C.W.P.No.11452 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.11452 of 2009 Date of Decision:- 16.04.2012 Partap Singh ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ram Niwas Sharma, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana. *** AUGUSTINE GEORGE MASIH, J. (Oral) Petitioner has approached this Court claiming the benefit of counting the service rendered by him in private aided college prior to his joining government service for grant of pensionary benefits. It is the contention of the counsel for the petitioner that he was initially appointed as Lecturer in Mathematics in S.D. Daronacharya College, Gurgaon on 1.8.1967 and continued as such till 6.7.1976. Thereafter, he was appointed in Adarsh College, Safidon, which again is a government aided College, where he joined on 7.7.1976 as Lecturer in Mathematics. Later, on 13.1.1980, this college was taken over by the Government. He continued in government service after taking over of the college by the government till his retirement on 31.12.1999. The C.W.P.No.11452 of 2009 -2- petitioner was granted pensionary benefits on the basis of the service rendered by him in the Government College i.e. from 13.1.1980 till 31.12.1999 only while he contends that he is entitled to counting of his prior service rendered by him in Government aided colleges. This claim, he makes on the basis of the policy decision of the Government dated 7.1.2002 (Annexure P-9), wherein the service rendered by an employee with a private aided college has been approved to be counted for the purpose of grant of pensionary benefits. Although it is mentioned therein that the decision has to be effective from the said date, however, the said position has been clarified by the Department vide memo. dated 17.7.2007 (Annexure P-10) wherein the benefit has been given effect to from 11.5.1998. Counsel contends that as the petitioner retired on 31.12.1999, he is entitled to the benefit of counting of service rendered by him in private aided college for the purpose of grant of pensionary benefits. His further submission is that while he was in Government service, he had been granted the benefit of service rendered by him in the private aided colleges for granting him the benefit of selection grade. In support of this contention, he places reliance upon the letter dated 26.4.1999 (Annexure P- 12). He supports his contention by placing reliance upon a judgment of this Court passed in CWP No.11125 of 1993 titled as Dr.Romila Jain vs. The State of Haryana and another, decided on 27.1.1995 (Annexure P-1) wherein this very issue with regard to counting of the service rendered in a private aided college for the grant of selection grade has been upheld. He accordingly contends that a direction may be issued to the respondents to count the service rendered by the petitioner in private aided colleges C.W.P.No.11452 of 2009 -3- towards release of his pensionary benefits. His further contention is that the claim of the petitioner was initially accepted when he was granted the benefit of Death-cum-Retirement Gratuity by counting the service rendered by him in the private aided college and thereafter the same was ordered to be recovered from him vide memo. dated 26.11.2008 issued by the Higher Education Commissioner, Haryana (Annexure P-5). This was further reiterated vide memo. Dated 16.6.2009 (Annexure P-8). He, on this basis, prays for quashing of these two memos pleading that the petitioner had been rightly granted the benefit of service rendered by him in private aided colleges. On the other hand, counsel for the respondents submits that the petitioner is not entitled to the counting of the service rendered by him in a private aided college, especially in the light of the decision dated 7.1.2002 (Annexure P-9) which clearly states that it has been decided through the said memorandum which means that the decision was prospective in nature. Since the petitioner has retired from service on 31.12.1999, he is not entitled to the benefit as claimed by him as a consequence of the memorandum dated 7.1.2002. As regards the clarification dated 17.7.2007 (Annexure P-10), he submits that the benefit as applicable is only for grant of family pension and accordingly he prays that the writ petition being devoid of any merit may be dismissed. I have heard counsel for the parties and gone through the records of the case. The facts as stated by the counsel for the petitioner are not in dispute. The only question which needs to be adjudicated upon is the C.W.P.No.11452 of 2009 -4- issuance of the memorandum dated 7.1.2002 (Annexure P-9) wherein it has been mentioned that the decision has been taken on the said date and the effect of the clarification dated 17.7.2007 (Annexure P-10) issued by the Government with regard to the earlier memorandum. Perusal of these two memorandums would show that although the memorandum dated 7.1.2002 does indicate its applicability to be prospective in nature with regard to the counting of service for the purpose of pensionary benefits of the employees of the State Government on their appointment under the Government but while referring to this very instruction dated 7.1.2002, a memorandum has been issued dated 17.7.2007 which is clarificatory in nature which has the effect of giving effect to the instructions dated 7.1.2002 from 11.5.1998. This is clear from para 3 of the said instructions which reads as follows:- “3. These benefits will be made effective in respect of teaching employees of the taken over Colleges from the date of Pension Scheme made applicable in Private Aided Colleges i.e. w.e.f.11.05.1998.” In the light of the above, it can safely be concluded that the Government took a conscious decision to give effect to the instructions dated 7.1.2002 w.e.f. 11.5.1998 which meant that the benefit had to be given to all the government employees who are covered by the instructions dated 7.1.2002 and were in service on 11.5.1998. Since the petitioner retired on 31.12.1999 which is after coming into effect of the instructions dated 7.1.2002 in the light of the instructions dated 17.7.2007 (Annexure P-10), C.W.P.No.11452 of 2009 -5- petitioner was entitled to the benefit of counting the service rendered by him in the private aided colleges prior to the taking over of the Adarsh College, Safidon by the Government on 13.1.1980 i.e. from 1.8.1967 to 12.1.1980. The denial of said benefit to the petitioner although initially accepting the same, thus, cannot be sustained. Further, in the light of the judgment passed by this Court in Dr.Romila Jain's case (supra) which has been followed in the case of the petitioner which he had preferred for the same benefit i.e. CWP No.9973 of 1993 titled as Kartar Singh and others vs. State of Haryana and others, decided on 9.2.1998 (Annexure P-2) wherein the benefit of service rendered by the petitioner in the private aided colleges prior to the taking over of the college by the government in which the petitioner was serving ,for the grant of benefit of selection grade, which judgment has been given effect to and the consequential benefits have been released to the petitioner, would further fortify the claim of the petitioner with regard to grant of benefit of service rendered by him in the private aided colleges by counting it for grant of pensionary benefits. In the light of the above, the writ petition is allowed and the impugned orders dated 26.11.2008 (Annexure P-5) and 16.9.2009 (Annexure P-8) passed by the respondents cannot sustain and are hereby quashed. Petitioner is held entitled to the counting of his service which he had rendered in the private aided colleges i.e. 1.8.1967 to 6.7.1976 in S.D. Daronacharya College, Gurgaon and from 7.7.1976 to 12.1.1980 in Adarsh College, Safidon. It goes without saying that the petitioner will have to fulfil the conditions as imposed in the instructions dated 17.7.2007 C.W.P.No.11452 of 2009 -6- (Annexure P-10). By counting the above period of service, the consequential benefits be released to the petitioner within a period of three months from the date of receipt of certified copy of this order. April 16, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE