Civil Writ Petition No. 10541 of 1992 [ 1 ] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 6.4.2010 Ronki Ram .....Petitioner Versus State of Haryana and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 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: Shri S.S. Kamboj, Advocate, for Shri Avnish Mittal, Advocate, for the petitioner. Shri S.S. Patter, Senior DAG, Haryana. HEMANT GUPTA, J. The petitioner has invoked the writ jurisdiction of this Court for quashing of the communication dated 19/24.12.1991 (Annexure P.3), whereby the claim of the petitioner for grant of pension was declined as he has not completed minimum qualifying service of 20 years. The petitioner retired from the Government Service with effect from 30.9.1990 at his own request vide order Annexure P.1. The petitioner was 54 years of age at that time and has completed 14 years of regular service. The petitioner claims pension having Civil Writ Petition No. 10541 of 1992 [ 2 ] completed 10 years of qualifying service in terms of the Haryana Government letter No. 11/1 PR(FD)/81 dated 19.3.81 (Annexure P.4). Reliance of the petitioner is on Para 1 of the aforesaid circular, which reads as under:- “(1) Pension fixation formula and the scale of pension: At present, the minimum qualifying service for getting pension is 10 years and the maximum qualifying service is 33 years in case of Class I, II & II employees and 35 years in case of Class-IV employees. The pension is calculated at the rate of 1/80th of the average emoluments for each completed year of service, subject to a maximum of Rs.1000/- per month.” The said claim of the petitioner was declined vide communication dated 19/24.12.1991 (Annexure P.3) as neither the petitioner has completed minimum qualifying service of 20 years nor he is 55 years of age. In the written statement, it is pointed out that the qualifying service of the petitioner is 11 years 7 months and 3 days as he remained under suspension for 2 years 5 months and 5 days. The petitioner made a request for retirement, which was received in the office of the General Manager, Haryana Roadways Chandigarh on 4.9.1990. Such request of the petitioner was accepted. Reference was made to the Instructions Annexure R.II i.e., Rules 5.32-A and 5.32-B of the Punjab Civil Services Rules, inserted on 1.8.1080. A retiring pension can be granted to a Government employee after completion of 25 years of qualifying service in terms of Rule 5.32-A(b). But in terms of Rule 5.32-A(c) of the said Rule, in relation to members of Class-III service, the appointing authority can order the retirement by giving a notice of three months whereas in Civil Writ Petition No. 10541 of 1992 [ 3 ] terms of sub-clause (2) of Rule 5.32-A(c), the option with a Class-III employee is to serve a notice of not less than three months to seek voluntary retirement. Rule 5.32-B of the Rules, which stipulates about the grant of pension to a Government employee on completion 20 years service by giving three months notice in writing to the appointing authority, reads as under:- “5.32-B (1) At any time a Government employee has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. However, a Government employee may make a request in writing to the appointing authority to accept notice of less than three months giving reason therefor. On receipt of a request, the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. Thus, in terms of the aforesaid Rule, a Government employee, who completes 20 years of qualifying service alone can seek voluntary retirement. Prior to completion of qualifying service of 20 years, an employee can seek termination of the relationship by resigning from the service. The question whether an employee is entitled to pension on completion of 10 years of service came up for consideration before a Full Bench of this Court in State of Haryana v. Dr. (Mrs.) Sudha Civil Writ Petition No. 10541 of 1992 [ 4 ] Seth (RSA No. 13 of 2009 decided on18.9.2009). It was held therein that that Rule 6.16(2) contemplates grant of pension only after completion of 25 years of qualifying service. It was held to the following effect:- “We also consider it just and appropriate to deal, in the first instance, with Rule 6.16(2) of the Punjab Civil Service Rules, Volume II, Part I which is repeatedly the basis of a claim for pensionary benefits, at the hands of government employees, who having resigned from service on completion of qualifying service in excess of 10 years. Rule 616(2) aforementioned is being extracted hereunder:- “6.16(2). In the case of a Government employee retiring on or after the Ist April, 1979, in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years or more, the amount of superannuation, retiring, invalid and compassionate pensions shall be 50% of average emoluments as defined in rule 6.19C of these rules subject to a maximum of Rs.3,000/- per mensem. However, in the case of a Government employee who at the time of retirement has rendered qualifying service of ten years or more but less than thirty-three years, the amount of pension shall be such proportion of the maximum admissible pension as such the qualifying service of thirty-three years, subject to a minimum of Rs.375/- per mensem.” Based on the aforesaid rule, employees who have completed 10 years or more qualifying service, prior to severing their ties with their employer, by resigning from service, claim pensionary benefits. In our considered view, the benefit of Rule 6.16(2) certainly cannot be available to an individual who had severed his relationship with his/her employer by way of resignation. The aforesaid rule is applicable only to an individual who has retired from service. The benefit of Rule 6.16(2) aforementioned can, therefore, be availed of only by a person who retires on superannuation or invalid and compassionate grounds.” Civil Writ Petition No. 10541 of 1992 [ 5 ] The instructions referred to by the learned counsel for the petitioner dated 19.3.1981 are executive instructions. Since such executive instructions are against the statutory Rules, therefore, such instructions cannot be given effect to as the same are contradictory to the Statutory Rules. Still further Para No. 1 of the said instructions, as extracted above, is only to the effect that at present the minimum qualifying service for getting pension is 10 years. The said recital is patently incorrect as minimum qualifying service for grant of pension was never 10 years nor any such Rule has been referred to by the learned counsel for the petitioner during the course of arguments. Rule 5.32 of the Rules permits voluntary retirement on completion of 20 years of qualifying service. The petitioner does not fulfil that requirement. The relationship between the parties has been terminated on completion of about 11 years of service. With such service, the petitioner does not become entitle to the pensionary benefits. In view of the above, I do not find any patent illegality in the order dated 19/24.12.1991 (Annexure P.3), which may warrant interference by this Court in exercise of its writ jurisdiction. Hence, the present writ petition is dismissed. HEMANT GUPTA ] JUDGE 6.4.2010 ds