Case: SURINDER NATH KESAR Vs. BOARD OF SCHOOL EDUCATION

2.1 The appellant was initially appointed by Board of School Education, Haryana, Bhiwani (hereinafter referred to as Board) on 08.05.1970 on the post of Proof Reader. The appellant due to his family circumstances voluntarily retired on 01.02.1988. The appellant submitted a representation to the Education Minister of Haryana. The Education Minister, Haryana vide his letter dated 27.03.1993 forwarded the application of the appellant recommending consideration of his case for re-appointment on humanitarian ground after treating the period of absence without pay even if be Rules have to be relaxed. The Board keeping into view the recommendation of the Education Minister resolved on 31.05.1994 granting sanction to reappoint the appellant afresh. It was observed that for giving the benefit of past service, the opinion of the Government be obtained. A fresh appointment order dated 25.07.1994 was issued to the appellant for appointment on the post of Proof Reader in the pay-scale of Rs.1400- 2600, in pursuance of which, the appellant joined on 03.08.1994. on 05.12.1994, Secretary of the Board wrote to the Secretary of Government of Haryana, Education Department seeking clarification on benefit of past service to the appellant. On 05.12.1994, the respondent No.4 clarified that past service of appellant could only be counted for the purpose of seniority and pension after giving the benefit of continuity in service and the period of his break be treated as leave without pay. The Board vide its resolution dated 31.05.1995 decided to condone the period from 02.02.1988 to 02.08.1994 by treating the same as leave without pay for continuity of service for the purpose of pension and seniority. The Financial Commissioner & Secretary, Haryana Government, Education Department wrote a letter dated 27.05.1997 regarding giving the benefit of past service to the appellant. The letter referred to Rule 4.23 of Punjab Civil Services Rules Volume II (hereinafter referred to as PCSR) which states that period of interruption of one year can be condoned for giving the benefit of pension and whereas in the case of the appellant, the period of six years is condoned for the purpose of pension. Clarification was asked for in the above regard2.2 The Board asked the appellant on 04.02.1998 to deposit alongwith interest upto 31.03.1998 amount with regard to gratuity, provident fund, leave encashment etc. as received by him consequent to voluntary retirement. On 18.01.1999, the Director, Local Audit, Haryana wrote to the Secretary of the Board that Rule 4.22 of Punjab Civil Services Rules Volume II is not attracted and relevant rule is 4.23, which rule only authorised condonation of break of service upto one year duration. The condonation can only be made by competent authority in relaxation of provisions of Rule 4.23 of PCSR. On 15.05.2000, the appellant deposited the amount with interest upto 31.03.1998. The Director, Secondary Education vide letter dated 24.08.2000 referring to audit objections requested for obtaining relaxation in Rule 4.23 of PCSR from Finance Department through Commissioner and Secretary Haryana Govt. Education Department2.3 On 24.08.2001, Director, Secondary Education, Haryana wrote to the Secretary of the Board that Finance Department has declined to accept the proposal and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of PCSR. The Board asked the appellant to deposit interest upto 31.12.2001, which was deposited on 04.01.2002. The appellant retired on 31.05.2002. After retirement certain retirement benefits were paid to the appellant, which were accepted with protest. On 02.08.2002, appellant submitted a representation to Board claiming pension. On 26.11.2002, the appellant was informed that as per Finance Department and as per pension rules he has already been paid the benefits, which were due to you on account of re-employment2.4 In July, 2002, the appellant had received the retirement benefits including the amount, which was deposited by the appellant. Civil Writ Petition No.3037 of 2003 was filed by the appellant claiming pension and other benefits of service for the period service from 08.03.1970 to 31.01.1988 and for addition of interruption of period from 02.02.1988 to 02.08.1994 in his service. Learned Single Judge referred to Rule 4.23 of PCSR. Learned Single Judge took the view that as per Rule 4.23 if the break in service has been occasioned on account of resignation, dismissal or removal, the period of interruption of service cannot be condoned. Learned Single Judge further observed that even the order of appointment is a fresh appointment order, it is not possible to compute two different spells of service as a single service. A review petition was filed by the appellant, which too was rejected on 22.11.2013. The learned Single Judge while rejecting the review petition also observed that Clause 4.22 of rules is also not attracted. The appellant, therefore, filed a LPA before the Division Bench, which has been dismissed on 21.05.2015, against which, this appeal has been filed.

Reasoning:
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.