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Supreme Court of India
Surinder Nath Kesar vs Board Of School Education on 6 January, 2020Author: Ashok Bhushan
Bench: M S Delhi, A Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9682 OF 2019
(arising out of SLP (C) No. 25200 of 2015)
SURINDER NATH KESAR …APPELLANT(S)
VERSUS
BOARD OF SCHOOL EDUCATION & ORS. …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed against the judgment
dated 21.05.2015 of High Court of Punjab & Haryana by
which LPA No.1747 of 2014 filed by the appellant has
been dismissed. LPA was filed by the appellant
challenging the judgment of learned Single Judge
dated 20.04.2013 in Civil Writ Petition No. 3037 of
2003 by which judgment learned Single Judge had
dismissed the writ petition filed by the appellant
Signature Not Verified
praying for grant of pension by adding interruption
Digitally signed by
ARJUN BISHT
Date: 2020.01.06
17:00:21 IST
Reason:
of service between 01.02.1988 to 03.08.1994.
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2. Brief facts of the case necessary to be noticed
for deciding this appeal are:-
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
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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
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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 regard.
2.2 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
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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
Department.
2.3 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
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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-employment.
2.4 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
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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.
3. Learned counsel for the appellant in support of
appeal contends that under Rule 4.23 what is not
condonable is only in cases where the interruption
has been caused by resignation, dismissal or removal
from service or due to participation in a strike. He
submits that appellant having voluntary retired,
which is not covered in the definition of resignation
as mentioned in Rule 4.23, he is entitled for
automatic condonation of interruption between
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02.02.1988 till 02.08.1994. It is further submitted
that the Board having passed resolution for
condonation of the aforesaid period and in
consequence of which the appellant has deposited the
gratuity, provident fund and leave encashment amount,
which was received by him at the time of voluntary
retirement, the respondents could not have denied the
benefit of adding the interruption period for
computing the pension. Resolution was passed by the
Board on 31.05.1994, which could not have been
legally reviewed after five years. He submits that
the appellant is entitled for the benefit of Rule
4.23 of PCSR.
4. Learned counsel for the State refuting the
submission of the appellant contends that Rule 4.23
as relied by the appellant is not the relevant rule,
which is applicable in the State of Haryana.
Referring to the counter affidavit, learned counsel
submits that in the counter affidavit, Annexure R-1,
the relevant clause, i.e. Rule 4.19, 4.20, 4.21, 4.22
and 4.23 as applicable in the State of Haryana has
been filed. He submits that Rule 4.23 sub-rule (3)
provides that interruption should not be of more than
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one year’s duration and in the present case,
interruption being of more than six years, Rule 4.23
does not help the appellant. He further submits that
appellant having accepted voluntary retirement on
01.02.1988 and having joined again on 03.08.1994 as a
fresh appointment, the earlier period cannot be added
for the purpose of pension.
5. This Court by order dated 09.12.2019 noticed the
difference in Rules 4.22 and 4.23 of PCSR Volume II
as claimed by both the parties. This Court directed
the learned standing counsel to produce the copy of
the gazette containing the relevant rules which were
in existence at the relevant time. During the course
of submissions, learned counsel for the State has
produced before us Punjab Civil Services Rules Volume
II as applicable in the State of Haryana. The book
also contains the amendments, which were issued in
the Rules by the Finance Department, Haryana between
01.01.1969 to 29.02.1992. The provisions of Rules
4.22 and 4.23 are same as have been filed as Annexure
R-1 in the counter affidavit of the respondents. It
appears that both learned Single Judge and Division
Bench has referred to Rules 4.22 and 4.23 of Punjab
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Civil Services Rules Volume II, which were not the
rules applicable in the State of Haryana.
6. We have no reason to doubt the authenticity of
the book, which has been produced by the learned
counsel for the State of Haryana, which contains the
provisions of Rules 4.22 and 4.23 as applicable in
the State of Haryana as Annexure R-1. We may also
notice the Rules 4.22 and 4.23 of Punjab Civil
Services Rules Volume II as has been noticed by the
Division Bench, which is to the following effect:-
“4.22. – The authority which sanctions the
pension may commute retrospectively
periods of absence without leave into
leave without allowances or extraordinary
leave.
4.23. – In the absence of a specific
indication to the contrary in the service
record, an interruption between two spells
of service rendered under the State
Government shall be treated as
automatically condoned, and the pre-
interruption service shall be treated as
qualifying service for pension purposes,
except where the interruption has been
caused by resignation, dismissal or
removal from service or due to
participation in a strike, but the period
of interruption itself shall, under no
circumstances, be reckoned as qualifying
service for pension purposes.”
7. A perusal of the material on record including the
letter dated 27.05.1997 written by Financial
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Commissioner & Secretary, Haryana Government,
Education Department, Chandigarh (Annexure P-9)
indicate that the reference has been made to Rule
4.23 providing that maximum period of interruption of
one year can be condoned. To the same effect is
letter dated 18.01.1999 written by the Director,
Local Audit, Haryana, Chandigarh (Annexure P-11),
paragraph 2 of which is as follows:-
“2. The period between the date of
voluntary retirement, i.e., 1.2.88 to the
date of fresh reappointment of the
incumbent on the same post in the Board
i.e. 3.8.94, cannot be treated as period
of absence without leave and as such rule
4.22 of CSR Vol. II is not attracted in
the case. The period rather denotes the
break/interruption in service is rule 4.23
of CSR Vol. II. Even this rule authorise
condonation of Break/Interruption upto one
year duration in the normal course and in
the instant case, the period of break in
service being six years, six months and
one day. The condonation can only be made
by the competent authority in relaxation
of provisions of rule 4.23 of Punjab CSR
Vol. II. Hence you are advised to act
accordingly.”
8. From the above it is clear that Rule 4.23 which
is applicable to the State of Haryana is one which
has been brought on the record as Annexure R-1 in the
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counter affidavit. Rules 4.22 and 4.23 are quoted
below:-
“4.22 The authority which sanctions the
pension may commute retrospectively
periods of absence without leave into
leave without allowances or extraordinary
leave.
4.23 Interruption in service either
between two spells of permanent, or
temporary service or between a spell of
temporary service and permanent service or
vice versa in the case of an officer
retiring on or after the 5th January,
1961, may be condoned, subject to the
following conditions, namely:-
(1) The interruption should have been
caused by reasons beyond the
control of Government employee
concerned.
(2) Service 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 year’s duration. In
cases where there are two or more
interruptions, the total period of
all interruptions to be condoned
should not exceed one year.”
9. We may refer to a judgment of Punjab & Haryana
High Court in which it had occasion to consider Rule
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4.23 of PCS Rules as applicable in Haryana, i.e., in
Subedar Harpal Singh, Retd. Vs. State of Haryana and
Another, (1994) 1 SLR 436. In the above case, Rule
4.23 of PCSR as appliable in case of an employee in
Haryana is quoted in paragraph 3 of the judgment. In
the above case also, the petitioner’s case was held
not covered by Rule 4.23. paragraph 3 of the
judgment is as follows:-
“3. Admittedly, the case of the
petitioner does not fall in any of the
exception, Rule 4.23, however, deals with
condonation of interruption in service and
reads thus:-
“Interruption in service (either
between two spells of permanent, or
temporary service or between a
spell of temporary service and
permanent service or vice versa in
the case of an officer retiring on
or after the 5th January, 1961, may
be condoned, subject to the
following conditions, namely:-
(1) The interruption should have
been caused by reasons beyond
the control of Government
employee concerned.
(2) Service 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
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should not be less than five
years.
(3) The interruption should not be
of more than one year’s
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 year’s 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
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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 Education Haryana,
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.
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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-1
for 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
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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 appellant’s 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
17
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
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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 appellant’s period after fresh appointment from
03.08.1994 being less than qualifying service of 10
years, he was not entitled for pension.
16. In view of the foregoing discussions, we are of
the view that the appellant is not entitled for any
relief in this appeal. The appeal is dismissed.
………………….J.
( ASHOK BHUSHAN )
………………….J.
New Delhi, ( M.R. SHAH )
January 06, 2020.
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