R.S.A. No. 936 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 936 of 2005 (O&M) Date of decision: 18-12-2009 Haryana State and Another .........Appellants Vs Nagar Mal Sharma .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri Tarunveer Vashist, Addl. A.G. Haryana for the appellants Shri P.R.Yadav, Advocate, for the respondent HARBANS LAL, J. This appeal is directed by Haryana State and another against the judgment/decree dated 14.12.2004 passed by the court of learned District Judge, Narnaul whereby he accepted the appeal of the plaintiff and dismissed the appeal filed by State of Haryana and Others and modified the judgment and decree dated 28.2.2004 passed by the court of learned Civil Judge (Junior Division) Narnaul to the extent that the defendants shall fix the pension of the plaintiff in accordance with the rules and pay the arrears of pension from the period of 3 years and 2 months prior to the filing of the suit leaving the parties to bear their own costs. The facts which led to the filing of the suit are that the plaintiff was appointed as Steno-typist in the office of Zila Parishad Narnaul in the month of August, 1968 on regular basis. Later on , that department was abolished and absorbed with the office of the Deputy Commissioner, Narnaul in the month of December, 1973. The plaintiff completed a total service of 10 years 5 months and 3 days, whereafter he resigned from the R.S.A. No. 936 of 2005 (O&M) 2 job on 18.1.1979 for the purpose of contesting election of Haryana Assembly. Earlier it was not clear whether service of Zila Parishad rendered by the plaintiff would be counted for pensionary benefits but subsequently the State Government on 22.11.1991 issued instructions to the effect that employees of Zila Parishads who were absorbed in other departments were entitled to pro-rata pension, gratuity, etc. alongwith interest over the arrears due at the rate of 18% per annum. Thus plaintiff was entitled to pro-rata pension, gratuity and other retiral benefits alongwith interest and he was ready to refund the share of the Zila Parishad's Provident Fund made from August 1968 to 30.11.1973. Having entered appearance, the defendants filed written statement inter alia pleading that the plaintiff was debarred from filing the suit by Rule 4.19(a) of the Punjab Civil Services Rules Volume II (hereinafter to be referred as the service rules) and thus, the suit of the plaintiff was time barred. However, it has been admitted that the plaintiff remained in service w.e.f. 5.8.1968 to 18.1.1979 i.e. for 10 years 5 months and 13 days. It has been denied that the plaintiff was entitled to pro-rata pension and gratuity alongwith interest. As per rule 4.19(a) ibid the plaintiff was not entitled to the relief claimed as he has resigned from the job and his resignation was accepted regarding which he was informed vide letter dated 21.12.1978. Lastly, it has been pleaded that the suit is hopelessly time barred for having been filed after a period of 22 years and 11 months. The following issues were framed by the learned Trial Court:- 1. Whether the plaintiff is entitled for pro-rata pension and gratuity as prayed for w.e.f. 19.1.1979 with interest at the rate of 18% per annum?OPP R.S.A. No. 936 of 2005 (O&M) 3 2. Whether the plaintiff is debarred from filing the present suit?OPP 3. Whether the suit of the plaintiff is time barred?OPD 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 5. Whether the plaintiff has no locus standi for filing the present suit?OPD 6. Relief After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit with costs holding that the plaintiff is entitled for pro-rata pension and for consequential benefits alongwith simple interest @ 12% per annum on the arrears of pension and other consequential benefits existing from the date of filing of the suit till realization of the amount with a direction that the plaintiff shall deposit/refund the share of Zila Parishad's Provident Fund with the authorities of defendants for the period w.e.f. August 1968 to 30.11.1973 within three months and that the defendant shall release the due arrears of the plaintiff within three months from the date of the deposit of the Provident Fund amount and the defendant shall prepare the pensionary due arrears and pro-rata pension of the plaintiff according to Rules within the said period. Feeling aggrieved therewith, both the parties preferred separate appeals, which were disposed of by the learned District Judge, Narnaul as noticed at the outset. The following substantial questions of law arise for determination by this Court. 1. Whether both the courts below have committed an error of R.S.A. No. 936 of 2005 (O&M) 4 law in not properly interpretting the Rule 4.19 of Punjab Civil Services Rules Volume II? 2. Whether both the Courts below have committed an error of law that the suit of the plaintiff was highly time barred? I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellants Mr. Tarunveer Vashist, Additional Advocate General Haryana vehemently urged that as per rule 4.19(a) of Service Rules the plaintiff-respondent having resigned from service was not entitled to retiral benefits but nonetheless, these have been allowed. Sequelly, the impugned judgment/decree being in derogation of the said rule, may be set aside. The learned counsel for the plaintiff-respondent countered this argument by urging with a good deal of force that the plaintiff-respondent had put in 10 years 5 months and 13 days service before he submitted his resignation to contest the election of Haryana Assembly, which does not fall within the purview of Rule 4.19(a) ibid. To buttress this stance, he has sought to place abudant reliance upon Om Parkash Vs. The Financial Commissioner 2007(2) LAW HERALD(P&H)(DB) 1308, Jagdish Mitter Vs. State of Punjab and another 1998(3) Recent Services Judgments 616 and Surjit Singh Vs. State of Punjab and others 1997(3) Recent Service Judgments 572. This contention merits acceptance for the discussion to follow hereunder: The main stay or sheet anchor of the appellants is rule 4.19, ibid which reads as under:- “4.19(a) Resignation from public service, dismissal or removal R.S.A. No. 936 of 2005 (O&M) 5 from it, either under proviso (c) to Article 311(2) of the Constitution for over anti-national activities such as sabotage, espionage, etc. or for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination, entails forfeiture of past service and no pension shall be granted in the aforementioned circumstances. Provided that in the cases of those Government employees whose removal or dismissal results from participation in other objectionable activities affecting or endangering the security of the State, such proportionate pension may be granted as may be recommended by the Committee of the Advisors constituted under the Haryana Civil Services (Safe-guarding of National Security) Rules, 1971) (b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service. In cases, where an interruption in service is inevitable due to the two appointments being at different stations, such interruptions, not exceeding the joining time permissible under the rules on transfer, shall be covered by grant of leave of any kind due to the Government employee on the date of relief or by formal condonation under Rule 4.23 to the extent to which the period is not covered by leave due to the Government employees. Note: The previous service of a Government employee who is R.S.A. No. 936 of 2005 (O&M) 6 transferred to a temporary appointment is forfeited by his resigning the temporary appointment and taking up another temporary appointment of his own accord.” Having back to the present one, It is to be borne in mind that it is the specific case of the plaintiff-respondent that he has resigned from the service to contest election of Assembly in Haryana State. It has not been denied or controverted in any manner by the appellants. Axiomatically, this ground to resign is not covered by Rule 4.19 ibid. In re: Jagdish Mitter (supra) the petitioner had sought voluntary retirement in the year 1966 after putting in service of 22 years. The pension was not sanctioned to him. He had to file a writ petition in 1994. This Court held as under:- “3. There cannot be any denial of the fact that a person who has put in more than 10 years of service, is entitled to the pension even though he took voluntarily retirement or resigned voluntarily. The pension is a right accrued to the employees of the State Govt. and earned by them because of their services. There cannot also be any dispute that the right to get pension is a continuing and recurring right which furnishes a recurring cause of action. In these circumstances, I am of the opinion that the petitioner is entitled to the pensionary benefits for the service of more than 22 years as he was rendered. The petitioner is now aged 73 years and any delay in releasing the pension is inexcusable. 4. Accordingly, I allow this writ petition and direct the respondents to fix the pension of the petitioner in accordance with the rules and pay the arrears of the pension for a period R.S.A. No. 936 of 2005 (O&M) 7 of three years and two months prior to the date of the filing of the writ petition i.e. February 28, 1994. This exercise shall be done within a period of two months positively. The Chief Secretary of the State of Punjab is directed to place this order complying the direction of this Court on 7.10.1998. The office to list this case for being mentioned on that day.” Further in re: Om Parkash(supra) the petitioner had joined as Deputy District Attorney with the Department of Director, Prosecution Haryana and later on he was promoted as District Attorney in the same department. It was on 6.8.2004 that he resigned from the such post after depositing one month salary and his resignation was accepted on 9.8.2004. On 10.8.2004 he was appointed as Member of Haryana Public Service Commission. It was on 23.8.2004 that he wrote a letter to the Financial Commissioner stating therein that his resignation be treated as deemed retirement in view of the provisions of Rule 5 of the Haryana Public Service ( Conditions of Service) Regulations, 1973 and Rule 4.19(b) of Civil Services Rules Volume II and emoluments deposited may be refunded to him. The Division Bench of this Court held as under:- “We are of the view that the petitioner, who has resigned from the post of District Attorney is entitled to the proportionate pension with respect to the services he has served i.e. 13 years 6 months and 25 days as is applicable to the State of Haryana. He is thus entitled to the benefits as per provisions 6.16(2) of the Punjab Civil Services, Volume-II ( as applicable to State of Haryana). We, therefore, allow the present writ petition and quash Annexure P8. The retiral benefits i.e. Pension, gratuity R.S.A. No. 936 of 2005 (O&M) 8 and leave encashment etc. be made payable to the petitioner within four months from the date of passing of this order.” In re: Mehar Singh Vs. State of Punjab 2003(2) Recent Services Judgments 344 it has been held that since the petitioner resigned after he had put in more than 10 years of service, he is entitled to pension and other retiral benefits as premature retirement from service and voluntary resignation from service will have the same effect i.e. one is retiring. In re: Haryana State Vs. Madan Pal Ahlawat 2003(1) Recent Services Judgments 490 it has been held by this Court that “rule 4.19 of Punjab Civil Services Volume II would apply only in a case where resignation is submitted by a government servant to avoid an order of dismissal or removal from service either under proviso C to Article 311(2) for anti-national activities as sabotage, espionage etc. for misconduct. This provision cannot possibly be made applicable to a voluntary resignation from service for domestic reasons. Even in case of resignation, the case would clearly fall under Rule 6.16(2) of the Rules. Since the respondent resigned from service due to domestic reasons having put in more than 10 years of service, he was clearly entitled to proportionate pension as provided under Rule 6.16(2).” Adverting to the instant one, the plaintiff-respondent had not submitted his resignation to avoid dismissal or removal from service, for anti-national activities such as sabotage, espionage etc. for misconduct, insolvency, inefficiency not due to the age or failure to pass a prescribed examination. He had resigned merely to contest Assembly elections. That being so, rule 4.19 ibid is not attracted to the plaintiff-respondent's case. Accordingly, first substantial question of law stands determined. Mr. Vashist further canvassed at the bar that the plaintiff- R.S.A. No. 936 of 2005 (O&M) 9 respondent has filed the suit after a lapse of period of 22 years and 11 months. The limitation for filing the suit for declaration being 3 years from the date of cause of action accrued, this suit is hopelessly barred by limitation. This contention seems to be attractive, but without substance for the reasons to be recorded hereinafter. As ruled by the Division Bench of this Court in re: Surjit Singh (supra) the claim for pension or other retiral benefits cannot be denied on account of delay. Further this Court has laid down in clear and unambiguous terms in re:Jagdish Mitter(supra) that “There cannot be any dispute that the right to get pension is continuing and recurring right, which furnishes the recurring cause of action.” In that case the respondents were directed to fix pension of the petitioner in accordance with the rules and pay arrears of pension for a period of 3 years and 2 months prior to the date of filing the writ petition and so has been done herein by the appellate court below. It may also be noticed that as has been put forth by the plaintiff-respondent, earlier it was not clear whether service of Zila Parishads rendered by him was to be counted for pensionary benefits, but later on the State Government on 22.11.1991 issued instructions that employees of Zila Parishads who were shifted to other departments would be entitled for pro- rata pension, gratuity etc. alongwith interest. Mr. Vashist learned counsel for the appellants has not cited any ruling in which the view could have been taken that right to get pension in such cases is not continuing and recurring right. Sequelly, the second substantial question of law is also answered against the appellants. In view of the factual and the legal position as noticed above, I find no ground to take a different view. Resultantly this appeal fails and is R.S.A. No. 936 of 2005 (O&M) 10 dismissed. Of course, having regard to the peculiarity of facts and circumstances of the case, the parties are directed to bear their own costs. All the C.Ms also stand disposed of. (HARBANS LAL) JUDGE December 18, 2009 RSK NOTE: Whether to be referred to the Reporter or not? Yes