Dr. Rajni Kapoor vs State of Haryana

J.S. Narang, J.—The petitioner was appointed as Lecturer on August 14,1978 on ad hoc basis and in this regard experience certificate was given by the Princi-pal, Nehru College Jhajjar, copy Annexure PI. The petitioner continued to work on ad hoc basis on the post of Lecturer in Hindi upto August 25, 1982 and on that day she was appointed on regular basis through the Haryana Public Service Commission.

The services of the petitioner while working on ad hoc basis were discontinued before the summer vacations and after the summer vacations the employment on the same terms was reiterated. It is this act on the part of the government which was challenged by the petitioner along with many other Lecturers by way of filing CWP No. 8420 of 1989 and apart from the petitioner and the other Lecturers, a number of petitions had been filed by similarly situated Lecturers. The petition was allowed in terms of the decision rendered in CWP No. 4946 of 1998 and 13937 of 1998, which were decided on June 2,1989 and March 17, 1991, respectively. A categoric direction was given to the official respondents to pay the petitioners salary and other allowances for the period of summer vacations and additionally the petitioners were held to be entitled to other benefits like maternity leave, medical leave etc. in accordance with the prevailing rules. Copy of the order passed by a Division Bench of this Court reads as under :-

"M.S. Liberhan, J. (Oral) The writ petition Nos. 9869 of 1990, 3711 of 1988, 7942 of 1989, 7941 of 1989 and 8420 of 1989 are allowed in terms of decisions in CWP Nos. 4946 of 1988 and 13937 of 1990, decided on June 2, 1989 and March 17, 1991 respectively. Consequently, we direct the respondent to pay the petitioners the salary and allowances for the period of summer vacation. They shall also grant other benefits to which the petitioners are entitled to, like maternity leave and medical leave etc. in accordance with the Rules. The necessary relief shall be granted to the petitioners within six months from the date of the receipt of the copy of this order. No costs. May 12, 1993

Sd/- M.S. Liberhan Judge

Sd/- S.S. Grewal Judge"

The necessary relief was granted to the petitioner along with others.

The petitioner on completion of 20 years of service sought voluntary retirement from the post of Lecturer and in respect thereof served three months notice upon the Government. The''request for voluntary retirement was accepled vide order dated July 26,1999, copy An-nexure P6. The petitioner was relieved in anticipation of the acceptance of voluntary retirement as she had been relieved on July 16, 1999.

The petitioner has neither been given the pension, provident fund, gratuity, GIC and other retiral benefits payable to the petitioner on account of having been relied on July 16, 1999 by having been voluntarily retired. Despite requests having been made and representation dated August 28, 1999, copy Annexure P8 having been submitted, no relief has been granted by the government. Disgruntled, dissatisfied and suffering harassment, the petitioner has filed the present petition. The petition was admitted vide order dated April 25, 2000 and posted before this Bench for directions.

The Government has filed wrilten statement and has taken the stand that the petitioner had joined afresh as Lecturer in Hindi in Government College, Jind on September 4, 1981 on ad hoc basis as she had been previously relieved from her service on August 21, 1981 (Forenoon), as such a break in service has occurred i.e. w.e.f. August 21,1981 to September 3, 1981 and that this break in service was wrongly counted towards qualifying service by the concerned Principal of the College when the case of the petitioner for voluntary retirement was sent for acceptance. If this break is counted against the petitioner, she does not fulfil 20 years of qualifying service for earning pension. It is further the stand of the government that the case of the petitioner does not fall within the ambit of rule 3.17-A of the Haryana Civil Services Rules Vol. II as the peti-tioner had been appointed afresh on September 4, 1981 on ad hoc basis in the pay scale of Rs, 700-1600. Thus, the case of the petitioner cannot be interpreted to be case of interruption as envisaged in the aforesaid rule.

View of the stand taken by the government, I had directed vide order dated January 4, 2001 that the letter of appointment which has been issued to the petitioner by virtue of which she joined her duties on September 4, 1981 should be placed on record. The order dated January 4, 2001, reads as under :-

"The costs amounting to Rs. 5000/- have been duly paid by way of being deposited with the Haryana Legal Services Authority and the photocopy of the receipt thereof has been placed on the Court file.

Written statement has also been filed within the time prescribed vide order dated 8.11.2000. It has been argued by the learned Deputy Advocate General that the petitioner does not fulfill qualifying service of 20 years for earning pension as there has been a break in service from August 21, 1981 to September 3, 1981. In this view of the matter, the petitioner would not be entitled to rateable pension. It is considered necessary that the letter of appointment which has been issued and by virtue of which the petitioner had joined duty on September 3, 1981, should be placed on record. Let the needful be done within two weeks. It is further directed that the file pertaining to the petitioner vide which the letter of appointment had been issued should also be produced in Court.

Adjourned io 27.2.2001."

Despite this order, the government has not been able to place on record copy of the letter of appointment and nothing could be shown from the record which has been produced in Court. However, by virtue of CM No. 5023 of 2001, copy of the order dated August 27, 1981 issued by the Director of Higher Education Haryana, has been placed on record. This order shows that the petitioner had been given ad hoc appointment on August 27, 1981, as such, the whole stand of the Government that there was break in service from August 21, 1981 to September 3, 1981 stands belied and additionally the Government has not been able to place on record the copy of the order vide which the appointment is stated to have been made on September 3, 1981 and that the petitioner had joined on September 4, 1981.

On the other hand, the stand of the petitioner is that she had joined as Lecturer on August 14, 1978 on ad hoc basis and that she continuously worked on the said post till she was regularised on August 25, 1982. It shall be apposite to note the reply of the Government wherein it is categorically admitted that the petitioner was appointed on ad hoc basis in various government colleges from time to time without any break expect the break due to summer vacations/completion of session and that she was relieved on August 21, 1981 and subsequently she joined on September 4, 1981, as such there is a clear cut break of 14 days. However, if the order of appointment dated August 27, 1981 is taken into consideration, this statement cannot be accepted and that the plea of the petitioner that she had joined service and was appointed as Lecturer on August 14, 1978 on ad hoc basis can be definitely accepted as there is no denial by the government. It shall be apposite to note reply to para 3 of the government which is as under :-

"3. That in reply to para 3 of the writ petition, it is submitted that the petitioner was appointed on ad hoc basis in various Govt. Colleges from time to time without any break except break due to summer vacation/completion of session. However, on 21.8.1981 (F.N.) the petitioner was relieved from Government College Jhajjar due to joining of regular hand and not on completion of session. After that the petitioner was appointed afresh in some other college i.e. Govt. College Jind on ad hoc basis and she joined there on 4.9.1981 (FN). So there was a clear cut break of 14 days, so the services rendered prior to this break period cannot be counted towards qualifying services as per Haryana Civil Services Rules applicable in case of petitioner. Filing of CWP No. 8420/1989 and directions issued by the Hon''ble Court in the matter are admitted being matter of record. It is admitted that the salary of summer vacation was released to the petitioners. However, it is pertinent to mention here that the benefit of summer vacation was to be given to the lecturers who used to be relieved at the start of summer vacations/completion of academic session. However, in the present case the petitioner was relieved on 21.8.1981 (FN) due to joining the regular hand, at Govt. College Jhajjar. The petitioner was appointed afresh in some other college i.e. Oovt. College Jind and she joined there on 4.9.1981. So this break period 21.8.1981 to 3.9.1981 is not covered under the judgments mentioned in this para. The petitioner was never given the benefits of the period from 21.8.1981 to 3.9.1981 nor any salary for this period was given to her as this period was not covered under the summer vacation/break period as mentioned in judgment passed by the Hon''ble Court. This period from 21.8.1981 to 3.9,1981 was not verified by any competent authority. Order Annexure P-3 is not for the award of amount of benefit of period from 21.8.1981 to 3.9.1981. Submissions made in preliminary objection are reiterated."

The argument of learned counsel for the petitioner is that the perusal of rule 3.17-A of the aforesaid rules categorically comes to protection of the petitioner. It shall be appropriate to notice the said rules which reads as under :-

"3.17-A (a) All service interrupted or continuous, followed by confirmation, shall be treated as qualifying service, the period of break shall be omitted while working out aggregate service.

xxxxx"

The argument is that joining of the service by the petitio''ner has not been denied and that the break in service alleged to have occurred on account of summer vacations already stands decided by this Court while rendering judgment upon the petition filed by the petitioner along with others, which has already been referred here above and that the break in service if it is alleged to be read against the petitioner is not the one which can be counted against the petitioner the same can be definitely termed as interruption and the same has to be omitted while working out aggregate service,

I find weight in the argument of the learned counsel for the petitioner and it is absolutely convincing that the petitioner joined service though on ad hoc basis but has been continuously working till the time voluntary retirement was sought by the petitioner. The alleged break in service which cannot be read against the petitioner because of the facts which have been brought on record and also in the absence of production of the record when the petitioner is stated to have joined on September 4, 1981 and additionally by reading the aforesaid rule, I am satisfied that for counting aggregate service, such break, if at all is to be taken into consideration against the petitioner is not to be counted to the detriment of the petitioner.

In view of the above, the petition is allowed and the respondents are directed to release the retiral benefits accordingly by taking into consideration continuity of the service of the petitioner, as discussed above. All retiral benefits accruing therefrom be released to the petitioner within four months from the date of receipt of certified copy of this order from the petitioner or from this Court as the case may be. No order as to costs.

Petition allowed.