Supreme Court of India
SURINDER NATH KESARversusBOARD OF SCHOOL EDUCATION & ORS.
- Citation
- 2020 INSC 2
- Decided
- 6 January 2020
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
Rule 4.23 does not allow condonation of an interruption exceeding one year, and because the Government refused to relax the rule, the appellant was not entitled to pension.
Summary
The appellant, a proof‑reader appointed in 1970, voluntarily retired in February 1988 and was re‑appointed in August 1994. He sought to have the six‑year gap treated as leave without pay so that his entire service could be counted for pension. The Board of School Education resolved to condone the gap, but the applicable Punjab Civil Services Rules (Rule 4.23) allow condonation only for interruptions not exceeding one year and require government relaxation for longer periods. The Finance Department refused to relax Rule 4.23, and the Court held that without such relaxation the Board could not add the interruption for pension purposes. Moreover, the appellant’s post‑reappointment service was less than the ten‑year qualifying period, rendering him ineligible for pension. The appeal was therefore dismissed.
Issues considered
- Whether Rule 4.23 of the Punjab Civil Services Rules permits condonation of an interruption of service exceeding one year for pension purposes
- Whether voluntary retirement qualifies as an interruption covered by Rule 4.23
- Whether the Board's resolution to treat the six‑year interruption as leave without pay is valid without relaxation of Rule 4.23
- Whether the Government's refusal to relax Rule 4.23 precludes granting pension benefits
- Whether the appellant is entitled to pension given less than ten years of continuous service after re‑appointment
Subjects
pensionservice condonationRule 4.23voluntary retirementcontinuity of servicesenioritycivil service rulespension eligibility
Judgment
[2020] 1 S.C.R. 329 329
SURINDER NATH KESAR A
v.
BOARD OF SCHOOL EDUCATION & ORS.
(Civil Appeal No. 9682 of 2019)
JANUARY 06, 2020 B
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Service Law:
Pension – Claim for – Voluntary retirement taken on 2.2.1988
– Fresh appointment on 3.8.1994 on the recommendation of C
Education Minister – The Board of School Education decided to
condone the period from 2.2.1988 to 2.8.1994 by treating the same
as leave without pay for continuity of service for the purpose of
pension and seniority – There were Audit objections stating that
the relevant rule 4.23 of Punjab Civil Services Rules, Vol. III, only
D
authorised condonation of break of service upto one year duration
and that period from 2.2.1988 to 2.8.1994 could be condoned only
by relaxing r. 4.23 – Board’s request for relaxation in r. 4.23 was
declined – On retirement, retiral benefits of only re-employment
given – Writ petition claiming pension and other retiral benefits
for the entire service period by adding interruption period in his E
service – Writ petition was dismissed – Review as well as Letters
Patent appeal against the order of Single Judge dismissed – Appeal
to Supreme Court – Held: When the statute does not permit
condonation of interruption of period from 2.2.1988 to 2.8.1994
and relaxation of the relevant rule i.e. r. 4.23 had been refused, no
F
fault can be found in the decision of respondent refusing to grant
the benefit of condonation by adding the earlier period of service
– Appellant’s period of service after fresh appointment being less
than qualifying service of 10 years, he was not entitled to pension
– Punjab Civil Services Rules, Volume II – r. 4.23.
Dismissing the appeal, the Court G
HELD : 1. Rule 4.23 does not permit condonation of
interruption of more than one year’s duration, hence the case of
the appellant was not covered under Rule 4.23 of Punjab Civil
H
329
330 SUPREME COURT REPORTS [2020] 1 S.C.R.
A Services Rules, volume II. It was due to this reason that a letter
was written by the Government for obtaining relaxation under
Rule 4.23. The relaxation from Rule 4.23 as claimed by the
appellant was not acceded to by the Government, which was
communicated by letter dated 24.08.2001 of Director, Secondary
Education Haryana, Chandigarh. Therefore, the case of the
B
appellant was not covered by Rule 4.23 and further the request
for granting relaxation by the Government from Rule 4.23 was
not acceded to. When the State has refused to grant relaxation
in the rule, the refusal by the respondent for adding the period
of interruption for pensionary benefit cannot be faulted. [Paras
C 10-12] [338-A-D; 339-B]
2. Letter dated 05.12.1994, which was also a letter from
Financial Commissioner & Secretary was based on Rule 4.22,
which mentioned that period of break in service of the appellant
be condoned which can only be treated as leave without pay, which
D can only be counted for seniority and pension. The said letter
cannot come to the rescue of the appellant since it did not refer
to Rule 4.23, which was relevant and Rule 4.22, which referred
to interruption in period of absence and the period from
02.02.1988 to 02.08.1994 was not period of absence but was a
period when the appellant had already taken voluntary retirement.
E [Para 13] [339-F-G]
3. At no stage, the Government had condoned the
interruption between 02.02.1988 to 02.08.1994. When the Statute
does not permit condonation of interruption of period from
02.02.1988 to 02.08.1994 and the proposal for granting relaxation
F in Rule 4.23 had been refused, no fault can be found in the decision
of the respondent refusing to grant the benefit of condonation by
adding the earlier period. The appellant’s period after fresh
appointment from 03.08.1994 being less than qualifying service
of 10 years, he was not entitled for pension. [Para 14 and 15]
G [340-B, D]
Subedar Harpal Singh, Retd. v. State of Haryana and
Another (1994) 1 SLR 436 – referred to.
Case Law Reference
(1994) 1 SLR 436 referred to Para 9
H
SURINDER NATH KESAR v. BOARD OF SCHOOL 331
EDUCATION & ORS.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9682 A
of 2019.
From the Judgment and Order dated 21.05.2015 of the High Court
of Punjab and Haryana at Chandigarh in Letters Patent Appeal No.
1747 of 2014 (O&M).
Vijay Kumar, Thomas Oummen, B.D Pandey, Aniruddha P. B
Mayee, Advs. for the Appellant.
Arun Bhardwaj, AAG (Haryana), Ashish Pandey, Abhinav
Kaushik, Vishwa Pal Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by C
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 D
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 E
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 F
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 G
treating the period of absence without pay even if the
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 H
332 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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,
B
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
C 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
D
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
E 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
F
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
G 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.
H
SURINDER NATH KESAR v. BOARD OF SCHOOL 333
EDUCATION & ORS. [ASHOK BHUSHAN, J.]
The condonation can only be made by competent A
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
B
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 C
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 D
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 E
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 F
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
G
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
H
334 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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
B
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.
C 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
D
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
E 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
4.23 of PCSR.
F 4. Learned counsel for the State refuting the submission of the
appellant contends that Rule 4.23 as relied by the appellant is not the
relevant rule, which is applicable in the State of Haryana. Referring to
the counter affidavit, learned counsel submits that in the counter affidavit,
Annexure R-1, the relevant clause, i.e. Rule 4.19, 4.20, 4.21, 4.22 and
4.23 as applicable in the State of Haryana has been filed. He submits
G that Rule 4.23 sub-rule (3) provides that interruption should not be of
more than one year’s duration and in the present case, interruption being
of more than six years, Rule 4.23 does not help the appellant. He further
submits that appellant having accepted voluntary retirement on 01.02.1988
and having joined again on 03.08.1994 as a fresh appointment, the earlier
H period cannot be added for the purpose of pension.
SURINDER NATH KESAR v. BOARD OF SCHOOL 335
EDUCATION & ORS. [ASHOK BHUSHAN, J.]
5. This Court by order dated 09.12.2019 noticed the difference in A
Rules 4.22 and 4.23 of PCSR Volume II as claimed by both the parties.
This Court directed the learned standing counsel to produce the copy of
the gazette containing the relevant rules which were in existence at the
relevant time. During the course of submissions, learned counsel for the
State has produced before us Punjab Civil Services Rules Volume II as
B
applicable in the State of Haryana. The book also contains the
amendments, which were issued in the Rules by the Finance Department,
Haryana between 01.01.1969 to 29.02.1992. The provisions of Rules
4.22 and 4.23 are same as have been filed as Annexure R-1 in the
counter affidavit of the respondents. It appears that both learned Single
Judge and Division Bench has referred to Rules 4.22 and 4.23 of Punjab C
Civil Services Rules Volume II, which were not the rules applicable in
the State of Haryana.
6. We have no reason to doubt the authenticity of the book, which
has been produced by the learned counsel for the State of Haryana,
which contains the provisions of Rules 4.22 and 4.23 as applicable in the D
State of Haryana as Annexure R-1. We may also notice the Rules 4.22
and 4.23 of Punjab Civil Services Rules Volume II as has been noticed
by the Division Bench, which is to the following effect:-
“4.22. – The authority which sanctions the pension may commute
retrospectively periods of absence without leave into leave without E
allowances or extraordinary leave.
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 F
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.”
G
7. A perusal of the material on record including the letter dated
27.05.1997 written by Financial Commissioner & Secretary, Haryana
Government, Education Department, Chandigarh (Annexure P-9) indicate
that the reference has been made to Rule 4.23 providing that maximum
period of interruption of one year can be condoned. To the same effect
H
336 SUPREME COURT REPORTS [2020] 1 S.C.R.
A is letter dated 18.01.1999 written by the Director, Local Audit, Haryana,
Chandigarh (Annexure P-11), paragraph 2 of which is as follows:-
“2. The period between the date of voluntary retirement, i.e.,
1.2.88 to the date of fresh reappointment of the incumbent on the
same post in the Board i.e. 3.8.94, cannot be treated as period of
B absence without leave and as such rule 4.22 of CSR Vol. II is not
attracted in the case. The period rather denotes the break/
interruption in service is rule 4.23 of CSR Vol. II. Even this rule
authorise condonation of Break/Interruption upto one year duration
in the normal course and in the instant case, the period of break in
service being six years, six months and one day. The condonation
C can only be made by the competent authority in relaxation of
provisions of rule 4.23 of Punjab CSR Vol. II. Hence you are
advised to act accordingly.”
8. From the above it is clear that Rule 4.23 which is applicable to
the State of Haryana is one which has been brought on the record as
D Annexure R-1 in the counter affidavit. Rules 4.22 and 4.23 are quoted
below:-
“4.22 The authority which sanctions the pension may commute
retrospectively periods of absence without leave into leave without
allowances or extraordinary leave.
E
4.23 Interruption in service either between two spells of permanent,
or temporary service or between a spell of temporary service and
permanent service or vice versa in the case of an officer retiring
on or after the 5th January, 1961, may be condoned, subject to the
following conditions, namely:-
F
(1) The interruption should have been caused by reasons beyond
the control of Government employee concerned.
(2) Service preceding the interruption should not be less than
five years’ duration. In cases where there are two or more
interruptions, the total service, pensionary benefits in respect
G
of which shall be lost if the interruptions are not condoned
should not be less than five years.
(3) The interruption should not be of more than one year’s
duration. In cases where there are two or more interruptions,
H
SURINDER NATH KESAR v. BOARD OF SCHOOL 337
EDUCATION & ORS. [ASHOK BHUSHAN, J.]
the total period of all interruptions to be condoned should A
not exceed one year.”
9. We may refer to a judgment of Punjab & Haryana High Court
in which it had occasion to consider Rule 4.23 of PCS Rules as applicable
in Haryana, i.e., in Subedar Harpal Singh, Retd. Vs. State of Haryana
and Another, (1994) 1 SLR 436. In the above case, Rule 4.23 of B
PCSR as appliable in case of an employee in Haryana is quoted in
paragraph 3 of the judgment. In the above case also, the petitioner’s
case was held not covered by Rule 4.23. paragraph 3 of the judgment is
as follows:-
“3. Admittedly, the case of the petitioner does not fall in any of C
the exception, Rule 4.23, however, deals with condonation of
interruption in service and reads thus:-
“Interruption in service (either between two spells of permanent,
or temporary service or between a spell of temporary service and
permanent service or vice versa in the case of an officer retiring D
on or after the 5th January, 1961, may be condoned, subject to the
following conditions, namely:-
(1) The interruption should have been caused by reasons
beyond the control of Government employee concerned.
(2) Service preceding the interruption should not be less than E
five years’ duration. In cases where there are two or more
interruptions, the total service, pensionary benefits in
respect of which shall be lost if the interruptions are not
condoned should not be less than five years.
(3) The interruption should not be of more than one year’s F
duration. In cases where there are two or more
interruptions, the total period of all interruptions to be
condoned should not exceed one year.”
As the service of the petitioner preceding the interruption was
less than five years, the break cannot be condoned in terms of G
this rule. No other provision was brought to my notice on the
basis of which the break can be condoned so as to entitle the
petitioner to claim pension after counting his previous service in
the Industries Department.”
H
338 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 10. Rule 4.23 does not permit condonation of interruption of more
than one year’s duration, hence the case of the appellant was not covered
under Rule 4.23. It was due to this reason that a letter was written by
the Government for obtaining relaxation under Rule 4.23. In letter dated
24.08.2000 of Director, Secondary Education Haryana, Chandigarh
(Annexure P-15) it was provided that relaxation be obtained in Rule
B
4.23 of Punjab Civil Services Rules Volume II from Finance Department
through Commissioner and Secretary, Haryana Govt. Education
Department. In letter dated 24.08.2000, following was stated:-
“As such in view of the audit objection you are requested to kindly
obtained relaxation in Rule 4.23 of Punjab CSR Vol. II from
C Finance Department through Commissioner and Secretary
Haryana Govt. Education Department and the same may be sent
to this office.”
11. The relaxation from Rule 4.23 as claimed by the appellant
was not acceded to by the Government, which was communicated by
D letter dated 24.08.2001 of Director, Secondary Education Haryana,
Chandigarh. It is useful to extract the said letter, which has been brought
on record as Annexure P-16, which is to the following effect:-
“From
Director,
E
Secondary Education Haryana,
Chandigarh.
To,
Secretary,
F Board of School Education Haryana,
Bhiwani.
Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001
Subject : Regarding granting of benefit of past service to Sh.
Surinder Nath Kesar, Proof Reader.
G With reference to your letter No.334-35 dt. 31.07.2001 on the
subject noted above.
In this matter the Finance Department has declined to accept
the proposal of this Department and has suggested that the pay of
the employee be fixed under Foot Note 6 of Rule 7.18 of CSR
H Vol. II.
SURINDER NATH KESAR v. BOARD OF SCHOOL 339
EDUCATION & ORS. [ASHOK BHUSHAN, J.]
Sd/- A
Assistant Director Schools-1
for Director Secondary Education Haryana,
Chandigarh.”
12. From the above, it is clear that the case of the appellant was
not covered by Rule 4.23 and further the request for granting relaxation B
by the Government from Rule 4.23 was not acceded to. When the State
has refused to grant relaxation in the rule, the refusal by the respondent
for adding the period of interruption for pensionary benefit cannot be
faulted.
13. Insofar as the submission of the learned counsel for the C
appellant that Board has resolved to condone the interruption and it was
only after five years, the claim is denied by the Government, it is relevant
to notice that in the resolution of the Board dated 31.05.1994, it was
provided that regarding giving benefit of the past service, the opinion of
the State Government be obtained. Further, although the Board passed
resolution on 31.03.1995 to add the period subject to appellant depositing D
the provident fund, gratuity and leave encashment, the amount sought to
be deposited in pursuance of the resolution of the Board was not accepted
due to certain audit objection and when the appellant deposited the amount
on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23
since the appellant’s case for condonation of interruption was not covered E
by Rule 4.23. The Government having subsequently refused the
relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated
27.05.1997 from Financial Commissioner & Secretary regarding giving
the benefit of past service, it was also mentioned that the case is not
covered by Rule 4.23 PCSR Volume II and clarification was called from
the Board. Letter dated 05.12.1994, which was also a letter from Financial F
Commissioner & Secretary was based on Rule 4.22, which mentioned
that period of break in service of the appellant be condoned which can
only be treated as leave without pay, which can only be counted for
seniority and pension. The said letter cannot come to the rescue of the
appellant since it did not refer to Rule 4.23, which was relevant and Rule G
4.22, which referred to interruption in period of absence and the period
from 02.02.1988 to 02.08.1994 was not period of absence but was a
period when the appellant had already taken voluntary retirement, the
said letter also does not come to rescue of the appellant. Further
subsequent correspondences with the Board and the Government clearly
H
340 SUPREME COURT REPORTS [2020] 1 S.C.R.
A indicate that rule, which was relevant was Rule 4.23 as applicable in the
State of Haryana and the proposal for relaxation from Rule 4.23 was
not acceded to by the Government as communicated by Director of
Secondary Education Haryana by letter dated 24.08.2001.
14. At no stage, the Government condoned the interruption between
B 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed
the writ petition, which judgment has been affirmed by the Division Bench
but High Court having not considered the relevant rule, i.e., Rule 4.23 as
applicable in the State of Haryana, which rule, we have noticed above,
the dismissal of the writ petition has to be sustained but on the reasons
as given above.
C
15. When the Statute does not permit condonation of interruption
of period from 02.02.1988 to 02.08.1994 and the proposal for granting
relaxation in Rule 4.23 had been refused, we cannot find any fault in the
decision of the respondent refusing to grant the benefit of condonation
by adding the earlier period. The appellant’s period after fresh appointment
D from 03.08.1994 being less than qualifying service of 10 years, he was
not entitled for pension.
16. In view of the foregoing discussions, we are of the view that
the appellant is not entitled for any relief in this appeal. The appeal is
dismissed.
E
Kalpana K. Tripathy Appeal dismissed.
F
G
H
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