Case: SURINDER NATH KESAR Vs. BOARD OF SCHOOL EDUCATION

preceding the interruption should not be less than five years duration. In cases where there are two or more interruptions, the total service, pensionary benefits in respect of which shall be lost if the interruptions are not condoned should not be less than five years. (3) The interruption should not be of more than one years duration. In cases where there are two or more interruptions, the total period of all interruptions to be condoned should not exceed one year. As the service of the petitioner preceding the interruption was less than five years, the break cannot be condoned in terms of this rule. No other provision was brought to my notice on the basis of which the break can be condoned so as to entitle the petitioner to claim pension after counting his previous service in the Industries Department. 10. Rule 4.23 does not permit condonation of interruption of more than one years duration, hence the case of the appellant was not covered under Rule 4.23. It was due to this reason that a letter was written by the Government for obtaining relaxation under Rule 4.23. In letter dated 24.08.2000 of Director, Secondary Education Haryana, Chandigarh (Annexure P-15) it was provided that relaxation be obtained in Rule 4.23 of Punjab Civil Services Rules Volume II from Finance Department through Commissioner and Secretary, Haryana Govt. Education Department. In letter dated 24.08.2000, following was stated:- As such in view of the audit objection you are requested to kindly obtained relaxation in Rule 4.23 of Punjab CSR Vol. II from Finance Department through Commissioner and Secretary Haryana Govt. Education Department and the same may be sent to this office. 11. The relaxation from Rule 4.23 as claimed by the appellant was not acceded to by the Government, which was communicated by letter dated 24.08.2001 of Director, Secondary Education Haryana, Chandigarh. It is useful to extract the said letter, which has been brought on record as Annexure P-16, which is to the following effect:- From Director,Secondary Education Haryana,Chandigarh. To, Secretary,Board of School EducationHaryana, Bhiwani. Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001 Subject : Regarding granting of benefit of past service to Sh. Surinder Nath Kesar, Proof Reader. With reference to your letter No.334- 35 dt. 31.07.2001 on the subject noted above. In this matter the Finance Department has declined to accept the proposal of this Department and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of CSR Vol. II. Sd/-Assistant Director Schools-1for Director Secondary Education Haryana,Chandigarh. 12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted. 13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.2001. 14. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above. 15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.200114. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension.