Punjab-Haryana High Court
State Of Hy vs Rattan Dev Sabharwal on 15 May, 2024
Neutral Citation No:=2024:PHHC:066862
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-2965-2003 (O&M)
Reserved on 08.05.2024
Pronounced on 15.05.2024
State of Haryana and others ....Appellant(s)
Versus
Rattan Dev Sabharwal ....Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Saurabh Mohunta, D.A.G., Haryana.
Mr. Arun Singla, Advocate for the respondent.
NAMIT KUMAR J.
1. The appellants/defendants have filed the instant appeal
against judgment and decree dated 29.03.2003, whereby learned
Additional District Judge, Bhiwani, while allowing the appeal filed by
the respondent/plaintiff, has set aside the judgment and decree dated
31.10.2002 passed by learned Civil Judge (Junior Division), Bhiwani,
whereby suit for declaration filed by the respondent/plaintiff was
dismissed. Parties to the lis are hereinafter shall be referred to by their
original position in the suit.
2. The brief facts of the case are that the plaintiff was
appointed as Clerk by defendant No.2 vide letter dated 27.09.1980 on
the recommendation of the Subordinate Services Selection Board,
Haryana, Chandigarh and he joined as such on 06.10.1980. He was
further promoted to the post of Assistant on 19.08.1988 and thereafter,
he resigned from his job on 16.06.1991 after rendering service of 10
years, 04 months and 16 days. He filed a suit for declaration with the
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consequential relief of mandatory injunction to the effect that he is
entitled for pension and other benefits along with interest. The suit was
contested by the defendants by filing their separate written statements
wherein they had taken various preliminary objections to the effect that
the suit is not maintainable and the same is also barred by limitation. On
merits it was submitted that in terms of Rule 5.32(b) of the Punjab Civil
Services Rules, Volume II, Part-I (as are applicable to the State of
Haryana) (herein after referred as 'PCS Rules'), minimum 20 years of
qualifying service is required to sanction the pensionary benefits and
since he resigned from the Government service after rendering less then
20 years of service to his credit, therefore, he is not entitled for the
pensionary benefits. The suit filed by the plaintiff was dismissed by the
learned trial Court vide judgment and decree dated 31.10.2002 by
stating that firstly, the suit was time barred as the petitioner had resigned
from the service in the year 1991 and the suit was filed on 02.05.2000
after a lapse of more than 09 years and on merits also the finding was
recorded that the plaintiff is not entitled for the pensionary benefits in
terms of the relevant rules. Aggrieved by the said judgment, the plaintiff
preferred an appeal before the learned lower Appellate Court which was
accepted by the Court of learned Additional District Judge, Bhiwani
vide judgment and decree dated 29.03.2003 by recording a finding that
since denial of pensionary benefits is recurring cause of action,
therefore, the suit is not barred by limitation and on merits it was
recorded that the petitioner is entitled to proportionate pension and other
benefits as provided under Rule 6.16(2) of the PCS Rules along
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with interest @ 9% per annum w.e.f. 23.06.1991 till the releasing of
entire dues.
3. Aggrieved by the judgment and decree dated 29.03.2003
passed by the learned lower Appellate Court, the defendants/State of
Haryana have preferred the instant appeal which was admitted on
03.07.2003 and execution of the decree under appeal was ordered to be
stayed till further orders.
4. Learned State counsel submits that the judgment passed by
the learned lower Appellate Court suffers from infirmity and illegality
and deserves to be set aside. He has placed reliance upon the Rules 4.19,
6.16(2) and 5.32-A of the PCS Rules and has also placed reliance upon
the judgment passed by the Division Bench of this Court in
Ghanshyam Dass Relhan Vs. State of Haryana and others : 2006 (23)
S.C.T. 125, to contend that the plaintiff resigned from service and had
not completed 20 years of service, therefore, is not entitled to the
pensionary benefits.
5. Per contra, learned counsel for the respondent has
supported the findings recorded by the learned lower Appellate Court
and prays for dismissal of the present appeal.
6. I have heard learned counsel for the parties and gone
through the relevant record with their able assistance.
7. Admittedly, the respondent/plaintiff joined the service as
Clerk on 06.10.1980 and he was further promoted to the post of
Assistant on 19.08.1988. Thereafter, on 16.06.1991, he resigned from
the service after rendering service of 10 years, 04 months and 16 days.
On the basis of aforesaid service rendered by him, the
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respondent/plaintiff claimed pensionary benefits. Now, the question
arises is as to whether the respondent/plaintiff is entitled for pension and
other benefits along with interest for the abovesaid period or not. The
Hon'ble Division Bench of this Court in its judgment passed in
Ghanshyam Dass Relhan's case (supra), while considering the Rules
4.19, 6.16(2) and 5.32-A of the PCS Rules, held that the employee who
resigned from service and has not completed 30 years of service is not
entitled for the pensionary benefits. The said judgment is reproduced as
under :-
"1. The petitioner was inducted into service in the office of
the Deputy Commissioner, Hisar, as a clerk on 7.11 1958. He
continued to discharge his duties in the aforesaid office till
10.1.1970 where after, he came to be transferred to the office
of the Deputy Commissioner, Karnal, on 11.1.1970.
2. During the course of his posting in the office of the
Deputy Commissioner, Karnal, the petitioner was selected as
a Senior Accountant by the Kurukshetra Central Bank
Limited, Kurukshetra. Consequent upon his aforesaid
selection, the petitioner tendered his resignation, which was
accepted by his principal employer. In sum and substance,
the petitioner is stated to have rendered service for a period
of 18 years 2 months and 3 days with the Government from
7.11.1958 to 10.1.1970. On the basis of his aforesaid service
the petitioner seeks pensionary benefits. This claim of the
petitioner is based on his assertion, that as soon as he can
establish that he has rendered more than 10 years regular
service with his principal employer i.e. the Government, he
would be entitled to claim pensionary benefits. To
substantiate his aforesaid claim, the petitioner relies on rule
4.19 and rule 6.16 of the Punjab Civil Services Rules, Volume
II, Part I (as are applicable to the State of Haryana). A
relevant extract of the aforesaid rules is being reproduced
hereunder:-
"4.19 (a) Resignation from public service, dismissal or
removal from it either under proviso (c) to Article
311(2) of the Constitution for over anti-national
activities such as sabotage, espionage etc. or for
misconduct, insolvency, inefficiency not due to age or
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failure to pass a prescribed examination, entails
forfeiture of past service and no pension shall be
granted in the aforementioned circumstances:
Provided that in the cases of those Government
employees whose removal or dismissal results from
participation in other objectionable activities
affecting or endangering the security of the State,
such proportionate pension may be granted as may
be recommended by the Committee by the Advisers
constituted under the Haryana Civil Services (Safe-
guarding of National Security) Rules, 1971.
(b) Resignation of an appointment to take up,
with proper permission, another appointment,
whether permanent or temporary, service in which
counts in full or in part, is not a resignation of
public service.
In cases where an interruption in service is
inevitable due to the two appointments being at
different stations, such interruptions, not exceeding
the joining time permissible under the rules on
transfer, shall be covered by grant of leave of any
kind due to the Government employee on the date of
relief or by formal condonation under Rule 4 23 to
the extent to which the period is not covered by leave
due to the Government employee."
6.16.(1) In the case of a Government employee
retiring in accordance with the provisions of these
rules before completing qualifying service of ten
years, the amount of service gratuity shall be the
appropriate amount as set out in the table below,
and no additional or special additional pension shall
be granted to him.
xxx xxx xxx
6.16(2) In the case of a Government employee
retiring on or after the 1st April, 1979, in
accordance with the provisions of these rules after
completing qualifying service of not less than thirty-
three years or more, the amount of superannuation,
retiring, invalid and compassionate pensions shall
be 50% of average emoluments as defined in rule 6
19-C of these rules subject to a maximum of (Rs.
3,000/-) (Substituted vide No.1/2/1/CSR Vol.II/91-
Sr.AO(FD) dated 31.1.92) per mensem. However, in
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the case of a Government employee who at the time
of retirement has rendered qualifying service of ten
years or more but less than thirty-three years, the
amount of pension shall be such proportion of the
maximum admissible pension as such the qualifying
service of thirty-three years, subject to a maximum
of (Rs. 375/-) (Substituted vide No.1/2/1/CSR
Vol.II/91-Sr.AO(FD) dated 31.1.92) per mensem..."
3. According to the learned counsel for the petitioner,
under rule 4.19 resignation tendered by an employee, with
proper permission, to seek further employment, would not
disentitle him from retiral benefits including pension. On
the basis of rule 6.16(2), learned counsel for the petitioner
states that an employee having 10 years qualifying service
is statutorily entitled to the benefit of retiral benefits
including pension.
4. In order to controvert the contention of the learned
counsel for the petitioner, learned counsel for the
respondents has placed reliance on rule 5.32-A of the
Punjab Civil Service Rules, Volume II, Part I (as is
applicable to the State of Haryana). The aforesaid rule is
being extracted hereunder:-
"5.32-A. The rule for the grant of retiring pensions is
as follows:-
(a) A Government employee is entitled, on his
resignation being accepted, to a retiring
pension after completing qualifying service of
not less than 30 years, but a competent
authority may permit the pension to be granted
in special cases where the qualifying service is
not less than 25 years.
(b) A retiring pension is also granted to a
Government employee who is required by
Government to retire after completing 25 years'
qualifying service or more and who has not
attained the age of 55 years."
5. We have perused the rules relied upon by the counsel
representing the rival parties. In our view, rule 5.32-A is a
rule specifically drawn for a situation, as the one in hand,
i.e., where an employee during his service tenders a
resignation, such an employee is entitled to pension subject
to the condition that he has qualifying service to his credit,
of at least 30 years. The competent authority has been
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authorised to relax, in special cases, the prescribed years
of qualifying service to 25 years. In the background of the
aforesaid statutory rule and keeping in mind the case set
up by the petitioner, namely, that he has to his credit 18
years 2 months and 3 days qualifying service to his credit,
we are of the view that the petitioner is not entitled to
pension after he tendered his resignation from the
employment of his principal employer because he did not
acquire, at the time of his resignation, the minimum
prescribed qualifying service. In so far as the applicability
of rule 6.16(2) is concerned, we are of the view that the
same is applicable only to those employees who retire on
attaining the age of superannuation, and not to employees
like the petitioner who severe their relationship with their
employer before the age of superannuation.
5. For the reasons recorded above, we find no merit in
this petition. The same is accordingly dismissed."
8. The abovesaid judgment was challenged before the
Hon'ble Supreme Court in a special leave petition which was dismissed
vide judgment dated 16.07.2009 passed in Ghanshaym Dass Relhan
Vs. State of Haryana and others : 2009 (3) S.C.T. 617. The relevant
pars of the said judgment reads as under :-
"15. Having considered the submissions made on behalf
of the respective parties and the provisions of the Punjab
Civil Services Rules, we are unable to accept
Mr. Dholakia's submissions that in view of the provisions of
Rule 4.19(b) read with the latter portion of Rule 6.16(2) of
the aforesaid Rules, the petitioner will be eligible and
entitled to pro rata pension having rendered more than 10
years' service which has been indicated as the qualifying
service in the latter portion of the said Rule for the purpose
of receiving pro-rata pension.
16. In our view, Rule 4.19(a) has to be read and
understood differently from what has been urged by
Mr. Dholakia. The expression 'resignation from public
service' will have to be read disjunctively from 'dismissal
or removal from it'. The expression 'resignation from
public service' will not be qualified by the subsequent
references relating to anti-national activities. On the other
hand, the expression 'dismissal or removal from it' will be
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qualified by the said expression which would in both cases
entail forfeiture of past service and disqualification so far
as payment of pension is concerned. In other words, read
disjunctively, resignation simpliciter from public service
would entail forfeiture of past service and no pension is to
be granted in the aforesaid circumstances.
17. As far as Rule 4.19(b) is concerned it is quite clear
that resignation to take up with proper permission another
appointment, would have to be in a service, which would
count towards pension in Government service. It means
that the subsequent appointment must also be in public
service and in such a case the resignation would not
amount to resignation of public service. In such a case,
continuity in public service would be accepted in
computing the qualifying service of 30 years for grant of
pension. It is a provision similar to Rule 4.19(b) which was
relied upon by the Division Bench of the Calcutta High
Court in deciding the case of Dr. Sajal Kanti Chakraborty
(supra), and distinguishes the said case from the facts of
this case.
18. As far as Rule 6.16(2) is concerned, in our view, the
same cannot be divided into two separate compartments as
has been suggested by Mr. Dholakia. The second part of
the said Rule is a consequence of the first part, which deals
with retirement upon superannuation and not resignation,
as in the instant case. In order to be eligible for pension the
Government employee at the time of superannuation would
have to complete qualifying service of not less than 33
years or more. However, an exception has been made in the
second part of the said Rule which also allows the benefit
of pro-rata pension to employees who had rendered 10
years service or more. In our view, not having
superannuated from government service, the petitioner
cannot come within the said category and as submitted by
Mr. Patwalia, his case would instead be governed by Rule
5.32-A, which deals with resignation.
19. The said Rule clearly provides that a Government
employee is entitled on his resignation being accepted to a
retiring pension subject to his completing qualifying
service of not less than 30 years which in special cases
could be reduced to 25 years. Since the petitioner has not
completed the qualifying service of 30 years and since the
service rendered by him with the Bank would not be
counted towards Government service, the petitioner is not
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entitled to the benefit of pension under Rule 6.16(2) and
the High Court has rightly decided the issue.
20. We, therefore, see no reason to interfere with the
judgment of the High Court and the Special Leave Petition
is, therefore, dismissed, but without any order as to costs."
9. Applying the above judgments to the facts of the present
case, the plaintiff/respondent is not entitled for the grant of pensionary
benefits as he has rendered only 10 years, 04 months and 16 days of
service and resigned on 16.06.1991 on his own will. Consequently, the
present appeal is allowed and the judgment and decree dated 29.03.2003
passed by the learned lower Appellate Court is set aside and that of the
trial Court is restored and the suit of the plaintiff stands dismissed. The
decree-sheet be prepared accordingly.
10. Pending applications, if any, shall stands disposed of
accordingly.
(NAMIT KUMAR)
15.05.2024 JUDGE
kothiyal
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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