Surinder Nath Kesar vs Board Of School Education on 6 January, 2020


Supreme Court of India

Surinder Nath Kesar vs Board Of School Education on 6 January, 2020

Author: 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.

1

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

2
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

3
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

4
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

5
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

6
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

7
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

8
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

9
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

10
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

11
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

12
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

13
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

14
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.

15

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

16
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

18
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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