Punjab-Haryana High Court
Naresh Kumar And Ors vs State Of Punjab And Ors on 23 April, 2024
Neutral Citation No:=2024:PHHC:054939
CWP-4473-2017(O&M) 2024:PHHC:054939
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
234 WP-4473-2017 (O&M)
C
Date of decision: 23.04.2024
Naresh Kumar and others ...Petitioners
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: s. Ramandeep Kaur, Advocate for
M
Ms. Himani Gupta, Advocate for the petitioners.
Mr. Swapan Shorey, DAG, Punjab.
**
*
AMAN CHAUDHARY, J. (Oral)
1. The prayer made in the present petition is for directing the
respondentstoconsidertheclaimofthepetitionersforgrantofpensionarybenefits
by taking into account their entire service including that rendered against aided
postaswelltilltheirretirementandafurtherprayerforgrantingarrearsalongwith
interest @ 18% compound interest from due date.
2. Learned counsel submitsthatthepetitionerswereinitiallyappointed
asMasters/JBTTeacheragainstaidedpostinGovt.AidedSchool.Thereafter,their
schools were taken over by the Govt. between 1989 to 1997, Annexure P-1.
However,theserviceswhichhadbeenrenderedbythemthereinwerenotcounted
as qualifying for pensionarybenefits,leadingtofilingofthepresentpetition.The
saidprayerstandsacceptedbytheDepartment,areferenceinwhichregardismade
to para No.5 of the written statement, which reads thus:
" 5. That So for as the claim of the petitioners for counting
service rendered by them in Aided Schools, towards pay
fixation and other benefits in concerned, the answering
deponenthascarefullygonethroughtheprovisionscontainedin
the relevant Chapter dealing with the pay fixation in Punjab
Civil Service Rules, Judgments delivered by Hon'ble Punjab
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andHaryanaHighCourtandavailableofficialrecordpertaining
to such matter. A perusal of JudgmentsoftheHon'bleHighin
case of Harnandan V/S State of PunjabandCharanSinghV/S
StateofPunjabrevealedthat,theserviceonaidedposthasbeen
countedonlyforthepurposeofpensionarybenefitsandnotfor
any other purpose. In another case that relates to the State of
Punjab,CWPNo.14238of1991titledasSukhdevSinghand
others V/S State of Punjab,theHon'bleCourtdirectedtothe
respondents to count the service rendered by the petitionersin
Government Aided Privately Managed against post duly
sanctioned under Grant in Aid Scheme towards their,
'qualifying service' for pension subject to certain condition.
Hence, the petitioners are not entitled for benefits of interest."
3. The operative portion of Sukhdev Singh and others vs. State of
Punjab and others,2010(7) SLR 772, reads thus:
" 8. Before adverting to the cited decisions relied upon by
learned counsel for the parties,itmaybenoticedherethathad
the petitioners continued to serve in the Government-Aided
Privately Managed Schools, they would have got the retiral
benefits like the pension and gratuity subject to, however,
fulfillment of the eligibility conditions laid down in 'the 1992
Scheme'. Similarly, the service rendered by them in the
Education Department, Government of Punjab, after resigning
fromtheGovernmentAidedPrivatelyManagedSchools,isalso
a 'qualifying service' for the purpose of pension under Rules
3.16 read with Rules 3.17, 3.17A, 3.30 & 3.31 of the Punjab
Civil Services Rules (Vol. II) (hereinafter referred to as the
'CSR').
9. Rule 3.16 of the CSR provides that 'service' of a
GovernmentEmployeedoesnotqualifyforpensionunlessheis
appointed and his duties and pay are regulated by the
Government or under the conditions determined by the
Government.Note-Itheretoexcludescertainservicesincluding
of a Municipality or theGrant-in-AidSchoolsandInstitutions,
for the purposes of pension. Rule 3.17 contemplates that an
employeeholdingsubstantivelyapermanentpostonthedateof
his retirement, would be entitled topensionafterincludingthe
'temporary' or 'officiating' service rendered by him, towards
'qualifying service', except such temporary or officiating
services in nonpensionable establishment or when it is paid
from thecontingencies.Initially,theperiodofservicerendered
in the work-charged establishment was also excluded for the
purpose of pension but the provision to that effect was struck
downbyaFullBenchofthisCourtinKesarChandv.Stateof
Punjab and others, ( AIR 1988 Punjab & Haryana 265).
10-11. Rule 3.17A provides that all services rendered on
establishment, interrupted or continuous, shall count as
qualifying service except in the cases mentioned below,
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includingtheservicerenderedinwork-chargedestablishmentor
paidfromcontingencies.Rule3.30describesthe'service'which
satisfiestheconditionsforitsinclusionasa'qualifyingservice'
and it is apparentfromRule3.31thatthoseserviceswhichare
paid from the Government Revenuequalifyforpension.Tobe
more explicit, the service not paid from the Government
Revenue or paid from the funds in respect to which the
Government holds the position of a Trustee or paid by fees
levied by law or under the authority of the Government or by
Commission or by the grant inaccordancewithlaworcustom
ofatenureinland,orofanysourceofincomeorrighttocollect
money or paid from local funds, does not qualify for pension.
Rules 3.16, 3.17, 3.17A, 3.30 and3.31(relevantextractsonly)
read as follows :-
xx xx xx
15. Therespondentshavenowhereaverredthatthefinancial
aid under the Grand-in-Aid Scheme is not provided to the
Schools/Institutions out of the State Revenue. The service
rendered by an employee of the Government Aided
School/Institution against a sanctioned post under the
Grant-in-Aid Scheme and subject to fulfillment of other
eligibility conditions as laid down in 'the 1992 Scheme', shall
have to be countedtowardsqualifyingserviceforthepurposes
of 'pension' under Rule 3.16 read with Rule 3.17 of the CSR
(Volume- II).
16. In State of Punjab and others v. Dev Dutt Kaushal
andothers,1995(4)S.C.T.575:AIR1996SupremeCourt85,
thepensionableservicerenderedinaprivatecollegewhichwas
takenoverbytheGovernmentandtheteachersworkingtherein
were absorbed in the Government service, was held to be
'qualifying service' for the purpose of pension under the
Government.
17. In Chander Sain v. State of Haryana, 1994(2) S.C.T.
102 : 1994 (1) SCC 750, also the service rendered in a
Government-Aided-Private College which was later on taken
overbytheStateofHaryana,washeldtobecountabletowards
pension, keeping in view the terms and conditions laid down
while taking over the said College.
18. In Charan Singh v. State of Punjab and others,
2006(4) S.C.T. 151 : 2006 (6) SLR 624, a Division Bench of
this Court took the same view and placed reliance on the
above-cited two decision of the Supreme Court.
19. In Harnandan Singhv.StateofPunjab,2007(1)SCT
514, the service rendered in a Privately Managed Government
Aided School before it was taken over by the State
Government,waspermittedtobecomputedtowardspensionary
benefits in terms of 'the 1992 Scheme'.
20. The above stated decisions are the cases where the
Privately Managed Government Aided Institutions were later
ontakenoverbytheStateGovernmentalongwiththestaff.The
uninterrupted service in the same Institution before and after
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taking over by the State Government was pensionable and
therefore, it was ruled that the service rendered with the
Institution before it was taken over by the State Government,
was alsothe'qualifyingservice'forthepurposeofpensionand
other retiral benefits.
21. 2009(4) S.C.T. 32 : Civil Writ Petition No. 16817 of
2007 (V ijay Singh v. State of Haryana and others),decided
on 22.7.2009, is an instance where the writ petitioner was
serving in a Government Aided Privately Managed School
before he resigned and joined the Education Department,
Government of Haryana. A Co-ordinate Bench accepted his
claim for counting the service rendered by him in the
Government Aided Privately Managed School for the purpose
ofpensionetc.onthepremisethathadhecontinuedtoserveon
the said post in the Government Aided Privately Managed
School, he would havebeenentitledtocounthisentireservice
for the purpose of pension and other retiral benefits.
22. As has already been held that after 'the 1992 Scheme'
came into force retrospectively w.e.f. 1987, Rule 3.16, Note-1
(Sr. No. 2) is deemed to havebeenomittedand/orrelaxedand
theservicerenderedbytheTeacherslikethepetitioners,subject
to fulfillment of the conditions laid down in Pension Scheme
1992 itself, would be countable as 'qualifying service'towards
pension etc. in Government service.
23. For the reasons afore-stated, the writ petitions are
allowed and the respondents are directed to count the services
rendered by the petitioners in Government Aided Privately
Managed Schools against the posts duly sanctioned under the
Grant-in-Aid Scheme, towards their 'qualifying service' for
pension subject to however, following conditions :-
(1) The respondents shall call upon the petitioners to
furnish their exact service particulars in respect of the
service rendered by them in the Government Aided
PrivatelyManagedSchools.Suchaninformationshallbe
called within a period of two months from the date of
receivingacertifiedcopyofthisorderandthepetitioners
shall furnish the same within one month thereafter;
(2) The respondents shall also call upon the records of
the Government Aided Privately Managed Schools and
verify astowhetherornotthepetitionershaveservedin
such Government Aided Schools against the posts duly
sanctioned;
(3) The respondents shall be at liberty to ascertain asto
whether or not the petitioners had resigned from the
GovernmentAidedPrivatelyManagedSchoolstoenable
them to join the Government service;
(4) The insignificant or small break between the two
services shall be condoned in terms of Rule 7.5 (3) of
CSR (Volume-I);
(5)ThebenefitofservicerenderedinGovernmentAided
Privately Managed Schools shall be extended strictly as
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per the terms and conditions contained in 'the Pension
Scheme 1992';
(6) If some of the petitionerswhoarestillinserviceare
found to be not entitled to the benefit of their previous
service in Government Aided Schools, necessary
speaking orders to this effect shall be passed by the
respondents;
(7)Thisordershallnotbeconstruedtomeanacceptance
of claim of the petitioners to count the service rendered
by them in Government Aided Privately Managed
Schools, towards their seniority, proficiency step-up or
ACP etc. as the claim in the present writ petitions is
confined qua pensionary benefits only;
(8) The entire exercise including the payment of
consequential arrears shall be completed as early as
possible, preferablywithinaperiodofoneyearfromthe
date of receiving a certified copy of this order."
4. Learned State counsel, despite his best efforts, has been unable to
controvert the factual position and draw out any distinctive aspects in the
aforementioned judgment or cite any contrary law.
5. Inviewoftheaforesaid,thepresentpetitionisdisposedofintermsof
the judgment passed inSukhdev Singh(supra).
(AMAN CHAUDHARY)
JUDGE
2 3.04.2024
Hemant
hether speaking/reasoned
W : Yes/No
Whether reportable : Yes/No
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