RSA No.3002 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3002 of 2008 (O&M) Date of Decision:November 12 , 2009 State of Haryana etc. ...........Appellants Versus Shamsher Singh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Ms.Maloo Chahal,Deputy Advocate General, Haryana Mr.Rakesh Nehra, Advocate for the respondent ** Sabina, J. Plaintiff-Shamsher Singh filed a suit for declaration with consequential relief of mandatory injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Senior Division) Rohtak vide judgment and decree dated 17.3.2008. Aggrieved by the same, plaintiff filed an appeal and the same was allowed by the District Judge, Rohtak vide judgment and decree dated 2.6.2008 and the suit of the plaintiffs was decreed. Hence, the present appeal by the defendants-State. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment reads as under:- “ 2. The brief facts are that the appellant had joined Punjab Armed Police, Jallandhar as Constable on 25.11.1962 and thereafter he served in the State of Himachal Pardesh upto December 1969. Thereafter, he was transferred as UGC No.258 in Haryana Armed RSA No.3002 of 2008 (O&M) 2 Police Batalian, Hissar. He was shown as recruited in Haryana Police on December 1,1969 without taking into account his service rendered by him in the State of Punjab and Himachal Pardesh from 25.11.1962 to 1.12.1969. It was further alleged by the appellant that other two Police officials namely UGC Karan Singh No.1264 UGC Inder Singh No.924 of Hisar were given the benefits of their services rendered by them in the State of Punjab and Himachal Pardesh. Hence, the appellant is also entitled to the same benefits. It was further alleged that the appellant has retired from service in October 2000 from Hisar and is entitled to the qualifying services. The appellant approached to the concerned authorities for the said benefit but of no use. It was further alleged that one Constable namely Mukhtiar Singh had filed a civil suit claiming all benefits of the services rendered by him in the States of Punjab and Himachal Pardesh and accordingly his suit was decreed by the Additional Civil Judge (Senior Division), Rohtak and that the Department did not file any appeal against the said judgment and decree dated 10.5.2002 and therefore, the same has become final. It was also alleged that the appellant is also entitled for the relief sought for by him. 3. The appellant requested the respondents to give him the service benefits as claimed, but in vain. Hence, this suit. 4. The respondents filed joint written statement and contested the suit. It is alleged by the respondents that the appellant resigned on 1.12.1969 and was recruited in Ist BN HAP Ambala City and, therefore, he was not transferred to Haryana Armed Police on RSA No.3002 of 2008 (O&M) 3 1.12.1969 and that he was not shown as re-recruited in Haryana Armed Police with effect from 1.12.1969. It is further alleged that at the time of the recruitment of the appellant in Haryana Armed Police, some conditions were imposed upon him; that among those conditions one condition was that he will not claim any salary of previous period, services and seniority; that he had duly signed on his condition in token of acceptance of this condition and, therefore, he never requested the department to count his past service; that explanation unde Rule 3.17 of CSR Volume II of Part-I provides that where an employee is required for administrative reason for satisfying technical requirement to tender resignation from the temporary post held by him before joining the new appointment, a certificate to the effect that such resignation had been tendered for administrative reasons and/or to satisfy a technical requirement, to join, with proper permission the new post, may issue by the authority accepting the resignation and a record of this certificate may also be made in his service book under proper attestation to enable him to get this benefit at the time of retirement; that he has neither sought any permission from the competent authority nor any certificate is available in the service book; that under Note 3 of Rule 3.17 in clause (b), it is clearly mentioned that those employees who while holding temporary post under Central/State Government apply for the post under Central/State Government directly, without permission and resign their previous post to join the new appointment, will not be entitled to count their previous service for pension. Since the RSA No.3002 of 2008 (O&M) 4 appellant has not fulfilled the said condition laid down in Rule 3.17 of CSR Volume II part-I, hence he is not entitled to get any benefit of his past service rendered by him in Punjab and Himachal Pardesh. Rest of the allegations were denied. The respondents have also taken several preliminary objections and out of them main are that the Civil Court has no jurisdiction to entertain and try the present suit, the suit is bad for non-joinder and mis-joinder of necessary parties and the appellant has no cause of action and locus-standi to file the present suit. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to the benefit of service from 25.11.1962 to October 2000?OPP 2. Whether the plaintiff is entitled to qualify service of the period from 25.11.1962 to October 2000 towards pension, gratuity and other benefits?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form, plaintiff has no cause of action and locus standi to file the present suit?OPD 4. Whether the suit of the plaintiff is time barred and bad for misjoinder and non-joinder of necessary parties?OPD 5. Whether the civil Court has no jurisdiction to try the present suit?OPD 6. Relief” After hearing the learned counsel for the parties, I am of the RSA No.3002 of 2008 (O&M) 5 opinion that this appeal is devoid of any merit. Plaintiff joined as a Constable with Punjab Armed police Jalandhar on 25.11.1962. Thereafter, he served in the State of Himachal Pardesh upto December,1969. Plaintiff got recruited in Haryana Armed Police IIIrd BN Force with effect from 1.12.1969 and retired from service in October,2000. The grievance of the plaintiff is that his service prior to 1.12.1969 had not been taken into consideration while calculating his pension. Learned District Judge in paras 13 to 17 of the judgment has observed as under:- "13.There is no dispute of fact that three similarly situated Police officials, who had also served the State of Punjab and Himachal Pardesh in the Armed Police Services were given the benefits of their previous service after their appointments in the State of Haryana. Though this fact was specifically pleaded by the respondent in unequivocal terms in his plaint in para No.6, 7 and 10 yet the benefit in this regard was not allowed in his favour. The said paras are as under:- "6. That the other Constables served with the plaintiff in the same capacity were given benefit of past service rendered by them. Those constables are UGC Karan Singh No.1264 and UGC Inder Singh No.924 of Hisar. Their past services were counted towards the length of services on continuation of their services rendered by them in Punjab and Himachal Pardesh and the benefit of their services above said were given for pensionary benefit and others related benefit of their services." RSA No.3002 of 2008 (O&M) 6 7. That the services of UGC Karan Singh 1264 and UGC Inder Singh 920 above said were made regular by giving the benefit of services rendered by him in Punjab and Himachal Pardesh as contained in Punjab Police Rule 9.2.Volume-I." 10. That one constable Mukhtiar Singh No. 929 Gurgaon filed a civil suit No.42/2000. The suit was decreed by Mrs. Kanchan Nariala the then Civil Judge (Senior Division) Rohtak vide judgment and decree dated 10.5.2002. The defendants did not file any appeal against the judgment and decree as the LR Govt. Of Haryana opined that the case was not fit for further any appeal and has become final." 14. In reply to paras No. 6 & 7, it was averred that UGC Karan Singh and UGC Inder Singh were not serving in the said Battalion, hence, they are unable to give any reply. In earlier suits titled as Nafe Singh Versus State of Haryana and Dharam Pal Versus State of Haryana, the respondents replied that the appellant could not take the shelter of UGC Karan Singh and UGC Inder Singh as the facts and circumstances of their case may differ from the case of the appellant. Meaning thereby that the respondents have taken altogether different stand in this suit and have concealed the material facts from the Court and therefore, the case set up by the appellant claiming parity with the other Police officials was not contested by the respondents. 15.Admittedly, another Constable Mukhtiar Singh, who was RSA No.3002 of 2008 (O&M) 7 named in para No.10 of the plaint by the appellant, had filed a civil suit No. 421 in the year 2000. The same was decided on 10.5.2002 by the then Additional Civil Judge (Senior Division), Rohtak. The suit seeking declaration with consequential relief of mandatory injunction was decreed and Mukhtiar Singh was made entitled to the qualifying service of 35 years and all pensionary benefits and other benefits admissible to him for the said purpose. The services rendered by Mukhtiar Singh from 27.11.1962 to 1.12.1969 in the States of Punjab and Himachal Pardesh were ordered to be counted for the purpose of pension. The judgment and decree Exhibit P2 and P3 passed in Civil Suit No.421/2000 was admittedly not challenged by the respondents. The case of the appellant admittedly falls on the same footings. 16. The contention of the learned Govt. Pleader that the appellant was rightly not allowed the benefit of the previous service in the wake of Note-3(b) of the Rule 3.17, to my mind, has no legs to stand because his interrupted or continuous service followed by confirmation was required to be treated as qualifying service in terms of rule 3.17(A)(a), which envisages as under:- "All service interrupted or continuous followed by confirmation shall be treated as qualifying service; the period of break shall be omitted while working out aggregate service" Further sub clause d of rule 3.17(A)(a) reads as RSA No.3002 of 2008 (O&M) 8 under:- "Resignation from the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age of failure to pass a prescribed examination will entail forfeiture of past service in terms rule 4.19(a) of Punjab Civil Service Rules Volume 11" 17. In the present case, the case of the respondents from the very beginning is that the employees who have resigned their previous post to join the new appointment in the State/Central Government will not be entitled to count their previous service for their pension, whereas, the resignation submitted by the appellant was not on account of mis-conduct, insolvency, inefficiency not due to the age or failure to pass the prescribed examination. The resignation was submitted by him after his selection in the Haryana Police Services. The mandatory condition for joining the Haryana Police Service was the acceptance of the resignation by the previous department. The appellant complied with the mandatory requirement and after the acceptance of his resignation from the previous department immediately joined the Haryana Police Services without any break or interruption and therefore, I am of the view that the learned trial Court should have taken into account the rule 3.17 (A)(a) and its sub-clause-d which entitles the appellant to claim the benefit of his previous service for pension.” RSA No.3002 of 2008 (O&M) 9 The learned District Judge, thus, rightly held that once there was a provision in the rule to allow benefit of previous service for pension purposes then the plaintiff was entitled to the relief sought by him. The plaintiff had joined the service in the State of Punjab. Thereafter on creation of Himachal Pardesh, plaintiff was allocated to the State of Himachal Pardesh. On his selection in Haryana, plaintiff joined the Armed services in the State of Haryana. The relief claimed by the plaintiff has been allowed to his colleagues who were similarly situated. . In these circumstances, the learned District Judge has rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 12 , 2009 arya RSA No.3002 of 2008 (O&M) 10