Back
2015 Supreme(P&H) 530
PUNJAB & HARYANA HIGH COURT
Jitendra Chauhan, J.
Radhe Shyam Garg - Appellant
Versus
State of Haryana and Ors. - Respondent
CWP-114-2013 (O&M)
Decided On : 23-03-2015
For the Appellant :Vikas Chatrath, Advocate
For the Respondents: Saurabh Mohunta, DAG
The change in management of aided posts should not affect the counting of service for pensionary benefits if the posts remain aided and pensionable.
Headnote:
Pensionary Benefits - Service Counting - Haryana Aided Schools (Special Pension & Contributory Provident Fund) Rules, 2001 - Rule 5(3)
Fact of the Case:
The petitioner seeks counting of service rendered by him in two different government-aided privately managed schools for the purposes of pensionary benefits. The respondents declined to count the service rendered by the petitioner with the first school, citing Rule 5 of Haryana Aided Schools (Special Pension & Contributory Provident Fund) Rules, 2001.
Finding of the Court:
The court found that the service rendered by the petitioner in the first school should be counted towards his pensionary benefits, despite the change in management, as the posts were aided and pensionable. The court ordered the respondents to count the service and pay any accrued arrears to the petitioner.
Issues: The main issue was whether the services rendered by the petitioner with the first school were to be counted towards calculation of his pensionary benefits.
Ratio Decidendi: The court relied on precedents and Rule 5(3) of Haryana Aided Schools (Special Pension & Contributory Provident Fund) Rules, 2001 to hold that the change in management should not affect the counting of service if the posts were aided and pensionable.
Final Decision: The court allowed the writ petition and directed the respondents to count the service rendered by the petitioner with the first school for the purpose of calculating his pension/pensionary benefits, and ordered the payment of any accrued arrears to the petitioner within four months.
The petitioner seeks counting of service rendered by him in Shri Harinam Gaurawati High School, Yamuna Nagar, respondent No. 5, w.e.f. 01.08.1977 to 04.09.1979, for the purposes of pensionary benefits.
2. The petitioner joined as Math Master, in Shri Harinam Gaurawati High School, respondent No. 5, Yamuna Nagar, on 01.08.1977 and worked as such till 04.09.1979. While serving with respondent No. 5, the petitioner applied for the Post of Math Master in Mukand Lal National Higher Secondary School, after obtaining prior permission from the Management of respondent No. 5. On the recommendations of the selection committee, the petitioner was given appointment against the sanctioned aided vacant post in the pay scale of Rs.220-400. It is worthwhile to mention here that both the schools in question are government aided privately managed and the petitioner was selected against sanctioned post in both the schools. Consequent upon his appointment with respondent No. 4, the petitioner requested for protecting his pay as he had served in the same pay scale with respondent No. 5. After protracted correspondence, vide order dated 18.09.1997, the Director of Secondary Education, Haryana, i.e. respondent No. 2, ordered for protection of pay of the petitioner. Consequently, the pay of the petitioner was re-fixed. The petitioner continued to work with respondent No. 4, till he attained the age of superannuation on 31.12.2003. However, the pension and pensionary benefits were released to the petitioner without taking into consideration the service rendered by the petitioner prior to 01.09.1981. The service rendered by the petitioner w.e.f. 01.08.1977 till 04.09.1979, was not counted on the ground that the two schools in question were managed by two different managements. Further, the service w.e.f. 05.09.1979 to 31.08.1981 was not counted on the ground that contribution towards provident fund had been deposited by the management w.e.f. 01.09.1981 only.
3. Feeling aggrieved, the petitioner approached this Court by filing CWP No. 11890 of 2010, the operative part whereof, reads as under:-
"Let the respondents count the service of the petitioner for the purpose of pension w.e.f. 5-9-1979 to 31-12-2003. The prayer of the petitioner for counting the service from 1-8-77 to 4-9-79 be considered in terms of definition of qualifying service as given in Rule 5 of Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001. The petitioner may make a representation in this regard to the respondents to show that he is fully eligible to count this service for the purpose of counting this service for pension as well.
As per the case set up by the petitioner, he has already deposited share of Contributory Provident Fund for the period as well. The respondent- Government would pass an appropriate order taking into account the rule position and if this service is required to be counted, the same will be done accordingly. In case, the same is declined in any manner, the petitioner may have his remedy in accordance with law."
4. In pursuance of the above order, the petitioner made a representation on 26.07.2011, whereupon, the respondents, vide order dated 14.12.2011, allowed counting of service w.e.f. 05.09.1979 rendered by the petitioner with respondent No. 5, for the purposes of pensionary benefits, whereas, the request for counting the services rendered by him with respondent No. 5, w.e.f. 01.08.1977 to 04.09.1979, was declined, by placing reliance on Rule 5 of Chapter-III of Haryana Aided Schools (Special Pension & Contributory Provident Fund) Rules, 2001.
5. Aggrieved against the same, the petitioner has preferred the present writ petition, wherein, the only question for determination before this Court is whether the services rendered by the petitioner with respondent No. 5, w.e.f. 01.08.1977 to 04.09.1979, are to be counted towards calculation of his pensionary benefits.
6. It is an admitted case of the parties that serv
