SURINDER NATH KESAR Vs. BOARD OF SCHOOL EDUCATION
LAWS(SC)-2020-1-2
SUPREME COURT OF INDIA
Decided on January 06,2020

Surinder Nath Kesar Appellant
VERSUS
BOARD OF SCHOOL EDUCATION Respondents


Referred Judgements :-

HARPHUL SINGH (SUBEDAR) VS. STATE OF HARYANA [REFERRED TO]


JUDGEMENT

ASHOK BHUSHAN, J. - (1.)This appeal has been filed against the judgment dated 21.05.2015 of High Court of Punjab & Haryana by which LPA No.1747 of 2014 filed by the appellant has been dismissed. LPA was filed by the appellant challenging the judgment of learned Single Judge dated 20.04.2013 in Civil Writ Petition No. 3037 of 2003 by which judgment learned Single Judge had dismissed the writ petition filed by the appellant praying for grant of pension by adding interruption of service between 01.02.1988 to 03.08.1994.
(2.)Brief facts of the case necessary to be noticed for deciding this appeal are:-
2.1 The appellant was initially appointed by Board of School Education, Haryana, Bhiwani (hereinafter referred to as "Board") on 08.05.1970 on the post of Proof Reader. The appellant due to his family circumstances voluntarily retired on 01.02.1988. The appellant submitted a representation to the Education Minister of Haryana. The Education Minister, Haryana vide his letter dated 27.03.1993 forwarded the application of the appellant recommending consideration of his case for re-appointment on humanitarian ground after treating the period of absence without pay even if be Rules have to be relaxed. The Board keeping into view the recommendation of the Education Minister resolved on 31.05.1994 granting sanction to reappoint the appellant afresh. It was observed that for giving the benefit of past service, the opinion of the Government be obtained. A fresh appointment order dated 25.07.1994 was issued to the appellant for appointment on the post of Proof Reader in the pay-scale of Rs.1400- 2600, in pursuance of which, the appellant joined on 03.08.1994. on 05.12.1994, Secretary of the Board wrote to the Secretary of Government of Haryana, Education Department seeking clarification on benefit of past service to the appellant. On 05.12.1994, the respondent No.4 clarified that past service of appellant could only be counted for the purpose of seniority and pension after giving the benefit of continuity in service and the period of his break be treated as leave without pay. The Board vide its resolution dated 31.05.1995 decided to condone the period from 02.02.1988 to 02.08.1994 by treating the same as leave without pay for continuity of service for the purpose of pension and seniority. The Financial Commissioner & Secretary, Haryana Government, Education Department wrote a letter dated 27.05.1997 regarding giving the benefit of past service to the appellant. The letter referred to Rule 4.23 of Punjab Civil Services Rules Volume II (hereinafter referred to as "PCSR") which states that period of interruption of one year can be condoned for giving the benefit of pension and whereas in the case of the appellant, the period of six years is condoned for the purpose of pension. Clarification was asked for in the above regard.

2.2 The Board asked the appellant on 04.02.1998 to deposit alongwith interest upto 31.03.1998 amount with regard to gratuity, provident fund, leave encashment etc. as received by him consequent to voluntary retirement. On 18.01.1999, the Director, Local Audit, Haryana wrote to the Secretary of the Board that Rule 4.22 of Punjab Civil Services Rules Volume II is not attracted and relevant rule is 4.23, which rule only authorised condonation of break of service upto one year duration. The condonation can only be made by competent authority in relaxation of provisions of Rule 4.23 of PCSR. On 15.05.2000, the appellant deposited the amount with interest upto 31.03.1998. The Director, Secondary Education vide letter dated 24.08.2000 referring to audit objections requested for obtaining relaxation in Rule 4.23 of PCSR from Finance Department through Commissioner and Secretary Haryana Govt. Education Department.

2.3 On 24.08.2001, Director, Secondary Education, Haryana wrote to the Secretary of the Board that Finance Department has declined to accept the proposal and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of PCSR. The Board asked the appellant to deposit interest upto 31.12.2001, which was deposited on 04.01.2002. The appellant retired on 31.05.2002. After retirement certain retirement benefits were paid to the appellant, which were accepted with protest. On 02.08.2002, appellant submitted a representation to Board claiming pension. On 26.11.2002, the appellant was informed that as per Finance Department and as per pension rules he has already been paid the benefits, which were due to you on account of re-employment.

2.4 In July, 2002, the appellant had received the retirement benefits including the amount, which was deposited by the appellant. Civil Writ Petition No.3037 of 2003 was filed by the appellant claiming pension and other benefits of service for the period service from 08.03.1970 to 31.01.1988 and for addition of interruption of period from 02.02.1988 to 02.08.1994 in his service. Learned Single Judge referred to Rule 4.23 of PCSR. Learned Single Judge took the view that as per Rule 4.23 if the break in service has been occasioned on account of resignation, dismissal or removal, the period of interruption of service cannot be condoned. Learned Single Judge further observed that even the order of appointment is a fresh appointment order, it is not possible to compute two different spells of service as a single service. A review petition was filed by the appellant, which too was rejected on 22.11.2013. The learned Single Judge while rejecting the review petition also observed that Clause 4.22 of rules is also not attracted. The appellant, therefore, filed a LPA before the Division Bench, which has been dismissed on 21.05.2015, against which, this appeal has been filed.

(3.)Learned counsel for the appellant in support of appeal contends that under Rule 4.23 what is not condonable is only in cases where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike. He submits that appellant having voluntary retired, which is not covered in the definition of resignation as mentioned in Rule 4.23, he is entitled for automatic condonation of interruption between 02.02.1988 till 02.08.1994. It is further submitted that the Board having passed resolution for condonation of the aforesaid period and in consequence of which the appellant has deposited the gratuity, provident fund and leave encashment amount, which was received by him at the time of voluntary retirement, the respondents could not have denied the benefit of adding the interruption period for computing the pension. Resolution was passed by the Board on 31.05.1994, which could not have been legally reviewed after five years. He submits that the appellant is entitled for the benefit of Rule
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