Udai Bhan Yadav vs State of Haryana and Others

Daya Chaudhary, J—The present petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondents to grant retiral benefits i.e pension and gratuity etc. to the petitioner from the date, it became due on acceptance of his request for voluntarily retirement vide order dated 30.07.2009 with effect from 31.08.2009.

Petitioner was initially appointed as a Petty Officer in Indian Navy in January, 1975 and was discharged from there in January, 1990. He was appointed as a Physical Training Instructor (PTI) in the respondent- Education Department on 04.04.1998. During service, he suffered health problems and underwent angioplasty at Metro Hospital and Health Institute, Noida (U.P). He remained admitted in the hospital from 18.03.2008 to 20.08.2008. Keeping in view the difficulties in continuing with the service and convenience of family members, the petitioner sought retirement from service by writing a letter dated 07.07.2009 addressed to Principal of the School-respondent No. 3 and it was even forwarded to the District Education Officer, Kurukshetra on the same very day. The request of the petitioner was accepted w.e.f 01.09.2009 but the petitioner was not paid the retiral benefits in spite of sending various representations and reminders. Ultimately, the case of the petitioner for pensionary benefits was returned by the Office of Accountant General, Haryana to the Principal- respondent No. 3 on 19.10.2012 and the same was sent to the petitioner as well.

Learned counsel for the petitioner submits that the action of the respondents in not releasing the retiral benefits like pension and gratuity etc. to the petitioner after rendering 11 years and 05 months of service, is illegal, unjust and is liable to be set aside. It is also the argument of learned counsel for the petitioner that once the request of voluntary retirement of the petitioner has duly been accepted, the respondents cannot withheld the pensionary benefits. Learned counsel also submits that the action of the respondents is not only arbitrary and violative of Article 14 of the Constitution of India but also contrary to the provisions of Punjab Civil Service Rules, which entitles the petitioner for grant of retiral benefits. He further submits that the petitioner is entitled to retiral benefits in view of provisions contained in Rule 6.16(1) and 6.12(2) as well as Rule 6.16-A of the Punjab Civil Service Rules, Volume 2, Part-I, as applicable to Haryana.

In response to notice of motion, reply has been filed by the respondents, which is on record.

Learned counsel for the respondents submits that the petitioner sought voluntary retirement on the ground that he was not keeping good health. As per statutory provisions of Rule 5.32-B of the Punjab Civil Services Rules Vol.-II, a government employee can seek voluntary retirement at any time on or after completion of 20 years of qualifying service, whereas, the petitioner was having only 11 years and 05 months of service to his credit.

Learned counsel for the respondent-State has relied upon the judgment of Hon''ble the Apex Court in case Bank of Baroda and Others Vs. Ganpat Singh Deora, AIR 2009 SC 1745 : (2009) 120 FLR 514 : (2009) 2 LLJ 603 : (2009) 1 SCALE 168 : (2009) 3 SCC 217 : (2009) 1 SCC(L&S) 622 : (2009) 2 SLJ 162 : (2009) 3 SLR 15 , wherein, it has been held that under similar circumstances, the petitioner will not be entitled for pensionary benefits on account of having less service. Learned State counsel also submits that the amount of General Insurance Scheme has been released to the petitioner by respondent No. 3 and the same has been received by him without any objection. Petitioner has also not deposited the bonus or gratuity received in lieu of pension while discharging from Indian Navy. The claim of the petitioner is also barred by delay and laches as this petition has been filed after more than three years.

Heard the arguments of learned counsel for the parties and have also perused the documents available on the file.

Admittedly, initially the petitioner was in Indian Navy and was discharged in January, 1990. After discharge, the petitioner joined as Physical Training Instructor in the respondent-Department on 04.04.1998. The petitioner made a request for seeking retirement from service vide letter dated 07.07.2009, which was addressed to Principal of the School and it was forwarded to the District Education Officer, Kurukshetra on the same very day. The request of the petitioner was accepted w.e.f. 01.09.2009 vide letter dated 30.07.2009.

The argument of learned counsel for the petitioner is that since the request of the petitioner for voluntary retirement was accepted and he was allowed to retire voluntarily, hence, he is entitled for pensionary benefits but still, the same have not been released to him. The claim of the petitioner has been rejected on the ground that he was having less than 20 years of service to his credit and as such, he was not entitled to the pensionary benefits. The petitioner served the respondent-department only for a period of 11 years and 05 months at the time of acceptance of his request for voluntary retirement.

Learned counsel for the petitioner has also relied upon Rule 5.32-A of the Punjab Civil Services Rules, which are reproduced as under :-

"5.32-A. The rule for the grant of retiring pensions is as follows :-

(a) A Government employee is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years, but a competent authority may permit the pension to be granted in special cases where the qualifying service is not less than 25 years.

(b) xx xx xx

(c) A retiring pension is also granted to a Government employee other than a Class IV Government employee -

(I) who is retired by the appointing authority by giving him a notice of not less than three months in writing -

(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty-five years, after he has attained the age of fifty-five years; and

(ii)(a) If he is in class III service or post; or

(b) If he is in class I or Class II service or post and entered Government service after attaining the age of thirty-five years, after he has attained the age of fifty- five years:

Provided that in the case of a member of the judicial services, a retiring person shall be granted if he is required to retire at the age of fifty-eight years irrespective of age at the time of entry into Government service subject to ten years qualifying service;

(2) Who, if from category (1)(i) above retires on or after attaining the age of fifty years, or if from category (i) (ii) above retires on/or after attaining the age of fifty-five years or if from category of judicial service retires on or after attaining the age of fifty- eight years, by giving a notice of not less than three months, in writing, of his intention to retire, to the appointing authority :

Provided that where the notice is given before attaining the age of fifty years, fifty-five years in the case of Civil Services and fifty-eight years in the case of judicial services, as the case may be, it shall be given effect to from a date not earlier than the date on which the age of fifty years/fifty-five years, in the case of Civil Services and fifty-eight hears in the case of judicial services, as the case may be, is attained.

Note : Appointing authority retains an absolute right to retire any Government employee referred to have on or after he has attained the age of fifty years or fifty-five years in the case of Civil Service, or fifty-eight years in the case of judicial service, as the case may be without assigning any reason. A corresponding right is also available to such a government employee to retire on or after he has attained the age of fifty years, fifty-five years or fifty-eight years, as the case may be."

Rule 5.32-B of the Rules stipulates about the grant of pension to a Government employee on completion of 20 years of service by giving three months prior notice in writing to the appointing authority. The said rule is reproduced as under :-

"5.32-B (1) At any time a Government employee has completed twenty years'' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. However, a Government employee may make a request in writing to the appointing authority to accept notice of less than three months giving reason therefor. On receipt of a request, the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months."

In view of the aforesaid rule, a Government employee, who completes 20 years of qualifying service can seek voluntary retirement and prior to completion of qualifying service of 20 years, an employee can seek termination of the relationship by resigning from the service.

The question that whether an employee is entitled to pension on completion of 10 years of service was also raised before a Full Bench of this Court in case State of Haryana v. Dr. (Mrs.) Sudha Seth (RSA No. 13 of 2009, decided on 18.9.2009). It was held therein that Rule 6.16(2) contemplates grant of pension only after completion of 25 years of qualifying service. It was held as under :-

"We also consider it just and appropriate to deal, in the first instance, with Rule 6.16(2) of the Punjab Civil Service Rules, Volume II, Part I which is repeatedly the basis of a claim for pensionary benefits, at the hands of government employees, who having resigned from service on completion of qualifying service in excess of 10 years. Rule 6.16(2) aforementioned is being extracted hereunder :-

"6.16(2). In the case of a Government employee retiring on or after the Ist April, 1979, in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years or more, the amount of superannuation, retiring, invalid and compassionate pensions shall be 50% of the average emoluments as defined in rule 6.19C of these rules subject to a maximum of Rs. 3,000/- per mensem. However, in the case of a Government employee who at the time of retirement has rendered qualifying service of ten years or more but less than thirty-three years, the amount of pension shall be such proportion of the maximum admissible pension as such the qualifying service of thirty-three years, subject to a minimum of Rs. 375/- per mensem."

Based on the aforesaid rule, employee who have completed 10 years or more qualifying service, prior to severing their ties with their employer, by resigning from service, claim pensionary benefits.

In our considered view, the benefit of Rule 6.16(2) certainly cannot be available to an individual who had severed his relationship with his/her employer by way of resignation. The aforesaid rule is applicable only to an individual who has retired from service. The benefit of Rule 6.16(2) aforementioned can, therefore, be availed of only by a person who retires on superannuation or invalid and compassionate grounds."

The same controversy was also considered by this Court in case State of Haryana and Another Vs. Madan Pal Ahlawat, (2003) 133 PLR 346 . In the aforesaid case, the employee had completed 11 years 5 months and 15 days of service when he tendered resignation due to domestic problems. He was denied the pensionary benefits as he had not completed the qualifying service of 33 years for earning full pension under the Rules. The similar plea was raised by the State. This Court, on consideration of the mandate of Rules 4.19(a) and 6.16(2) of the Punjab Civil Services Rule Vol. II Part II (as applicable to State of Haryana) held as under :-

"4. I am of the considered opinion that the matter is squarely covered by the judgment of this court in the case of Ex. Const. Jai Singh No. 2461, R.S.A. No. 2682 of 2007, decided on 26.09.2007 (supra). There is no dispute that in the present case, the respondent had completed 11 years, 5 months and 15 days of service, when he resigned from service on 1.11.1984 due to domestic reasons. Having put in more than 10 years of service, the respondent was clearly entitled to proportionate pension as provided under rule 6.16(2). This rule provides that in the case of a government employee, who at the time of retirement has rendered qualifying service of 10 years or more, but less than 33 years, the amount of pension shall be such proportion of the maximum admissible pension as such the qualifying service of thirty-three years, subject to a minimum of Rs. 375. This being the rule, both the courts below have correctly held the respondent to be entitled to the pensionary benefits.

I am of the opinion that the reliance on rule 4.19(1) by Mr. Bhinder, appearing on behalf of the State is wholly misconceived. That rule would apply only in cases where a resignation is submitted by a government servant to avoid an order of dismissal or removal from service either under Proviso C to Article 311(2) for anti-national activities such as sabotage, espionage etc. or for misconduct. Naturally, under such circumstances, there would be forfeiture of past service and no pension would be granted. This provision cannot possibly be made applicable to a voluntary resignation from service for domestic reasons. Even in the case of resignation, the case would clearly fall under rule 6.16 (2).

In view of the above, I find no merit in the Regular Second Appeal and the same is dismissed with costs."

In Madan Pal Ahlawat''s case (supra), reliance was placed upon the judgment of this Court in the case of Haryana State through Collector Jind and another v. Ex. Const. Jai Singh No. 244, vide R.S.A. No. 2682 of 2001, decided on 26.9.2001. In that case, after considering the import of Rule 6.16(2), it was held that the plaintiff had rightly been held to be entitled to all the retiral benefits, including pension and gratuity. In that case, the Constable voluntarily resigned from service on completion of 13 years of service. The same provision was also considered by this Court in the case of Ganga Bishan vs. State of Haryana and others 1994(3) SCT 154. In that case, the petitioner had retired, after completion of 18 years, 5 months and 15 days of service. It was held that the petitioner was entitled to the grant of pension, in view of the provisions of Rule 6.16.(2). He was also held entitled to the grant of gratuity, in accordance with the provisions of the rules.

Similarly, in case of Jagdish Mitter vs State of Punjab 1998 (4) SCT 157, the Single Bench of this Court had held that a person who has put in more than 10 years of service is entitled to the pension, even though he voluntarily retires or resigns. Rule 6.16(2) was also considered by Division Bench of this Court in the case of Babu Singh vs State of Haryana and others in CWP No. 2890 of 1997. It was held in that case that a government employee becomes eligible for pension on completion of 10 years of service.

In the present case, the request of voluntary retirement was accepted even before completion of 55 years, which would show that the condition of 55 years was condoned by the respondents. As per proviso to Rule 5.32(b)(2) of the Rules, the appointing authority has discretion to relax the period of notice while accepting the application for voluntary retirement. The petitioner was having 15 years of service in the Navy but there is no prayer in the present petition for counting of earlier service and moreover, the amount of gratuity or bonus received in lieu of pension has not been deposited.

It is not a case of resignation as the petitioner had submitted an application for voluntary retirement and the same was even accepted by the authorities concerned. No objection, whatsoever, was raised by the respondents which would show that the condition of three months notice or salary in lieu thereof was condoned and the service rendered by the petitioner was also considered.

As per submissions made by learned counsel for the petitioner, the petitioner is ready to deposit the amount of gratuity or bonus received by him in lieu of his pension from the earlier service.

In view of the facts and law position as mentioned above, the present petition deserves to be allowed and the petitioner is held entitled for payment of gratuity, pension or other benefits and the same will be determined by the respondents on deposit of the amount of gratuity or bonus received in lieu of pension.

The necessary exercise be done within a period of four months from the date of receipt of certified copy of this order.