Bidhi Chand Vs. State of Punjab and ors. - Court Judgment

Excerpt:
- orderh.s. bedi, j.1. the petitioner joined the punjab police on 7th of january, 1961 in the radio telephony (rt) cadre, and was ultimately promoted as head constable on 16.4.1964. the r.t. cadre was abolished on the creation of the border security force and the petitioner and other similarly situated employees were asked to opt for service in b.s.f. as the r.t. net work had been taken over by the new organization. the petitioner, however, expressed his unwillingness to serve in the b.s.f. and was accordingly served a notice/termination order annexure p-2 dated 21st of july, 1967, informing him that on the expiry of two months his services would no longer be re- quired. the petitioner challenged this order by filing civil writ petition no. 2144 of 1967 in this court and obtained an interim order of stay therein. this petition was however dismissed vide order dated 19th april, 1968. the petitioner was thereafter reappointed as a temporary constable radio operator (trainee) in the state police vide order dated 23.10.1971 annexure p-4. the petitioner joined service on 11.1.1971 and was promoted as head constable with effect from 1.5.1973 and has ultimately retired as a sub inspector during the pendency of the present petition. before his retirement the petitioner moved several representations before the authorities that his previous service from 7th of january, 1961 upto 19th april, 1968 (as he had obtained an interim stay from this court upto that date) be counted as his qualifying service for pension. the representations filed by the petitioner were, however, rejected vide order annexure p1 dated 7th july, 1997 on the ground that the break in service under the state government could not be condoned under rule 4.23 and 5.2 of the punjab civil service rules (vol. ii) (hereinafter referred to as the rules) as he had refused to join service under the b.s.f. the order annexure p-1 has been impugned in the present petition.2. mr. toor, the learned counsel appearing for the petitioner has placed railance on rule 4.23 of the rules as amended by notification dated 26.9.1985 appended as annexure p-11 to the petition to contend that an interruption between two spells of service was to be treated as qualifying service for pension purposes except where the interruption had been caused by resignation, dismissal or removal from service or due to participation in a strike though the period of interruption itself was under no circumstances, to be reckoned as qualifying service for pension purposes.he has in this connection urged that the period of the petitioner's service under the punjab government form 7th of january, 1961 to 19th april, 1968 was to be treated as qualifying service for the purposes of pension and the petitioner was thus entitled to refixation of his pension and other retiral benefits.3. mr. anil sharma, the learned deputy advocate general, appearing for the state of punjab has, however, pointed out that the petitioner had come to this court after 26 years of his re-employment under the state government and the notification amending the rules and making the petitioner eligible for retiral benefits now claimed by him, had also been issued way back on 25.11.1985. he has also urged that the petitioner on his refusal to join service under the b.s.f. and as such he could not claim the benefit of rule 4.23. he has finally referred to note 8 to rule 4.23 to contend that the benefit of previous service could be obtained only at the time of rejoining the service and not at the time of retirement and for this additional reason the petitioner's claim- being belated, was not tenable.4. after hearing the learned counsel for the parties, i am of the opinion that this petition deserves to succeed.rule 4.23 is reproduced below:-'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.'5. it is evident from a bare perusal of annexure p-11 the notification dated 26th september, 1985 that the amended rule 4.23 (on which the petitioner relies and reproduced above) had come into force with effect from 1.1.1977. the petitioner having retired sometime in 1998 was, therefore, entitled to seek the benefit of this amendment. it is also evident that prior to amendment stringent conditions had been laid down with regard to a condonation in the break in service but the conditions have been done away with by the amendment with the result that interruption between two stretches of services under the punjab government stood automatically condoned for the purpose of qualifying service for pension except in the circumstances mentioned above.6. mr. sharma's arguments which have been noted above do not merit acceptance. it is foremost to be noted that the petitioner had got a locus standi to file the writ petition at the time of his impugned retirement and not prior thereto. further more the question of delay in matters relating to pension is irrelevant because a continuing cause of action accrues to the pensioner at the end of every month. mr. sharma's reliance on note 8 to rule 4.23 is also misplaced for the reason that it pertains to the counting of military service and not service under the state government as in the present case. note 8, therefore, has no applicability whatsoever.7. coming to the impugned order annexure p-1, it is apparent that it is based on a misconception. the reason given is that the petitioner was not entitled to the condonation in the break of service as he had himself refused to join the b.s.f. as would be evident from rule 4.23 a break in service is now deemed to be automatically condoned except in cases where the claimant has either resigned or having been dismissed or has been removed from service or was occasioned on account of participation in a strike. admittedly the petitioner's case does not fall in any of these categories.8. the petitioner's claim for condonation of break in service from 7.1.1961 right upto 19.4.1968 is, however, not entirely correct. it will be seen from the facts enumerated above that the petitioner's services had been terminated with effect from 1.10.1967 but he continued to stay in service upto 19.4.1968 on account of a stay order granted by this court in c.w.p. no. 2144 of 1967. the petitioner was dismissed on that day with the implication that the period during which the petitioner had obtained a stay would not count as qualifying service towards his pension. this petition is accordingly allowed, the order annexure p-1 is quashed and it is directed that the period of service rendered by the petitioner under the punjab government from 7.1.1961 to 1.10.1967 shall' be counted for qualifying service for the purpose of computation of pension only. the petitioner's pension will accordingly be refixed in terms of this order and the necessary payment shall be made to him within a period of six months from the date of certified copy of this order is, supplied to the department. there will be no order as to costs.

Judgment:
ORDER

H.S. Bedi, J.

1. The petitioner joined the Punjab Police on 7th of January, 1961 in the Radio Telephony (RT) cadre, and was ultimately promoted as Head Constable on 16.4.1964. The R.T. cadre was abolished on the creation of the Border Security Force and the petitioner and other similarly situated employees were asked to opt for service in B.S.F. as the R.T. net work had been taken over by the new Organization. The petitioner, however, expressed his unwillingness to serve in the B.S.F. and was accordingly served a notice/termination order Annexure P-2 dated 21st of July, 1967, informing him that on the expiry of two months his services would no longer be re- quired. The petitioner challenged this order by filing Civil Writ Petition No. 2144 of 1967 in this Court and obtained an interim order of stay therein. This petition was however dismissed vide order dated 19th April, 1968. The petitioner was thereafter reappointed as a temporary Constable Radio Operator (Trainee) in the State Police vide order dated 23.10.1971 Annexure P-4. The petitioner joined service on 11.1.1971 and was promoted as Head Constable with effect from 1.5.1973 and has ultimately retired as a Sub Inspector during the pendency of the present petition. Before his retirement the petitioner moved several representations before the authorities that his previous service from 7th of January, 1961 upto 19th April, 1968 (as he had obtained an interim stay from this Court upto that date) be counted as his qualifying service for pension. The representations filed by the petitioner were, however, rejected vide order Annexure P1 dated 7th July, 1997 on the ground that the break in service under the State Government could not be condoned under Rule 4.23 and 5.2 of the Punjab Civil Service Rules (Vol. II) (hereinafter referred to as the Rules) as he had refused to join service under the B.S.F. The order Annexure P-1 has been impugned in the present petition.

2. Mr. Toor, the learned counsel appearing for the petitioner has placed railance on Rule 4.23 of the Rules as amended by notification dated 26.9.1985 appended as Annexure P-11 to the petition to contend that an interruption between two spells of service was to be treated as qualifying service for pension purposes except where the interruption had been caused by resignation, dismissal or removal from service or due to participation in a strike though the period of interruption itself was under no circumstances, to be reckoned as qualifying service for pension purposes.He has in this connection urged that the period of the petitioner's service under the Punjab Government form 7th of January, 1961 to 19th April, 1968 was to be treated as qualifying service for the purposes of pension and the petitioner was thus entitled to refixation of his pension and other retiral benefits.

3. Mr. Anil Sharma, the learned Deputy Advocate General, appearing for the State of Punjab has, however, pointed out that the petitioner had come to this Court after 26 years of his re-employment under the State Government and the notification amending the Rules and making the petitioner eligible for retiral benefits now claimed by him, had also been issued way back on 25.11.1985. He has also urged that the petitioner on his refusal to join service under the B.S.F. and as such he could not claim the benefit of Rule 4.23. He has finally referred to Note 8 to Rule 4.23 to contend that the benefit of previous service could be obtained only at the time of rejoining the service and not at the time of retirement and for this additional reason the petitioner's claim- being belated, was not tenable.

4. After hearing the learned counsel for the parties, I am of the opinion that this petition deserves to succeed.

Rule 4.23 is reproduced below:-

'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.'

5. It is evident from a bare perusal of Annexure P-11 the notification dated 26th September, 1985 that the amended Rule 4.23 (on which the petitioner relies and reproduced above) had come into force with effect from 1.1.1977. The petitioner having retired sometime in 1998 was, therefore, entitled to seek the benefit of this amendment. It is also evident that prior to amendment stringent conditions had been laid down with regard to a condonation in the break in service but the conditions have been done away with by the amendment with the result that interruption between two stretches of services under the Punjab Government stood automatically condoned for the purpose of qualifying service for pension except in the circumstances mentioned above.

6. Mr. Sharma's arguments which have been noted above do not merit acceptance. It is foremost to be noted that the petitioner had got a locus standi to file the writ petition at the time of his impugned retirement and not prior thereto. Further more the question of delay in matters relating to pension is irrelevant because a continuing cause of action accrues to the pensioner at the end of every month. Mr. Sharma's reliance on Note 8 to Rule 4.23 is also misplaced for the reason that it pertains to the counting of military service and not service under the State Government as in the present case. Note 8, therefore, has no applicability whatsoever.

7. Coming to the impugned order Annexure P-1, it is apparent that it is based on a misconception. The reason given is that the petitioner was not entitled to the condonation in the break of service as he had himself refused to join the B.S.F. As would be evident from Rule 4.23 a break in service is now deemed to be automatically condoned except in cases where the claimant has either resigned or having been dismissed or has been removed from service or was occasioned on account of participation in a strike. Admittedly the petitioner's case does not fall in any of these categories.

8. The petitioner's claim for condonation of break in service from 7.1.1961 right upto 19.4.1968 is, however, not entirely correct. It will be seen from the facts enumerated above that the petitioner's services had been terminated with effect from 1.10.1967 but he continued to stay in service upto 19.4.1968 on account of a stay order granted by this Court in C.W.P. No. 2144 of 1967. The petitioner was dismissed on that day with the implication that the period during which the petitioner had obtained a stay would not count as qualifying service towards his pension. This petition is accordingly allowed, the order Annexure P-1 is quashed and it is directed that the period of service rendered by the petitioner under the Punjab Government from 7.1.1961 to 1.10.1967 shall' be counted for qualifying service for the purpose of computation of pension only. The petitioner's pension will accordingly be refixed in terms of this order and the necessary payment shall be made to him within a period of six months from the date of certified copy of this order is, supplied to the department. There will be no order as to costs.