IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 11451 of 2008 Date of Decision: 21.4.2009. Harjit Kaur --Petitioner Versus State of Punjab & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.K. Arora, Advocate for the petitioner. Mr. B.S. Chahal, DAG, Punjab. *** PERMOD KOHLI.J (ORAL) The petitioner was appointed as S.S. Mistress on ad hoc basis on 7.9.1968 on the recommendations of Employment Exchange vide order No. 220/22.E dated 5.9.1968. Her services were regularised w.e.f 17.4.1980. She retired from service on 31.3.2002 on attaining the age of superannuation. The grievance of the petitioner is that period of her ad hoc service is not being taken into consideration and counted as qualifying for purposes of pensionary benefits. The petitioner has accordingly filed this petition seeking a direction to consider and take into account the ad hoc service rendered by the petitioner from 7.9.1968 to 16.4.1980 towards qualifying service for pensionary benefits. The plea of the petitioner is being opposed by the respondents primarily on the ground that a part of the ad hoc service rendered by the petitioner was against leave vacancy and with inter mediate break whereas the part of ad hoc service was against clear vacancy and only such period of the ad hoc service can be counted which was against a clear post. CWP. No. 11451 of 2008 -2- It is stated that the ad hoc service rendered by the petitioner against vacant post w.e.f. 15.3.1977 to 16.4.1980 has been included as qualifying for purposes of pensionary benefits, whereas rest of the ad hoc service is not to be counted towards the qualifying service. The respondents have given the following details of various spells of service rendered by the petitioner against leave vacancy and against vacant post. 1. Service rendered on ad hoc basis against leave vacancy:- 7.9.1968 to 6.3.1969, 8.3.1969 to 1.5.1969, 26.9.1969 to 2.1.1970, 30.1.1970 to 14.2.1970, 7.11.1974 to 12.4.1975, 28.8.1975 to 4.9.1975 and 13.9.1976 to 11.3.1977. 2. Ad hoc service rendered against vacant post:- 12.9.1970 to 11.3.1971, 22.3.1971 to 12.6.1971, 29.7.1971 to 24.9.1971, 25.9.1971 to 3.12.1971, 15.3.1977 to 16.4.1980. Rule 3.17 deals with the counting of the ad hoc service as qualifying for purposes of pensionary benefits. “ 3.17: If an employee was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Govt. followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of :- (i) periods of temporary or officiating service in non-pensionable establishments. (ii) periods of service in work-charged establishment: and (iii) periods of service paid from contingencies. 3.17-A(1) Subject to the provisions of rule 4.23 and other rules and except in the cases mentioned below all service rendered on establishment, interrupted or continuous, shall count as qualifying service:- CWP. No. 11451 of 2008 -3- (i) Service rendered in work-charged establishment. (ii) Service paid from contingencies. Provided that after the 1st January, 1973 half of the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following condition:- (a) Service paid from contingencies should have been in a job involving whole time employment (and not part time or for a portion of the day). (b) Service paid from contingencies should have been in a type of work or job for which regular post could have been sanctioned e.g. Mails, chowkidars, khalasis etc. (c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishment. (d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break. (iii) Casual or daily rated service. (iv) Suspension adjudged as a specific penalty. 3.17-A(2) An interruption in the service of a Govt. employee caused by willful absence from duty or unauthorized absence without leave, shall entail forfeiture of the past service.” Rule 4.23 also deals with the counting of interrupted spells of service and reads as under:- “ 4.23 In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered under the State Govt. shall be treated as automatically condoned, and the pre-interruption service shall be treated as qualifying service for pension purposes, except where the CWP. No. 11451 of 2008 -4- interruption has been caused by resignation, dismissal of removal from service or due to participation in a strike, but the period of interruption itself shall under no circumstances, be reckoned as qualifying service for pension.” Rule 3.23 entitles the Govt. servant to have the benefit of the continued ad hoc service on regularisation. Rule 4.23 provides for automatic condonation of interruption within two spells of service rendered under the Govt. unless the interruption has been caused by resignation, dismissal or removal from service or due to participation in strike. This rule, however, excludes the periods of interruption from reckoning the qualifying service for pension. A conjoint reading of the aforesaid rules categorically provides for counting of ad hoc service even spreading over different spells with interruption as qualifying service for the purpose of pension by excluding the interruptions caused without resignation, dismissal, removal or participation in strike. The rule does not make any distinction between ad hoc service rendered against leave arrangement or against the vacant post and in view of the clear mandate of rule 4.23 even the different spells of ad hoc service are to be counted except in the situations mentioned therein. The issue is otherwise also stands concluded by a Full Bench and two Division Bench Judgements of this Court in cases Kesar Chand Vs. State of Punjab & Others 1988 (5) SLR 27, Bidhi Chand Vs. State of Punjab 1999 (1) Service Cases Today 481, and Joginder Singh Vs. State of Haryana 1998 (1) Service Cases Today 795. Aforesaid judgements were again followed by another Division Bench in CWP No. 19732 of 2001 decided on 14.1.2003 wherein a direction CWP. No. 11451 of 2008 -5- has been issued to count the ad hoc/temporary service towards the qualifying service for purpose of pension by condoning the interruption in service. In view of the mandate of rule 4.23 while giving the benefit of ad hoc/temporary service the period of interruption shall be excluded. This petition is accordingly allowed and respondents are directed to take into consideration all spells of ad hoc service rendered by the petitioner whether against leave vacancy or against vacant post as qualifying service for purpose of pension. However, the period of interruptions shall be excluded from reckoning. The period of qualifying service shall be redetermined by the respondents in the above manner and pensionary benefits shall be settled within a period of three months from the date certified copy of this order is served upon the competent authority. (PERMOD KOHLI) JUDGE 21.4.2009 lucky Whether to be reported to the Reporters? Yes.