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2006 DIGILAW 2766 (PNJ)

Partap Singh v. State Of Haryana

2006-07-14

P.S.PATWALIA

body2006
Judgment P. S. PATWALIA, J. 1. This regular second appeal has been filed assailing the judgment of the learned District Judge, Sonepat whereby the learned District Judge has accepted the appeal filed by the respondent State of Haryana and the Haryana state Agriculture Marketing Board, Panchkula (hereinafter to be referred as, `the board) and held that service rendered by the appellant-plaintiff in the Cooperative department of the State of Haryana from 11/12/1961 to 16/12/1969 would not count towards his pensionary benefits. 2. The appellant-plaintiff filed a suit for declaration with consequential relief of permanent injunction on the plea that before joining the service of the board as an Accountant in the Market Committee, he had served in the Cooperative department from 11.12.1961 to 16.12.1969. Ultimately, he had retired from the post of Executive Officer-cum-Secretary, Market Committee, Sonepat on 30.11.1999. He claimed that the period of service rendered by him in Co-operative department of the State of Haryana should be counted towards his qualifying service for pension upon his retirement as an Executive Officer-cum-Secretary, market Committee under the Board. 3. While the trial Court granted this relief to the appellant, the appellate Court came to the conclusion that the appellant-plaintiff was not entitled to the benefit of service rendered by him in the Co-operative Department from 11.12.1961 to 1.2.1969. The Appellate Court on going through the facts on the record and examining the service book of the appellant-plaintiff rejected his claim and the relevant observations are as hereunder:- "the stand of the plaintiff is that the entire service rendered by him in the cooperative department from 11.12.1961 to 16.12.1969 is to be included in the service rendered by him in the Board for the purpose of his retiral benefits whereas the stand of the defendants in the grounds of appeal is that since there was a break in the service of the plaintiff in cooperative department from 1.2.69 and 19.2.69 and he joined the cooperative department as a new entrant w. e. f.20.2.69, he shall not be entitled to the benefit of service rendered by him in the cooperative department from 11.12.61 to 1.2.69. The counsel for the defendants in support of his arguments referred to the entries of service book of plaintiff Ex. PX/2 which read as under:- 13. After going through the aforesaid entries in the service book ex. The counsel for the defendants in support of his arguments referred to the entries of service book of plaintiff Ex. PX/2 which read as under:- 13. After going through the aforesaid entries in the service book ex. PX/2, I find substance in the arguments of the appellants counsel. It is clear from the first two entries that the plaintiff submitted his resignation which was accepted from 1.2.69. He was again appointed to the post of Sub Inspector in Cooperative department as a new entrant w. e. f.20.2.69. It has been specifically mentioned therein that there will be break in his previous service as he remained out of service. Both these entries are supported by the letters of the department. Since the plaintiff joined as a new entrant in Cooperative Department from 20.2.69 after a break in the previous service, his continuous service will be counted from 20.2.69 till the date of his retirement and not w. e. f.11.12.61. The counsel for the plaintiff argued that since the fourth entry in the service book Ex. PX/2 has verified his service from 1.2.69 to 16.12.69, when the plaintiff finally resigned to join the Board, his break if any, was regularised and as such he shall be deemed to be in continuous service in cooperative department from 11.12.61 to 16.12.69. But this argument of the counsel for the plaintiff is devoid of any merit. When it has been specifically mentioned in Entry No.2 that the plaintiff joined as a new entrant w. e. f.20.2.1969 and it was also mentioned that there will be break in his previous service as he remained out of service and that entry has been supported by a letter, the plaintiff cannot draw any help from entry no.4 which has been made without any basis. If the service of the plaintiff was regularized for the period of break i. e.1.2.69 to 20.2.69, there should have been some specific order of the competent authority to that effect which should have been mentioned in entry no.4. But there is no reference of any such order. So, entry no.4 appears to have been wrongly made when it has no basis to justify the correctness thereof and it is against entry no.2 which has been made on the basis of a letter detailed therein. But there is no reference of any such order. So, entry no.4 appears to have been wrongly made when it has no basis to justify the correctness thereof and it is against entry no.2 which has been made on the basis of a letter detailed therein. Note (1) of Rule 3.17 clearly mentions that the benefit of "continuous/temporary/officiating service" is to be given to an employee who is transferred from one department to the other. Since there was a break in service of the plaintiff from 1.2.69 to 19.2.69, his service cannot be said to be continuous from 11.12.1961 till the date of retirement of the plaintiff. However, the plaintiff rejoined the cooperative department on 20.2.69 and thereafter he applied through proper channel and joined the Board immediately after resigning from cooperative department. So, he shall be entitled to the benefit of his service in the cooperative department from 20.2.69 till 16.12.69 and not prior to that. " 4 A perusal of these observations would show that the appellant had resigned from service on 1.2.1969. The initial noting in the service book on 1.1.1970 shows that the resignation was accepted from 1.2.1969. Thereafter he re-joined the service under the Board on 20.2.1969. Therefore factually there was a break in service for 19 days. The third noting of the service book extracted by the lower Appellate court shows that the resignation was now accepted from 16.12.1969. Even on this premises there is a break in the service for four days. The relevant rule under which the service rendered in an earlier appointment can be counted is Rule 3.17 of the Punjab Civil Services, as applicable to Haryana, relevant portion of which is extracted as hereunder:- "3.17. If an employee 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 in work-charged establishment; and (iii) Period of service paid from contingencies. " 5 A perusal of this rule would show that the service rendered on a previous assignment can only count `if it is without interruption. In the present case,however, there is an interruption in the two periods of service. " 5 A perusal of this rule would show that the service rendered on a previous assignment can only count `if it is without interruption. In the present case,however, there is an interruption in the two periods of service. Therefore, the lower Appellate Court has rightly concluded that the appellant-plaintiff shall be entitled to the benefit of service from 20.2.1969 onwards till he retired. There is no infirmity in the findings recorded by the lower Appellate Court. For the reasons aforementioned, the present regular second appeal is dismissed in limine.