Harjit Singh vs The State of Punjab

Rameshwar Singh Malik, J.—Petitioner impugns the order dated 28.11.2011 (Annexure P-6), wherein his service of 4 years 7 months and 90 days was not counted for the purpose of qualifying service for pension, despite the order of the Hon''ble Supreme Court dated 4.5.1987 (Annexure P-1), whereby he was ordered to be reinstated in service.

Notice of motion was issued and pursuant thereto written statement was filed on behalf of the respondents.

Learned counsel for the petitioner submits that petitioner is not claiming any back wages or arrears of salary in the present case. The only relief which is sought by the petitioner is that impugned order dated 28.11.2011 (Annexure P-6) be set aside being illegal, because his service of 4 years 7 months and 90 days has been illegally ignored while counting his qualifying service for the purpose of pension. He would next contend that petitioner was also entitled for counting of his service for 3 years 9 months and 22 days, i.e. suspension period for the purpose of qualifying service for pension. To support his contentions, he relies on the judgment of the Hon''ble Supreme Court in Bibhuti Bhushan Chaudhary v. Union of India and another, : (1997) 11 SCC 373 and also the judgment of this Court in Manohar Lal v. The State of Punjab and another, 2009(1) SCT 108. He finally prays for setting aside the impugned order, while allowing the present writ petition.

On the other hand, learned counsel for the State submits that since the Hon''ble Supreme Court did not grant the relief of continuity of service to the petitioner vide above-said order Annexure P-1, petitioner was not entitled for the said relief. Regarding suspension period, she submits that since petitioner remained under suspension for misconduct, he was not entitled for counting his suspension period for the purpose of qualifying service for pension. Learned counsel for the State also submits that petitioner retired in the year 2002, whereas he has approached this Court by way of instant writ petition after an inordinate long delay of about 8 years and thus, the petition was liable to be dismissed.

Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case in hand, the present writ petition deserves to be allowed for the following more than one reasons.

The Hon''ble Supreme Court passed the order dated 4.5.1987 (Annexure P-1) holding the petitioner entitled for reinstatement in service without back wages. The said order reads as under:-

Special leave granted, heard the learned counsel for the parties, in the peculiar facts and circumstances of the case, to hold that the appellant is entitled to be re-instated in service without back wages. The appeal is disposed of accordingly.

The contention raised by the learned counsel for the State that since the Hon''ble Supreme Court did not grant the benefit of continuity of service to the petitioner, he was not entitled for counting of his service even for the purpose of qualifying service for pension, has been found to be wholly misconceived and fallacious. Had the Hon''ble Supreme Court meant not to grant the benefit of continuity of service even for the purpose of qualifying service for pension, it would have been ordered that petitioner would be re-employed or shall be offered a fresh appointment. However, it is not the case here.

Reinstatement would mean granting status quo ante when the service of the petitioner was terminated. Once the Hon''ble Supreme Court did not grant the benefit of back wages to the petitioner, he is rightly not claiming the same. However, this claim of the petitioner has been found to be just and equitable that he was entitled at least for counting of his service for the purpose of qualifying service for pension. Undisputedly, the said period was 4 years 7 months and 90 days, as pointed out in the impugned order itself and respondent department altogether ignored this material aspect of the matter, while passing the impugned order because of which the same cannot be sustained.

The above-said view taken by this Court also finds support from the judgment of this Court in Manohar Lal''s case (supra). The relevant observations made by this Court in para 3 of the judgment, which can be gainfully followed in the present case, read as under:-

The issue involved in the present petition is no more res integra and is squarely covered by various judgments of this Court reported as Ram Kumar v. State of Punjab and others, 2005(2) SCT 388and Dhan Singh v. State of Haryana and others, 2008(3) SCT 816 (P&H). the same issue was also considered by the Hon''ble Supreme Court in case of Chamba Singh Vs. State of Punjab and others, . The Hon''ble Supreme Court while interpreting Rule 1605 of the Punjab Civil Services (Premature Retirement) Rules, 1975 wherein the expression "qualifying service" has been defined observed:-

The effect, therefore, of the punishment of forfeiture of two years for the purpose of increments is that there is deferment of increment or increments over the forfeited period or there is reduction in pay. It does not have any impact on the length of service qualifying for pension which is the qualifying service to be taken into account for the purpose of compulsory retirement. it is contended by the appellant that since Sub-Rule (3) of Rule 16.5 provides that on the expiry of the period fixed under Sub-Rule (1) or (2) of Rule 16.5, reinstatement is subject to good conduct and it is open to the department to pass a separate order not to reinstate an officer, there is a break in the service of the officer when an order is passed under Sub-Rule (1) or (2). However, reinstatement in the context of Rule 16.5 can refer only to the resumption of service for the purpose of grant of increments. Forfeiture of service for the grant of increments does not result in termination of employment. Thus, Sub-Rule (1) provides for withholding of increments of a police officer on a time-scale as a punishment. There is no reference in this sub-rule to forfeiture of service. Yet Sub-Rule (3) applies to an order under Sub Rule (1) as much as to an order under Sub-Rule (2). Under Sub-Rule (2) the forfeiture is expressly of approved service for the purpose of increments. Such forfeiture may be temporary or permanent. This Rule has no bearing on qualifying service for compulsory/premature retirement.

So far as the suspension period is concerned, learned counsel for the State could not point out any order or averment from the written statement that the suspension period was not to be counted for the purpose of qualifying service for pension. In the absence of any specific order having been passed by the competent authority, petitioner would be entitled for counting the service benefits at least for qualifying service for pension. It is not the claim of the petitioner that he should be granted the arrears of salary during that period. In this regard, the plea raised by the petitioner is also supported by the judgment of the Hon''ble Supreme Court in Bibhuti Bhushan Chaudhary''s case (supra) The law laid down by the Hon''ble Supreme Court in para 3 of the judgment, reads as under:-

The learned counsel for the petitioner has confined his submissions to the computation of the pension payable to the petitioner and has urged that although the subsistence allowance has been paid to the petitioner for the period of suspension the said period has been excluded from the qualifying service of the petitioner for the purpose of computing the pension payable to him. Having regard to the fact that the petitioner has been paid the subsistence allowance for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner and the pension payable to the petitioner should be calculated by taking into account the said period of suspension as part of his qualifying service. It is, therefore, directed that the petitioner is entitled to count the period of suspension as part of his qualifying service for the purpose of computing the pension payable to him. The amount of pension payable to the petitioner should be reassessed on that basis and the amount of arrears found payable to the petitioner as a result of such reassessment shall be paid to the petitioner within a period of three months. The writ petition is disposed of accordingly. No orders as to costs.

Reverting back to the facts of the case in hand and respectfully following the laid down by the Hon''ble Supreme Court as well as this Court, in the cases, referred to hereinabove, it is unhesitatingly held that the respondent authority proceeded on an illegal approach, while passing the impugned order (Annexure P-6) and the same cannot be sustained either on facts or in law.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned order passed by the respondent department is patently illegal and the same is declared, as such. Thus, the impugned order is hereby set aside. The respondent authorities are directed to consider the case of the petitioner for the purpose of qualifying service for pension, after counting his service for 4 years 7 months and 90 days in view of the order passed by the Hon''ble Supreme Court and also the period of suspension for 3 years 9 months and 22 days for the purpose of qualifying service for pension. Let needful be done within a period of three months from the date of receipt of a certified copy of this order and the petitioner be granted his pension, accordingly, failing which, petitioner shall be entitled for the arrears of pension alongwith interest @ 12 per cent per annum.

With the observations made and directions issued, hereinabove, the present writ petition stands allowed, however, with no order as to costs.