Civil Writ Petition No.5139 of 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: September 15, 2009 Shree Bhagwan Vashisht ...Petitioner VERSUS State of Haryana & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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: None. ***** RANJIT SINGH, J. After being discharged from the Army service on 26.9.1978, the petitioner was appointed as Registration Clerk in the office of Director, Local Bodies, Haryana on 28.11.1979. Having worked till 22.10.1980, the petitioner applied for post of Clerk on 7.8.1981. The petitioner was selected, but could not be appointed due to non-availability of the vacancies despite recommendation by the Subordinate Services Selection Board, Haryana. The Board again sponsored the name of the petitioner to Director Public Civil Writ Petition No.5139 of 2009 : 2 : Instructions, Haryana but he still could not be appointed because of 10% cut imposed on the appointments. Yet again, the Board recommended the name of the petitioner to Director, Development & Panchayat Department but there also he could not be appointed for the same reasons. Finally, Subordinate Services Selection Board sponsored the name of the petitioner to Law and Legislative Department, Haryana where the petitioner was appointed as Clerk on 12.10.1984. Having been so appointed, the petitioner filed a representation dated 12.11.1991 for granting benefit of service rendered by him in the Military service by counting it towards pensionable service as per Rule 4.3(a) CSR Volume-II. The petitioner repeated his request through another application on 13.5.1992. The petitioner also gave option to deduct the death-cum- retiral gratuity of Rs.1878/- received by him from his pay. Still, no action was taken. So another application followed by the petitioner on 20.10.1995. Still, no consideration was in sight. The petitioner, in the meantime, learnt that similar benefit had been extended to some similarly situated persons. The petitioner repeated his request again, which this time was rejected on 28.6.2006. The petitioner thereafter filed an appeal on 4.7.2006. The case was then referred to the Financial Commissioner but the same was returned to the department for taking action at their own level. In fact, on 28.2.2008 respondent No.1 advised the department to count the Military service rendered by the petitioner towards increment and pension. The department thereafter referred the case to the Government regarding clarification for charging interest on the death- Civil Writ Petition No.5139 of 2009 : 3 : cum-retiral gratuity received by the petitioner from the Army. On 25.7.2008, the Government advised the department to charge interest as per some notification dated 2.12.2004. The petitioner thereafter received a communication that he was entitled to count his service for the purpose of pension but imposed an amount of Rs.32,360/- as interest on the gratuity amount of Rs.1878/- that the petitioner was required to refund. Aggrieved against this, the petitioner immediately filed an application dated 20.8.2008 for waiving the interest. The petitioner pointed out in the application that he had already agreed for deduction of this amount from his pay as far as back in the year 1991, which prayer was repeated in the year 1992 and then year 1995. Still, the petitioner exercised the option subject to his decision on the application. Instead of deciding the application, the department has issued direction to recover this amount from death- cum-retiral gratuity or admissible to the petitioner as he was due to retire on 30.4.2009. The petitioner served a legal notice on which no action was taken and, thus, he has filed the present writ petition challenging the action of the department in charging this interest being arbitrary, illegal and not sustainable. Respondents have filed a reply. It is now conceded that the petitioner is entitled to count Military service rendered for the purposes of pension. This is so very clearly provided in Rule 4.3(a) CSR Volume-II. The respondents would justify the charging of interest on the basis of amended provision of this Rule, which contains a proviso reading as under:- “Provided further that in cases where after the issue of Civil Writ Petition No.5139 of 2009 : 4 : the orders by the competent authority on the basis of option exercised by an employee for counting of past service for pensionary purposes, if an individual does not deposit the amount of bonus/gratuity already received by him from military authorities within one month of the receipt of communication from the Government/ autonomous body, penal interest at the rate of 10% per annum shall also be charged in addition to normal rate of interest. The condition of payment of interest/penal interest shall also be applicable for military service benefit under the Punjab Government National Emergency (Concession) Rules, 1965.” No doubt, this provision would entitle the respondents to charge interest but it is to be seen if the petitioner had ever declined or failed to refund this amount which was a condition precedent for counting the service for the purpose of pension. The facts as noticed would clearly show that despite clear legal position, the respondents made the petitioner to fight for counting this service for the purpose of pension. Ever since the year 1991, the petitioner has been representing in one form or the other for counting this service. So- much-so that his prayer was rejected once. A relief which was due to the petitioner in the year 1991 was not granted to him despite clear provision in the rule. The action of the respondents in denying this relief cannot be justified by any stretch of imagination. Respondents seem to be acting in an unfair manner with the petitioner. Once they were directed to count this service for the purpose of pension as was the position in the Rule, the respondents seem to have adopted Civil Writ Petition No.5139 of 2009 : 5 : punitive posture. The petitioner has been asked to pay a sum of Rs.32,360/- as an interest on a sum of Rs.1878/-. The petitioner has not committed any wrong for which he is to be or should be penalised. The petitioner has never declined to deposit this amount. Rather he had volunteered that the amount be deducted from his pay and allowances. If the respondents had taken timely action to direct grant of pension by counting this service, the petitioner would have either deposited this amount or the said amount could have been so deducted. In any event, the petitioner could be asked to deposit this amount only when the decision was taken to count the Military service for pension and not any time before. The approach of the respondents is, thus, clearly unfair. Asking the petitioner to pay a sum of Rs.32,360/- as interest on a sum of Rs.1878/- is highly unfair, arbitrary, inequitable and hence cannot be sustained. The action of the respondents in charging interest on the amount which the petitioner was required to deposit, therefore, is set-aside. The petitioner, however, would deposit the gratuity of Rs.1878/- which he had received from the Army. If this amount has been deducted from the gratuity now payable to him, then the same shall be refunded to the petitioner less Rs.1878/- within a period of one month from the date of receipt of copy of this order by the department. The writ petition is accordingly allowed. September 15, 2009 ( RANJIT SINGH ) ramesh JUDGE