Mohan Lal vs State of Haryana and others

Mohan Lal, an Assistant District Attorney, through this petition filed by him u/s 226 of the Constitution of India, seeks issuance of a writ in the nature of mandamus directing the respondents to consider the service rendered by him with the Accountant General (A & E) Punjab, and count the same towards pensionary benefits and quash the order dated May 23, 1997 (Annexure P-4) vide which his representation for the relief asked for in the present writ, was rejected.

Brief facts of the case reveal that the petitioner joined respondent No. 3 as Upper Division Clerk on June 14, 1969. He resigned from the said service and started practising as an Advocate upto 1986 when he was appointed as Assistant District Attorney. In the year 1976 the petitioner made a representation for counting his previous service towards leave and pension etc. but when the same was rejected, as mentioned above, vide order Annexure P-4, the present writ petition for the relief aforesaid was filed in this Court.

The cause of the petitioner has been opposed and two separate written statements, one by respondents 1 and 2 and the other by respondent No. 3, have been filed. The petitioner has filed replication, to which also reply has been filed by respondents 1 and 2.

It has inter-alia been pleaded in the written statement filed on behalf of respondent No. 3, that the petitioner worked under respondent No. 3 as UDC from August 14, 1969, to August 9, 1978, when he resigned from the post to join legal profession as practising Advocate. As per Rule 26 of the Punjab Civil Services Rules, Volume-II (herein-after referred to as ''the Rules'') resignation from service or a post entails forfeiture of past service. The petitioner did not seek permission to take up another appointment, whether temporary or permanent, under the Government where service qualifies for pension. After resigning the petitioner did not take up any other appointment but started practising as an Advocate and continued practice in law till 1986 when he was appointed as Assistant District Attorney; On a request received from the Assistant District Attorney, Haryana, Yamunanagar, it was certified by the office of respondent No. 3 that the petitioner served in its office as UDC from August 14, 1969, to August 9, 1979, as per communication Annexure P2. Since the petitioner had resigned, no further communication was deemed necessary and the matter was closed.

In so far as respondents 1 and 2 are concerned, it has been pleaded by them that the petitioner was appointed as Assistant District Attorney in June 1986, and he applied for the benefit of previous service on July 8, 1996, after a delay of nine years and one month. It has further been pleaded that the petitioner resigned from service on August 9, 1978, in order to start practice as an Advocate. His resignation was accepted and he was relieved. The service rendered by the petitioner in the office of the Accountant General (A & E), which is a Central Government office, cannot be counted in the present service. Reliance for opposing the claim of the petitioner has been placed upon Rule 4.19(a) of the Rules, which reads thus :

"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 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 case 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 of the Advisors constituted under the Haryana Civil Services (Safeguarding of National Security) Rules, 1971."

It has them been pleaded that the petitioner served as UDC in the office of the Accountant General (A & E) from June 14, 1969, to September 1977, which is under the Government of India. This period was governed by different set of Rules whereas the present service as Assistant District Attorney is governed by different set of Rules. The petitioner remained out of service from September 1977 to June 9, 1987 i.e. for a period of 8 to 10 years and, therefore, his case is not covered under Rule 4.23 of the Rules.

Mr. Hart Om Sharma, learned counsel representing the petitioner, relies upon Rule 3.17-A of the Rules to stake claim for a period spent by him in the earlier service for the purposes of computing pension. The said rule reads thus :-

"(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."

Mr. Sharma also relies upon a judgment of the Apex Court in Praduman Kumar Jain v. Union of India (1994) 4 SLR 439 : (AIR 1994 SCW 3828). Learned counsel representing the respondents, however, join issue with Mr. Sharma with regard to the applicability of the Rule referred to above as also the judgment of the Supreme Court in Praduman Kumar''s case (supra).

I have heard the learned counsel representing the parties and have gone through the records of the case. In my considered view, the petitioner is not entitled to the relief asked for in the present petition. The undisputed facts of the case, as have been mentioned above, would demonstrate that the petitioner worked as UDC in the office of the Accountant General (A & E) from June 14, 1969, to August 9, 1979. It may, however, be mentioned that the case of the respondents is that he had worked only upto August 9, 1978. He resigned from the service aforesaid on August 9, 1978, and started his practice as a lawyer. His resignation was accepted and he was relieved. He was an employee of the Central Government. After a practice of eight or nine years, he joined as Assistant District Attorney, with the Government of Haryana. In these circumstances, this Court is of the view that Rule 4.19(a) of the Rules was attracted and not the one pressed into service by the petitioner i.e. rule 3.17-A. Further, it is not a case where the petitioner might have resigned after seeking permission to join another department and may, thus, be entitled to count the earlier service for the purposes of computing pension as is admissible to an employee under Rule 4.19(b) of the Rules.

In so far as the judgment of the Apex Court in Praduman Kumar Jain''s case (AIR 1994 SCW 3828) (supra) is concerned, the same is distinguishable. In the said case, Praduman Kumar Jain joined Central Government service on March 2, 1974. He was selected for appointment as Senior Engineer in National Thermal Power Corporation, a Central Government Undertaking. He joined NTPC on October 31, 1986. No specific order confirming him in the service of the Central Government was issued. The question before the Central Administrative Tribunal, before which the matter came up in the first instance, was as to whether he was entitled to pro-rata pension for the period of his service under the Central Government or not. The Tribunal answered the question in the negative and rejected his claim on the short ground that he was not a substantive employee of the Central Government. It is against this order of the Tribunal that Praduman Kumar Jain filed an appeal in the Hon''ble Supreme Court of India. The question that came for adjudication was as to whether Praduman Kumar Jain was entitled to pro-rata in respect of the service for the period of 12 years and 8 months rendered by him under the Central Government and the same was concededly dependent upon the point whether he held the appointment in service of the IMD in a substantive capacity. The Tribunal, as referred to above, returned a finding that he had been working in an officiating capacity. This finding of the Tribunal was reversed by the Supreme Court. Further, as per office memo dated January 31, 1986, resignation from Government service with a view to secure employment in a Central Public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. Para 4 of the Office Memorandum relied upon by the Apex Court reads thus :-

"Pensionary benefits : (i) Resignation from Government service with a view to secure employment in a Central Public Enterprises with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation."

It is for the two factors referred to above i.e. permanent employment of Praduman Kumar Jain in a substantive capacity and para 4 of the Office Memorandum dated January 31, 1986, that he was held entitled to pro-rata pension and other terminal benefits in respect of the service rendered by him under the Central Government. The facts of Praduman Kumar Jain''s case (AIR 1994 SCW 3828) (supra) have no parity with the facts of the case in hand. Here the petitioner after having put in about 9 years of service voluntarily resigned and it may be noticed here not with a view to take up another Government assignment. He obviously sought no permission as none was required because he joined legal profession after resignation and it is thereafter i.e. after about 8 years that he took up an assignment with the Haryana Government when he was appointed on the post of Assistant District Attorney. This Court is of the firm view that under the Service Rules, reference whereof has been made above, he is not entitled to count his service that he rendered on the post of Upper Division Clerk with the department of the Central Government for the purposes of computing his pension.

In view of the discussion made above, this petition fails and is consequently dismissed, leaving however, the parties to bear their own costs.

Petition dismissed.