dr._krishan_chand_saini
TRANSCRIPT
IN THE HIGH COURT FOR THE STATE OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P.No. OF 2010
DR. Krishan Chand Saini, resident of House No. 47, Preet
Nagar, Behind Saket Hospital, Ambala Cantt.
Petitioner
Versus
1. The State of Haryana through the Financial
Commissioner cum Principal Secretary to Government
of Haryana, Education Department, Haryana Civil
Secretariat, Chandigarh.
2. The Director of Secondary Education Haryana, 30 Bays
Building, Sector 17, Chandigarh.
3. D.A.V. Senior Secondary School Ambala Cantt, through
its Principal.
4. M.R.S.D. Senior Secondary School Shahzadpur, Tehsil
Naraingarh District Ambala through its Head Master. .
Respondents.
Civil writ Petition under Articles
226/227 of the Constitution of India
for issuance of writ in the nature of
Certiorari for quashing the
impugned order dated 24.4.2009
(Annexure P-9) whereby the
respondent No.2 declined the
request of the petitioner to count
his service, which he rendered in
Government aided school, for the
purpose of pension and other
benefits further a writ in the nature
of Mandamus directing the
Respondents to count the previous
service rendered by petitioner in
Govt. aided school for the purpose
of pension and other benefits with
all other consequential benefits.
And
issue any other writ, order or
direction which this Hon’ble Court
may deem fit in the peculiar facts
and circumstances of the case.
RESPECTFULLY SHOWETH:-
1. That the petitioner is resident of State of Haryana and
thus being citizen of India is entitled to invoke the extra
ordinary writ jurisdiction of this Hon’ble Court by way of
present writ petition under Article 226/227 of the
constitution of India.
2. That the brief facts which giving rise to the present writ
petition are that the petitioner had joined the services
earlier in Haryana Government aided school and thereafter,
he was appointed in Haryana Government School and during
his service in aided schools 75% salary was being paid to
him out of the grant paid by Government of Haryana from
the Haryana Government funds and rest of the amount was
paid to him by the management.
3. That date of joining and relieving of the petitioner
against aided sanctioned posts in Haryana government
aided and Recognized school, situated in the State of
Haryana, and date of his joining in Haryana
Government school along with post and designation is
given below :-
i) The petitioner joined as S.S Master in D.A.V. Senior
Secondary School Ambala Cantt on 6.7.1984 and
relieved from the above said school on 20.4.1993.
The appointment letter issued to the petitioner is
attached here with as Annexure P-1 with the writ
petition.
ii) The petitioner joined as Head Master in M.R.S.D.
Senior Secondary School Shahzadpur, Tehsil
Naraingarh District Ambala on 20.4.1993 to
15.9.1997. The appointment letter issued to the
petitioner is attached here with as Annexure P-2
with the writ petition.
It is relevant to mention here that petitioner while
working as S.S. Master in the D.A.V school Ambala Cantt
relived on 19.4.1993 and joined as Head Master in M.R.S.D.
School and in this way petitioner has rendered total period of
13 years and 2 months and 10 days service without any
break in government aided school.
4. That thereafter, the Petitioner was appointed as Head
Master in Government High School, Holi, Tehsil and District
Ambala on 16.9.1997 and remained there upto 8.8.2004
and thereafter, he was transferred to Government Girls High
School Mullana and joined on 9.8.2004 and remained there
upto 23.1.2006. The appointment letter issued by the
respondent is attached here with as Annexure P-3.
5. That the petitioner was promoted to the post of
principal vide letter dated 19.1.2006 and joined as principal
on 23.1.2006 in Government Senior Secondary School
Mullana and worked there upto 29.9.2007 and again he was
transferred in Government Senior Secondary School Saha
and the petitioner was retired from the above said school on
30.11.2008. The letter dated 19.1.2006 is attached here with
as Annexure P-4 with the writ petition
6. That it is worth while to mention here that the E.P.F. of
petitioner lying with the Government Aided schools have
also been transferred to the G.P.F account of the petitioner
i.e. account number HR/Edu/144495 vide draft no.351228
dated 1.5.02 to AG Haryana at Chandigarh. The petitioner
has not withdrawn any gratuity or other pensionary benefits
for the period of service rendered in above said Government
aided schools.
7. That even in Haryana Government aided schools the
scheme of Pension has been introduced and now the
teachers / masters/lecturers retiring from private schools
aided by Government of Haryana are getting pension and
therefore, the service rendered by the petitioner in
government aided school should be counted towards
qualifying service.
8. That the petitioner applied through proper channel for
the post of Head master in the Haryana Education
Department and on 16.9.97 and the petitioner was selected
and appointed as Head Master in the Haryana Government
Education Department.
9. That the petitioner, before joining his services as Head
Master with the Respondent No. 1 and 2 was working with
the respondent No.3 & 4 school and respondent No.3 and 4
are the school which are taking 75% aid from the
Government of Haryana and in this way it is clear that the
petitioner was working on the post of teacher, which were
funded by the Government of Haryana is very much
emendable to the writ jurisdiction of this Hon’ble Court and
so far as relief claimed by the petitioner is concerned, i.e.
from Respondent No.2 as the petitioner, who was working
with Respondent NO.3 and 4 Schools, when appointed in the
Government School on the post of Head Master was entitled
for the benefit of counting of his service rendered in
respondent No. 3 and 4 Schools, for the purpose of
pensionary benefits and for making the record of the same in
his service book. To that effect, the petitioner moved a
representation to the Director of Secondary Education
Haryana. A copy of the representation dated 24.9.2002 is
attached herewith as Annexure P-5 for the kind perusal of
this Hon’ble Court.
10. That thereafter also the petitioner has made number of
representation but to no avail and thereafter the petitioner
served upon the respondents a legal notice dated 25.8.2008
and requested the respondent No.1 and 2 to count his period
of service which he rendered in Government aided school.
Copy of the legal notice dated 25.8.2008 is appended
herewith as Annexure P-6 for the kind perusal of this
Hon’ble Court. But nothing was done by the Respondents.
Finally, aggrieved by the inaction on the part of the
Respondents, the petitioner filed writ petition before this
Hon’ble Court vide CWP No. 20062 of 2008, which came up
for hearing before this Hon’ble High Court on 27.11.2008
and the same was disposed of by the Hon’ble Division Bench
of this Hon’ble Court with the directions to the Respondents
No.2 to decide the legal notice dated 25.8.08 by passing a
speaking order within a period of 2 months from the date of
receipt of certified dopy of the order. The true typed copy of
the order passed by the Division Bench of this Hon’ble Court
is attached here with as Annexure P-7.
11. That the respondent remained failed to comply with the
direction contained in the order passed by the Hon’ble
Division Bench of this Hon’ble Court and ultimately forced
the petitioner to file contempt petition before this Hon’ble
Court and during the pendency of the contempt petition the
respondents rejected the claim of the petitioner by saying
that as per rules 3.16 of Civil Services, rules, Volume , the
petitioner is not entitled for the period of service rendered in
above said school to be added in the service book so as to
count that period for the purpose of retrial and pensionary
benefits with all other consequential benefits. A copy of the
rejection order dated 24.4.2009 is attached here with as
Annexure P-8 for the kind perusal of this Hon’ble Court.
12. That the action of the Respondents (Annexure P-8)
rejecting the claim of the petitioner on the flimsy grounds is
absolutely illegal, arbitrary, unconstitutional and violative of
Articles 14 and 16 of the Constitution of India, inter alia on
the following grounds:-
(i) That the claim of the petitioner has been
rejected by saying that there is a clear cut
provision in Rules 3.16 of Civil Services
Rules, Volume II and further saying that the
petitioner is not entitled for pensionary
benefits for service rendered in different
aided school, whereas the petitioner fulfills all
the above mentioned conditions. The
relevant Rule including 3.16 of CSR is
reproduced asunder :-
“3.12 The service of Government
employee does not qualify for pension
unless it confirms to the following three
conditions:-
First:- The service must be under
Government.
Second:- The Employment must be
substantive and permanent;
Third:- Service must be paid by
Government.
These three conditions are fully
explained in the following rules:-
3.16(a) The service of a Government
Employee does not quality unless
he is appointed and his duties and
pay a regulated by the Government
or under conditions determined by
the Government.
(b) Past service rendered in a part B
State (excluding Surashtra but
including an Indian State which
subsequently became a part B
State) shall be treated as
equivalent to Government Service
for the purpose of pension and shall
count for pension on permanent
absorption in the Punjab
Government Service in the same
manner as such service tendered
informer Part ‘A’ State counts.
3.17. In case of an officer retiring on or
after 5th January, 1961, if he was
holding substantively a permanent
post on the date of his retirement,
his temporary or officiating service
under the State Government
followed without interruption by
confirmation in the same or another
post shall count in full as qualifying
service except in respect of :-
(i) Period of temporary or
officiating service in non
pensionable establishment;
(ii) Period of service paid from
contingencies.”
In fact, the petitioner was appointed in two
aided School which is a Government aided
school, against the grant-in-aid post. Further,
it is important to mention here that the
petitioner came in the Education Department
of Government of Haryana after applying for
the same through proper channel. Since the
intuition is aided by the Government, so it
has to be considered as Government of
Haryana Institution. Moreover, the petitioner
has completed his probation period and he
was working against a permanent post. So,
he was holding the post substantively and
since the grand-in-aid was given for the post,
the petitioner was working against, so the
conditions of Rule 3.12 are fulfilled. Further, it
is relevant to mention here that the Rule 3.16
of Civil Services Rules, Volume II which
excludes employees of the Municipality and
grant-in-aid schools in not at all applicable in
the case after the implementation of the
Pension Scheme in the Municipal/Corporation,
their entire length of service is to be counted
as qualifying service for pension. Similarly, in
the case of aided schools also, Pension
scheme has been introduced by the Haryana
Government and their entire length of
Service is also countable for pension.
(ii) That in the case of employees of the
Municipal Committees/ Councils “ The
Haryana Municipal Employees Pension and
General Provident Fund Rules, 1993 ‘ Were
made applicable w.e.f. April, 1992 and all the
employees of the Municipal Committees were
entitled to the entire length of service benefit
as qualifying service and are getting pension.
Similarly, in the case of Aided Schools too ‘
Haryana Aided Schools ( Special Pension and
Contributory Provident Fund Rules, 2001’
have been made applicable and in this case
too all Pension Schemes applicable to
Haryana Government Employees have been
made applicable for aided schools teachers.
Further, ‘aided sanctioned post’ has been
defined as under:-
“Definition:-
“ Aided sanctioned post” means the post for
which grant in
aid is allowed by the Education Department,
Haryana.
Qualifying Service.
The service of an employee shall qualify for
retirement benefit under these rules:
i) “ The service rendered on attaining
the age of 18 years on AIDED
SANCTIONED POST.
ii) The service rendered till the
attainment of the age of sixty
years in the case of others, service
rendered till the attainment of the
age of fifty eight years. However,
the qualifying service shall be
taken into account with effect from
the date an employee subscribed
contribution towards Contributory
Provident Fund”.
It is important to mention here that if the
petitioner would have been working in the
aided school during his entire service, the
services would have been counted as
qualifying service for pension which is at par
with the Government service. Since the
petitioner was working against the grant-in-
aid sanctioned post, he is entitled for all
pensionary benefits and all other
consequential benefits. The petitioner was
also contributing his part of Contributory
Provident Fund in the previous intuition also
and the same was later on transfer to the
GPF account of the petitioner with the
respondent no.1 and 2.
(iii) That it is relevant to mention here that in the
case of Municipal Committee/Aided Schools,
their entire length of Service has been
counted as qualifying service and they are
getting pensionary benefits accordingly. It is
further submitted that even in the case of
taken over schools, the employees get
benefit of their entire length of service
towards qualifying service. It is also relevant
to submit that Government of Haryana has
also issued instructions vide their letter No.
½(4096-2F1-II dated 7.1.2002) by which the
service under the Autonomous Bodies and
vice versa are countable towards qualifying
service.
(iv) That such issue has been considered by the
Hon’ble Court in several judgments as under:-
i) In the case of ‘ Sukhdev Singh Vs. State
of Punjab 2005(30 RSDJ 111:
“ Counting of past service.
Held: That the letters of
resignation acceptance thereof and the act of
the petitioners joining the respondent
department without any such objection being
raised by the respondent department, clearly
implies that the petitioners were relieved
from the Beas Board, so as to enable them to
forthwith join the respondent department- In
case there is any ambiguity in the orders
accepting the resignation, that could not be
blamed to deny the petitioners the benefit of
the past service on such a trivial ground,
indicative of a complete non-application of
mind.
Petitioner are held entitled to the benefit of
past service rendered by them in the Beas
School.”
In the case of ‘Balwant Singh Versus State of
Haryana and other CWP No. 16337 of 1997
decided on 30.11.1999, this Hon’ble Court
held as under:-
“Punjab Civil Services Rules Volume II, Rule
3.17-A read with Rule 4.19 (a) Pensionary
benefits – Service rendered in Zila Parishad
before absorption in Government Service-
The length of service of the petitioner 13
years- Respondent directed to determine the
pension payable to the petitioner in
accordance with rules- The petitioner bound
to return the contributory provident if any:
Rule 3.17 (d) CSR Vol. II.
“ Resignation from the public service or
dismissal or removal from it for misconduct,
insolvency, inefficiency not due to age, or
failure to pass prescribed will entail forfeiture
of past service in terms of rule 4.19 (a) of
Punjab Civil Service Rules Volume II.”
In another CWP NO. 3297 of 2002 decided on
20.2.2003 in the case of Union of India and
others Vs. Jawahar lal Sharma wholly in the
similar circumstances, a Division Bench of
Hon’ble Rajasthan High Court has held as
under:-
“Pensionary Benefits-
Counting of past service-
Previous services rendered in Government
aided Institution receiving more than 50%
grant-in-aid shall be counted in future
government employment”
v) That the work and conduct of the petitioner
has throughout been good and there is
nothing adverse pending against him. The
petitioner was ordered to be relieved on
15.9.1997 from the school of the respondent
No.4 and joint at Government High School,
Holi on 16.9.1997. Here it is also important to
mention here that the petitioner, who applied
through proper channel joined without any
break within the period of joining time within
the Education Department of the Government
of Haryana, so it cannot be taken as break in
service and once there is no break in service
between the previous institution and the 2nd
institution, the period has to be counted for
the purpose of pensionary benefits and other
consequential benefits.
vi) That the Respondent have rejected the claim
of the petitioner absolutely on the flimsy
grounds which deserves to be quashed on
the grounds mentioned above.
13. That the main questions of law involved in the present
writ petition for the kind consideration of this Hon’ble Court
are as under:-
(i) Whether grave and manifest injustice has
been caused to the petitioner?
(ii) Whether the action of the Respondents is
violative of the provisions of Articles 14 and
16 of the Constitution of India?
(iii) Whether the petitioner is entitled to the
benefit of qualifying service which he
rendered in aided grant-in-aid school on the
sanctioned grant-in-aid post on regular basis
and was relieved to join Education
Department of the Government of Haryana?
(iv) Whether the petitioner is entitled for the
counting of his service for pensionary
benefits and adding the service of the
petitioner in his service record.
(v) Whether the action of the respondents in
rejecting the claim of the petitioner is illegal,
unjust, unfair, unconstitutional and against
the settled law?
14. That the petitioner has not filed any such or similar
petition before this Hon’ble Court or Before Hon’ble Supreme
Court of India except Civil Writ Petition NO. 20062 of 2008
titled as Dr. Krishan Chand Saini Versus State of Haryana
decided on 27.11.2008 with a direction to the respondents to
decide the legal notice within a period of 2 months.
15. That the petitioner has no other efficacious remedy of
appeal and revision except to approach this Hon’ble Court
under Article 226 and 227 of the Constitution of India.
In view of submissions made above, it is most
respectfully prayed that this Hon’ble Court may be pleased
to issue:-
i) Writ in the nature of Certiorari for
quashing the impugned order
dated 24.4.2009 (Annexure P-9)
whereby the respondent No.2
declined the request of the
petitioner to count his service,
which he rendered in Government
aided school, for the purpose of
pension and other benefits;
ii) Issue a writ in the nature of
Mandamus directing the
Respondents to count the previous
service rendered by petitioner in
Govt. aided school for the purpose
of pension and other benefits with
all other consequential benefits;
iii) to issue any other appropriate Writ,
order or direction which may be
deemed fit and proper under the
facts and circumstances of the
present case.
iv) to dispense with the service of
advance notice upon the
respondents;
v) to accept the present writ petition
with costs in favour of the
petitioner and against the
respondents;
vi) to dispense with the filing of the
certified copies of the Annexures;
vii) Cost of litigation be awarded to the
petitioner.
CHANDIGARH: (PETITIONER)
DATED:
THROUGH:
(DEEPAK SHARMA & SUKHWINDER SINGH)
ADVOCATE
COUNSEL FOR THE PETITIONER
VERIFICATION:
Verified that the contents of para no. 1 to 12 and 14
and 15 are true and correct to my knowledge and that of
para no. 13 are believed to be true and correct being legal
advice sought from the counsel. No part of it is incorrect or
false and nothing material fact has been kept concealed
therefrom.
CHANDIGARH: PETITIONER
DATED:
IN THE HIGH COURT FOR THE STATE OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P. NO. …………. OF 2010
DR. Krishan Chand Saini, resident of House No. 47, Preet
Nagar, Behind Saket Hospital, Ambala Cantt.
Petitioner
Versus
State of Haryana and ors
Respondents
Affidavit of DR. Krishan Chand
Saini, resident of House No. 47,
Preet Nagar, Behind Saket Hospital,
Ambala Cantt.
I the above named deponent do hereby solemnly affirm and
declare as under:-
1. That the deponent is filling the above titled writ petition
before this Hon’ble Court and which is likely to be succeed
on the grounds taken therein.
2. That the contents of the writ petition from para No. 1 to
12 and 14 & and 15 are true and correct to my knowledge
and belief and Para No. 13 is taken on the advice of the
Counsel which is believed to be correct. No Part of it is false
and nothing has been kept concealed therein.
3. That the petitioner has not filed any such or similar
petition before this Hon’ble Court or Before Hon’ble Supreme
Court of India except Civil Writ Petition NO. 20062 of 2008
titled as Dr. Krishan Chand Saini Versus State of Haryana
decided on 27.11.2008 with a direction to the respondents to
decide the legal notice within a period of 2 months.
CHANDIGARH DEPONENT
DATED
Verification
It is verified that the contents of my above said affidavit
are true and correct to my knowledge and belief. No part of
it is false and nothing has been kept concealed therein.
CHANDIGARH DEPONENT
DATED