CIVIL WRIT PETITION NO.16817 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 22 , 2009 Vijay Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Divay Sarup Sharma, Advocate for Mr. Vikram Singh, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who has retired as Principal from Government Senior Secondary School, Siwani Mandi, Bhiwani, is aggrieved against the action of the Government in not counting his service rendered on a post in a private but aided school for the purpose of pension. The petitioner, thus, seeks quashing of the order rejecting his prayer and further direction to the respondents to count the said service for the purpose of pension and other retiral benefits. The petitioner was appointed as a Science Master on CIVIL WRIT PETITION NO.16817 OF 2007 :{ 2 }: 21.7.1972 in Jat High School, Hisar being run under the Jat College Management Committee. On 26.9.1989, the petitioner was selected and appointed as Head Master in the Haryana Education Department. On being relieved from Jat High School, the petitioner joined the Government service. Jat High School, though is under the management of Jat College Committee but is fully funded by the Government of Haryana. On 23.3.2006, the petitioner gave a representation for counting his service rendered in Jat High School for the purpose of pensionary benefits. Soon thereafter the petitioner retired as a Principal of Government School on 31.3.2006. Seeing no action on his representation, the petitioner served a legal notice on 13.11.2006. When no action was taken on the legal notice as well, he filed Civil Writ Petition No.2003 of 2007. The said writ petition was disposed of on 5.2.2007 with a direction to the respondents to decide the legal notice served by the petitioner by passing a speaking order. The respondents thereafter rejected the claim of the petitioner on 31.5.2007. While rejecting the claim, the respondents have relied upon Rules 3.12 and 3.16 of the Civil Services Rules, Volume II (hereinafter called, “the Rules”). It is made out that the petitioner is not entitled to count the period of service rendered by him in Jat High School for the purpose of retiral and pensionary benefits. The petitioner has now challenged this order through the present writ petition. In response to a notice, the respondents have filed written statement and have justified the impugned order. In the reply, the respondents have noticed that the petitioner had rendered service in CIVIL WRIT PETITION NO.16817 OF 2007 :{ 3 }: an aided school from 21.7.1972 to 26.9.1989. It is stated that this service rendered by the petitioner was purely in Government aided private school under the management of a school registered under the Societies Act. It is, thus, urged that the service of a Government employee does not qualify for pension, unless it confirms to the following conditions in terms of Rule 13.12 of the Rules:- i. The service must be under Government. ii. Employment must be substantive and permanent. iii.The service must be paid by the Government. Reference is also made to Rule 3.16 of the Rules, which provides that service of the Government employee does not qualify unless he is appointed and his duties are regulated by the Government. It is accordingly stated that the employees of Municipality, grant in aid schools and establishment paid from the house hold allowance of the Government are not entitled for pension. Unwittingly, however, the respondents in the reply have conceded that the Government had provided grant in aid to the management of the school for functioning of the school. However, relying upon the provisions of the Civil Service Rules referred to above, it is submitted that this service can not be taken into account for computing the pensionary benefits claimed by the petitioner. Counsel for the petitioner would contend that service rendered by the petitioner in Jat High School was on a post, which was receiving grant in aid. The petitioner, as per the counsel, had joined the Government department by applying through proper channel. As per the counsel, from the reading of Rule 3.12 in the light of Rule 3.16, it can be said that the conditions for counting the CIVIL WRIT PETITION NO.16817 OF 2007 :{ 4 }: service for the purpose of pension would stand satisfied. As per the counsel, the three conditions contained in Rule 3.12 are explained in Rule 3.16 (a), and relevant aspect is as under:- i. The service of a Government employee does not qualify unless he is appointed and his duties and pay are regulated by the Government or under conditions determined by the Government. The counsel has referred to some judgments in support of his contention. He has placed reliance on a Division Bench judgment of Rajasthan High Court in the case of Union of India and others Vs. Jawahar Lal Sharma, 2003 (3) RSJ 672. Division Bench in this case has held that previous service rendered in Government aided institution receiving more than 50% grant in aid shall be counted in future Government employment. The counsel also seeks support from two Division Bench judgments of this Court in the cases of Harnandan Singh Vs. State of Punjab and others, 2007 (2) RSJ 437 and Charan Singh Vs. State of Punjab and others,, 2006 (6) SLR 624. In Harnandan Singh's case (Supra), counting of past service rendered in a privately managed aided Institution after it had been taken over was held entitled to be counted for pension. The letters vide which the schools were taken over were ignored while allowing the period to count towards the pension. While allowing to count this service for pension, reference has been made to scheme prepared in the year 1992 by the Punjab Government, whereby the Government had granted pensionary benefits like gratuity to the teachers of the privately managed aided school in the State of Punjab. Somewhat similar view was taken by the Division Bench in CIVIL WRIT PETITION NO.16817 OF 2007 :{ 5 }: the case of Charan Singh (supra). The petitioner therein was denied pension on the ground that the service rendered in the school while it was run by private management though receiving aid can not be counted as service for the purpose of grant of retiral benefits. The Court held the petitioner therein entitled to pension and retiral benefits as his service in the school prior to its taking over by the Government was made pensionable one. The Division Bench in this case had relied upon a Supreme Court decision in the case of Chander Sain Vs. State of Haryana and others, AIR 1994 Supreme Court 972. In the case before Hon'ble Supreme Court, the appellant therein had joined the service as Director, Physical Education in Government aided College, which was subsequently taken over by the State Government and he was absorbed in the service of the Government. The question arose whether gratuity payable to him was required to be counted on the basis of the entire period of service rendered by him while serving in the College privately managed or only by counting the service from the date the College was taken over by the State Government. The Supreme Court held as under:- “The mere fact that appellant did not retire prior to the take over of the college by the State Government, but retired after it was so taken over, does not mean that he is not entitled to claim gratuity in respect of the period of service rendered by him before the college was taken over by the State. If the appellant would have been entitled to payment of gratuity on the basis of the service rendered by him when the college was under private CIVIL WRIT PETITION NO.16817 OF 2007 :{ 6 }: management if he had retired prior to the college being taken over by the State Government, there appears to be no reason, why the said period of service of the appellant while the college was under private management should be ignored for the purpose of computing gratuity payable to him. Merely because he retired after the college had been taken over by the State Government that shall not make any difference.” I am conscious of the fact that in the cases of Harnandan Singh and Charan Singh (Supra), the school/Colleges where the services were rendered had been taken over subsequently by the Government and in this background, the Court had come to the conclusion that the service rendered in the aided school was required to be counted for the purpose of pension and retiral benefits. However, the ratio that can be culled out from these judgments and that of the Supreme Court is that if the service rendered in a privately managed school on an aided post is made pensionable, then that benefit can not be denied to him merely after appointment on a Government post on the ground that the service rendered was in a privately managed school. The plea is that if the service rendered by the petitioner in a Jat High School is made pensionable, then equity and fairness would demand that this should be counted towards his pension as well. Reference here may be made to a notification issued by the Haryana Government on May 31, 1999, whereby Government has made Rules regulating the pension and contributory fund for the aided schools. These rules are called Haryana Aided Schools CIVIL WRIT PETITION NO.16817 OF 2007 :{ 7 }: (Pension and Contributory Provident Funds) Rules, 1999. As per Rule 3 of the said Rules, these Rules are to apply to all the employees who are appointed on a aided sanctioned post on or after 11th May, 1998 and to those who were working on the aided sanctioned post immediately before 11th day of May, 1998 and continuous to work as such thereafter. Rule 4 provides the nature of retirement benefits that shall be admissible and these are pension, death-cum-retirement gratuity, service gratuity and family pension. The qualifying service for grant of retiral benefits is regulated by Rule 5, which provides that service rendered on attaining the age of 18 years on approved post admitted for grant in aid and the service on an aided sanctioned post on regular basis, the service rendered until the attainment of 60 years in the case of Group D employees and in case of other service rendered until the attainment of 58 years. In short, the service rendered by an employee on the Government aided post has now been made pensionable in terms of these rules. It is, thus, to be seen whether this service now can be excluded for the purpose of grant of pension. If the petitioner had continued to serve on an aided post in a private school, he would have been entitled to count his service rendered therein for the purpose of pension and other retiral benefits. Would that service be lost to him for the purpose of pension because he has subsequently gone on to join a Government job, which is again a pensionable one? If the result is allowed to operate in this manner, it will be unfair, inequitable and harsh. The ratio of law as laid down in the case of Harnandan , Singh, Charan Singh and Chander Sain (supra) in this background would apply to the facts of the present case. Similar view CIVIL WRIT PETITION NO.16817 OF 2007 :{ 8 }: has clearly been taken by the Division Bench of Rajasthan High Court in the case of Jawahar Lal Sharma Supra. In fact, the Division Bench of this Court in Charan Singh's case (supra) has observed that service rendered by a teacher in private school receiving aid is made pensionable and as such this service can not be ignored for grant of pension. The same is the situation here. Accordingly, I am of the view that the petitioner has made out a case for counting his service rendered on aided post in a private school for the purpose of pension and retiral benefits. The writ petition is, therefore, allowed and the respondents are directed to count the entire service rendered by the petitioner in a privately managed school and in the Government School for the purpose of pension and retiral benefits. The needful be done within a period of three months from the date of receipt of copy of this Order. All amounts due to the petitioner be released within this period, failing which the petitioner will be entitled to interest @ 6% per annum from the date it is due to the date of payment. July 22,2009 ( RANJIT SINGH ) khurmi JUDGE