Civil Writ Petition No. 1573 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 1573 of 2007 (O&M) Date of decision: 23.7.2009 S.K. Aggarwal ...petitioner Versus State of Haryana and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. V.K. Jindal, Advocate for the petitioner. Mr. Yashwinder Singh, AAG, Haryana for the State. Mr. D.K. Khanna, Advocate for respondent No.2/Public Service Commission. RANJIT SINGH J. C.M. No. 4800 of 2009 Application allowed. Documents taken on record. Civil Writ Petition No. 1573 of 2007 The petitioner has filed this writ petition with the prayer is to count his service rendered in the Tele-communication Department, Government of India towards the pensionable service rendered by him with the respondent-State. This prayer, when made by the petitioner has been declined which is accordingly under challenge in the writ petition. The petitioner initially was appointed and worked as Engineer Supervisor in Tele-Communication Department, Government of India from 15.5.1971 to 22.9.1974. He was selected as Assistant Engineer in PWD (B&R) Department, Haryana. In response to an advertisement issued by Haryana Public Service Civil Writ Petition No. 1573 of 2007 (O&M) 2 Commission in the year 1973-74, this application was submitted through the proper channel. The petitioner received an interview call on 16.4.1974. There was clear stipulation therein that the persons who are already in Government Service, Quasi Government Organisations must apply on the prescribed form through their employers. They were also required to send their advance copy accompanied by prescribed form with necessary fee and certificates to reach the Commission by a particular specified date. The petitioner claims to have applied in the due process and was considered for the appointment in the Public Works Department, B&R, Haryana in the year 1974. Having served the Department, the petitioner retired on 31.5.2004 without any blemish. While in service the petitioner made various representation on 22.11.1988, 28.6.1993 and 17.12.1999 to his erstwhile employer for sending his service book to his present office i.e. PWD (B&R), Haryana. After retirement the petitioner made a request for grant of pensionary benefits after counting his service from 1971 to 1974 rendered in the Government of India, Tele Communication Department. This request was made by the petitioner on 4.10.2004. The case of the petitioner was recommended by Engineer-in-Chief, PWD (B&R). Respondent No.1, however, rejected the prayer of the petitioner. He has accordingly filed this writ petition. Besides impleading the said respondent, the petitioner has impleaded Haryana Public Service Commission also as a party respondent. Reply on behalf of the State as well as Public Service Commission has been filed. The stand taken by the State is that the Department had requested the petitioner to supply information if he Civil Writ Petition No. 1573 of 2007 (O&M) 3 had applied through the proper channel. Number of letters have also been written. Copies of all these are annexed with the reply as Annexures R-I, R-II and R-III, seeking this information. It is also stated that for 26 years while in service the petitioner never made a grievance about the same. The plea is that Tele-communication Department has failed to verify the fact whether the petitioner had applied for the post of Assistant Engineer through proper channel, the prayer of the petitioner has been declined. It is also stated that the personal file of the petitioner is not traceable. It is further made out that this is a mandatory requirement for grant of past service to a Government employee as per provision of Rule 3.17 Note 3(b) of CSR Vol. II. Haryana Public Service Commissioner has filed reply and conceded the averment made in para 4 of the petition. Thus the averment that the petitioner had applied for this post through proper channel has not been disputed by the Public Service Commission. Even the counsel appearing for the Public Service Commission has conceded this fact during course of arguments and states that the petitioner had applied through proper channel. Counsel, however, would refer to the stand taken by the Public Service Commission that instructions to the candidates were issued specifically mentioning that candidates serving the Union/State Governments would not be entitled to any past service under the respective Government. I have heard counsel for the parties. The State has not disputed the right of the petitioner to seek counting of his service rendered in the Union Government for the purpose of calculating his pensionable service by combining with the service rendered by him in Civil Writ Petition No. 1573 of 2007 (O&M) 4 the State. The only objection raised by the State appears to be that erstwhile department has not confirmed whether he has applied through proper channel or not. Accordingly, in my view the dispute whether the petitioner has entitled to count his service for pension is not an issue. Even otherwise, the Public Service Commission is not competent in any manner to say that the service rendered in one department ultimately would be countable or not. This may be for the purpose of seniority that it is so clarified. Whether this condition was told to the candidates for the purpose of counting service for pension as well. In any case, no condition contrary to the rule position could be imposed by the Public Service Commission or even by the Government. Counsel for the petitioner has drawn my attention to the latest instructions, Annexure P-12, which have been placed on record through an application filed today. He has referred with emphasis to the contents of these instructions, which are as follows: “ The benefit may be allowed to the government servants in categories (a) and (c ) above. Where an employee in category (b) is required for administrative reasons for satisfying a 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 posts, may be issued by the authority accepting the resignation. 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 Civil Writ Petition No. 1573 of 2007 (O&M) 5 time of retirement. Government servants in category (c ) will obviously, not be entitled to count their previous service for pension.” From this, the counsel would contend that even if the petitioner had tendered a resignation from the temporary post that should not be held against him for counting service for the purpose of pension. Since the reasons given by the respondents not to count this service are clearly available from the record in the form of reply filed by the Public Service Commission, this reason cannot be pressed in the service to decline the prayer of the petitioner for counting the service for the purpose of pension. Otherwise rule proposition is clear. The service rendered by the employee of Government of India is liable to be counted for the purpose of pension if he has to credit his subsequent pensionable service rendered in the State Government. Accordingly this writ petition is allowed. The directions are issued to respondent No.2 to consider the claim of the petitioner, taking him that he had applied through the proper channel and pass an appropriate order for counting the service for the purpose of pension. Pension awarded to the petitioner shall accordingly be calculated and the amount due to the petitioner be paid to him within a period of 3 months from the date of receipt of copy of this order. July 23, 2009 ( RANJIT SINGH ) rts JUDGE