a break of eight months and 24 days in C.P.F deduction. In support of their plea, the respondent-State has relied upon the proviso to Rule 6 of the Rules. It reads as under:- “Rule 6. Qualifying service. The service of an employee shall qualify for retiral benefits under this rule as under:- (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) Service rendered in one or more private affiliated College, receiving grant- in-aid under the same management. -6- Civil Writ Petition No.2799 of 2007. (v) Service rendered on aided sanctioned post in any aided College in the State of haryana. Provided further that the Contributory Fund Account of the employee in the previous college continued as such in the subsequent college to which he is transferred or appointed and there is no break in service or the service condition as modified by the Government from time to time.” The petitioner in this case retired on August 31, 2003. Sub-rule (3) of Rule 17 of the Rules, which, as stated above, came into force vide Notification dated January 24, 2001, provides as under:- “The employees who have retired on or after coming into force of these rules and have already drawn the employer's share of Contributory Provident Fund together with interest accrued thereon and they (or in case of death of such an employee, his legal heirs) are not in position to refund the same in cash, may be allowed to adjust the same against the amount -7- Civil Writ Petition No.2799 of 2007. of gratuity or arrears of pension that may be admissible to them. In such cases the employer's share of Contributory Provident Fund together with interest accrued thereon shall be refunded with 12 % interest on the amount actually drawn, calculated from the date of drawal of the said amount to the date of refund or adjustment and if there still remains any due amount it will be adjusted by non-payment of pension till recovery of the total amount is adjusted.” Sub-rule (4) further provides that: “The date of drawal and refund of the mount of employer's share together with interest thereon shall be recorded in the service book and the entry shall be attested after verification by the Director. The concerned employee or their legal heirs, as the case may be, shall give an undertaking in writing to the effect that he has no objection to such recovery or adjustment. The petitioner should have been given the benefit -8- Civil Writ Petition No.2799 of 2007. which had accrued to him on account of the Notification dated January 24, 2001 whereby the Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Rules, 1999, with certain amendments, were replaced by the Haryana Affiliated Colleges (Pension and Contributory Provident Fund) Amendment Rules, 2001 with effect from January 24, 2001, the petitioner having retired from service on on August 31, 2003. The words “the employees who have retired on or after coming into force of these Rules and have already drawn the employer's share of Contributory Provident Fund” shall apply to those who retired on or after January 24, 2001. So far as contention of the respondent-Department that there was a break of eight months and 24 days in C.P.F deduction after the petitioner had joined C.R.K. College, Jind is concerned, it is of no relevance because the petitioner had left D.A.V. College, Hassangarh on September 05, 1983 and joined C.R.K. College, Jind on September 06, 1983. If the management of C.R.K. College, Jind, started deducting C.P.F from the salary of the petitioner from May 01,1984, no blame can be foisted for this on the petitioner. Once the petitioner had given an undertaking to the respondent- Department to the effect that he was ready to deposit the management share of C.P.F amount in D.A.V. Coillege, Hassangarh along with 12 per cent interest thereon upto the date of deposit, or as calculated by the office of respondent No.1 and that the amount would be deposited out of his C.P.F amount of C.R.K. College, Jind, which was lying with the College, the -9- Civil Writ Petition No.2799 of 2007. respondent-Department should have accepted his undertaking and reckoned/released his retiral benefits after taking into account his service rendered in D.A.V. Colldge, Hassanpur. For the aforesaid reasons, this writ petition is alloowed, orders dated April 08, 2005 (Annexure P-7) and dated November 30, 2005 (Annexure P-9), are quashed and the respondent-Department is directed to re-calculate and release the pensionary benefits to the petitioner after reckoning his service rendered in D.A.V. Ciollege, Hassangarh and accepting his undertaking regarding refund of the amount of employer's share of C.P.F already submitted by him. The respondent- Department may take fresh undertaking in this regard from the petitioner. The whole process be completed within three months from the date of receipt of a copy of this order. There shall be no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE January 23, 2008. ak