CWP No. 13644 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 13644 of 2010 Date of Decision: July 21, 2011 Dr. O.H. Rana …Petitioner Versus State of Haryana and others ...Respondents CWP No. 17653 of 2010 Sarla Malik …Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Tribhuvan Dahiya, Advocate for the petitioner (in CWP No. 13644 of 2010) Mr. S.K. Tamak, Advocate for the petitioner (in CWP No. 17653) Mr. Aman Chaudhary, Addl. A.G. Haryana Mr. S.C. Sibal, Sr. Advocate with Mr. V.S. Rana, Advocate for respondent No.3. (in CWP No. 13644 of 2010) Mr. Anurag Goyal, Advocate for respondent No.3 (in CWP No. 17653 of 2010) 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of CWP Nos. 13644 and 17653 of 2010, because both the petitions would lead to a common question CWP No. 13644 of 2010 -2- of law, namely, whether the past service rendered by a retiree before joining the new employment under a pensionary scheme would qualify for pension and retiral benefits in the absence of rules particularly when the petitioner has already been paid the benefit of contributory provident fund (for brevity 'the CPF') floated by the earlier employer. 2. The facts have been taken from CWP No. 13644 of 2010. The petitioner has claimed that he served as Lecturer in Mathematics in C.R.A. College, Sonepat, which is an aided college by the respondent-State. He has prayed that services rendered by him in the aided college from 07.07.1966 to 28.08. 1978 be treated as qualifying service for pension and the same be tagged with the pensionable service rendered by him with the Kurukshetra University. It is appropriate to mention that the petitioner joined Kurukshetra University on 29.08.1978 and superannuated on 31.05.1998. The respondent-University enacted a scheme known as Kurukshetra University Employees Pension Scheme, 1997 (for short 'the Scheme'), which was formulated to afford the benefit of pension in lieu of CPF by creating a corpus fund by transferring the up-to-date contribution made by the University along with interest accrued there on in respect of employees who were in service on 01.04.1995. However, under Clause 4 (vii), it was provided by way of amendment that the benefit of past qualifying service towards pension to the University employees coming from State Government or Autonomous CWP No. 13644 of 2010 -3- Body, Central Government or Central Autonomous Body would be regulated as per provisions contained in office letters dated 22.08.1988 and 07.01.2002 issued by the Government of Haryana, Finance Department. According to letter dated 07.01.2002 (P-11), the counting of past services for the purpose of pension has been restricted to those employees who were in service on the date of issuance of office memorandum dated 07.01.2002 (P-11) and had not been retired from service. According to the assertion made by the petitioner, Clause 4(vii) and Government instructions dated 07.01.2002 are liable to be declared ultra vires of the Constitution because by operation of the aforesaid statutory instruments, the benefit of past service is sought to be denied to the petitioner on the basis of an artificial date. It has, thus, been argued that the aforesaid Clause is violative of Article 14 and 16(1) of the Constitution and the benefit of past service could not be snatched from the petitioner for the purposes of pension. 3. The case of the petitioner is opposed by the respondent -State by filing the written statement. In para 1 of the preliminary objections, it has been asserted that the petitioner was not entitled to the benefits of counting his past service from 1966 to 1978 for the purposes of pension rendered by him in the Government Aided College because he has retired prior to 07.01.2002. The action of the respondent-University in rejecting the claim made by the petitioner vide its order dated 09.06.2010, has been supported by CWP No. 13644 of 2010 -4- the respondent-State. It is appropriate to mention that the Kurukshetra University-respondent No.3 had earlier passed an order on 09.06.2010 and the claim made by the petitioner(s) has been rejected by observing as under: “It may be mentioned here that it has been clearly mentioned in the office memorandum No. 1/2 (4) 96-2 FR-II dated 07.01.2002 issued by the Government of Haryana that this O.M. would apply to the employees who are in service and have not been retired from service on the date 07.01.2002. This O.M. shall not apply in the case of employees already retired from or who have been re-employed after retirement in cases where the selection/ appointment in the order entity is not through proper channel. Sh. O.H. Rana was retired on 31.05.1998 hence, O.M. does not apply in his case. As such, he is not eligible for counting of past service.” 4. We have heard learned counsel for the parties at a considerable length. 5. In order to appreciate the controversy it would be necessary to read Clause 4 of the Scheme, which is as under: “4. QUALIFYING SERVICE (i) All service interrupted or continuous paid by the CWP No. 13644 of 2010 -5- University and for which University share is contributed towards Pension fund shall be treated as qualifying service. The period of break shall be omitted while working out aggregate service. xx xx xx xx (vii) The grant of benefit of past qualifying service towards Pension to the University employees coming from State Govt. or autonomous body (both under the Govt. of Haryana), Central Govt. or Central Autonomous Body, and vice-versa will be regulated as per provisions contained in office letters No.1/2(77)-87-2FR-II dated 22.8.1988 and No.1/2(4)-96-2FRII dated 7.1.2002 issued by the Govt. of Haryana, Finance Department, or any other instructions issued in this regard by the State Govt. from time to time and adopted by the University.” 6. A perusal of the aforesaid provisions would show that for securing the benefit of past qualifying service towards pension, the University employee must be a former employee of the State Government or Autonomous Body both under the Government of Haryana or Central Government or Central Autonomous Body and vice versa. The aforesaid provision is further subject to office memorandum dated 07.01.2002, which reads as under: “3. Definition of Statutory Body/ Autonomous Body: CWP No. 13644 of 2010 -6- In order to be eligible for the benefit under this Office Memorandum, an employee must have rendered service in a State Autonomous Body/ Statutory Body: (i) that has been created under a Statute/ Act of a State/ Central Government; and (ii) is financed wholly or substantially from the cess or Central/ State Government grants. “Substantially” means that more than 50% of the expenditure of the autonomous bodies is met through cess or Central/ State Government grants. Explanation: A State Autonomous Bodies includes a State University but does not include a Public Sector Undertaking/ Public Enterprise/ Company registered under the Companies Act/ Society registered under the Societies Registration Act/ and private bodies and managements. 4. Scope of the Office Memorandum: This O.M. would apply to the employees who are in service and have not been retired from service on the date of issue of this O.M. and also subject to the condition that such employees applied for the job from one organisation to the other through proper channel or should have been absorbed in the service with the prior consent of parent employer of the employees CWP No. 13644 of 2010 -7- concerned or appointed on transfer basis.” 7. A perusal of the aforesaid provision would show that in order to be eligible for benefit under the office memorandum dated 07.01.2002, an employee must have rendered service in state autonomous body/ statutory body which might have been created under a statute promulgated by the State or the Central Government. According to the explanation appended to Clause 3, a State Autonomous Body would include a State University but it would not include a Public Sector Undertaking/ Public Enterprise/ Company registered under the Companies Act / Society registered under the Societies Registration Act and private bodies and management. It is, thus, evident that service rendered in a private college would not be covered because it even exclude public sector undertaking, public enterprises and public companies which might be registered under the Companies Act. It would be further difficult for the petitioner to secure the benefit of office memorandum dated 07.01.2002 , if the provisions of Clause 4 are kept in view. Office memorandum is to apply to the employees who were in service and had not retired on 07.01.2002. Logically speaking even if the cut of date is declared arbitrary, the petitioner would not succeed because he fails to satisfy many other norms. Accordingly, we are of the view that the case of the petitioner would not be covered by the Office Memorandum dated 07.01.2002 because the services rendered by him from 07.07.1966 to 28.08.1978 is to a completely private body and he CWP No. 13644 of 2010 -8- was not in service on 01.07.2002 . Moreover, the petitioner had already secured his CPF from the previous employer, namely, C.R.A. College, Sonepat in lieu of the service rendered by him. It is well settled that once a person secures the payment of CPF then subsequently he cannot turn around and ask for switching over to pensionary benefits because in the former case, the relationship of an employer and employee comes to an end by accepting the lump- sum amount of CPF whereas in the latter case the relationship continues. The aforesaid rationale has been adopted and applied by five judge Constitution Bench of Hon'ble the Supreme Court rendered in the case of Krishena Kumar v. Union of India (1990) 4 SCC 207. The principles were also considered by a Full Bench of this Court in a judgment rendered in the case of Sher Singh Ghuman v. State of Haryana 1992 (1) SLR 14. 8. We are not impressed with the argument that the provision made for excluding the benefit of past service rendered by the petitioner is arbitrary or it violates the Article 14 and 16 of the Constitution. When the petitioner has accepted the CPF in the year 1978, it would not lie in his mouth at the time of his retirement on 31.05.1998 that he wishes to avail the pensionary benefits in respect to the service rendered by him in C.R.A. College, Sonepat. The value of the money received by him in the year 1978 cannot be compared with the value of the same amount in the year 1998. The aforesaid reasoning is the basis of the judgment rendered in Krishena CWP No. 13644 of 2010 -9- Kumar's case (supra) and Sher Singh Ghuman's case (supra). In those cases also, challenge to the fixation of the date was repelled, therefore, we do not find any legal infirmity which may necessitate issuance of a declaration that the aforesaid provision is ultra vires of Article 14 and 16 of the Constitution. The petitions do not warrant admission and lack merit. 9. As a sequel to the above discussion, the writ petitions fail and the same are dismissed. 10. A photocopy of this order be placed on the file of connected case. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE July 21, 2011 Atul