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2012 DIGILAW 500 (HP)

Sunila Oberoi Malik v. State of Himachal Pradesh

2012-09-05

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, Judge: The present petition was moved before the HP State Administrative Tribunal. After its abolition it was transferred to this Court, thus registered and treated as Writ, whereby the petitioner seeks parity for the grant and release of pensionary benefits with other similarly situated persons, retired from H.P. University. 2. Precisely, the facts giving rise to the petition can be stated thus. The petitioner is a post-graduate and had worked for one year, i.e., 1967-68 as a part time teacher in the Department of Commerce and Business Management of Punjab University and as a teacher in following private/ Government aided educational institutions: Sl. No. Period Name of Institute (a) 1977 to February 1979 French Language in Centre of Continuing Education, Jammu & Kashmir University. (b) 19.5.1981 to 20.6.1981 Sacred Heart High School, Sidhpur, Dharamshala (HP). (c) 12.7.1983 to December,1986 Loreto Convent School, Tara Hall, Shimla. (d) July, 1987 to Feburary,1989 Daya Nand Public School Shimla (CBSE) (e) 2.5.1988 to February, 1989 PGT (English) for Plus Two Classes in DAV, Shimla (CBSE). (f) 15.3.1989 to 12.5.1998 Jesus & Mary (Chelsey), Shimla, (CBSE). 3. The petitioner did her Ph.D (Edu.) from the H.P. University in the year 1995. She was appointed as lecturer on 12.5.1998 in the respondent-University and retired on 30.6.2006. 4. On 22.3.2001, the respondent University issued the following notification (A-9):- “HIMACHAL PRADESH UNIVESITY GENERAL ADMINISTRATION SECTION No.3-24/76-HPU(Genl)Vol-III Dated: Shimla-5, the 22nd March, 2001. ‘NOTIFICATION’ The Executive Council vide res.no.3(5)(ii)(a) of its meting held on 16.2.2001 has been pleased to approve the superannuation benefits as provided under para 17.1.0 of U.G.C. guidelines, 1998 (circulated vide UGC letter No.F.3-1/94 (PS) dated 26.12.98) for implementation in the University as under:- “The benefit in service, up to a maximum of 3 years, should be provided for the teachers who have acquired Ph.d. degree at the time of entry so that, almost 5. Based upon the above notification, the petitioner represented to the respondent University for the grant of pensionary benefits claiming her eligibility despite putting in less than 10 years in University service and also counting her previous service in institutions referred herein above. 6. Based upon the above notification, the petitioner represented to the respondent University for the grant of pensionary benefits claiming her eligibility despite putting in less than 10 years in University service and also counting her previous service in institutions referred herein above. 6. The respondents turned down her request and declined the pension and other benefits on the grounds:- (i) The petitioner had only rendered 8 years one month and 17 days (excluding 2 days EOL), thus not completed 10 years qualifying service as required under Rule 49 of CCS (Pension) Rules, 1972. She was, however granted and released retirement and service gratuity and encashment of unutilized earned leave; (ii) The previous service rendered in private Schools and part-time lecturer could not be counted for pensionary benefits; (iii) The benefit of notification (Annexure A-9) above is not admissible being not a part of R & P rules of the respondent University, like Horticulture & Forestry University, Nauni which is governed under the CCS (Pension) Rules, 1972 (Annexure R-II dated 13.1.2005); AND (iv) No such benefit is being given to alleged similarly situate persons on the points raised by the Local Audit Department (LAD) of the University. 7. Ms. Vandana Kuthiala, learned counsel for the petitioner submitted that similarly situated persons Dr. V.K. Rai, who had put in 26 years 11 months, Dr. R.K. Mahajan about 28 years and Dr. M.B. Banerjee about 31 years, were given benefit of 3 years on the basis of the notification Annexure A-9 above and put her reliance on judgment of the apex Court in Punjab State Electricity Board and Another v. Narata Singh & Another [ (2010) 4 SCC 317 ] to count the previous service of the petitioner as a qualifying service for the purpose of pension. The learned counsel also referred Para 15 and 16 of the judgment of the Supreme Court in Union of India & Others v. Rakesh Kumar with the connected maters [ (2001) 4 SCC 309 ] wherein Rule 49 of the Pension Rules has been referred and discussed. It is further argued that the audit objection raised by LAD has no role in view of the conscious decision taken by the competent authority and persuaded to the view taken in Prof.(Dr.) Kehar Singh v. The Guru Nanak Dev University & Ors.[2010 (6) SLR Vol.228 (P&H) 380] by the Punjab & Haryana High Court. It is further argued that the audit objection raised by LAD has no role in view of the conscious decision taken by the competent authority and persuaded to the view taken in Prof.(Dr.) Kehar Singh v. The Guru Nanak Dev University & Ors.[2010 (6) SLR Vol.228 (P&H) 380] by the Punjab & Haryana High Court. It is also submitted that in interpreting beneficial legislation liberal approach which advances the beneficent purpose underlying the enactment of preference to a construction which tends to depict that purpose is required to be adopted, thus relied upon para 12 of the judgment of Supreme Court in Shivaji Dayanu Patil and another v. Smt.Vatschala Utam More [AIR 1991 SC 1719], and also New India Assurance Co. Ltd. v. C. Padma & Another [ (2003) 7 SCC 713 ], H.N. Shankara Shastry v. Asstt. Director of Agriculture, Karnataka [ (2004) 6 SCC 230 ] wherein the provisions of motor vehicles or Consumer Protection Act 1986 were interpreted and it is also contended that while interpreting a statute Court shall not go beyond statute unless absolutely necessary as held in DLF QUTAB ENCLAVE COMPLEX EDUCATIONAL CHARITABLE TRUST V. STATE OF HARYANA AND OTHERS [ (2003) 5 SCC 622 ]. 8. Contra, Sh. Vinod Thakur, learned counsel for the University submitted that insofar as the legal proposition qua interpretation and beneficial application of a statute is concerned, is not disputed, but such an interpretation is neither involved in the present case nor attracted. It is also argued that Narata Ram’s case supra was a case of a temporary employee, who was retrenched from the service of Central/ State Government and had secured employment with Punjab Electricity Board, was held entitled to count temporary service rendered by him in Central/ State Government to the extent such service was qualified for grant of pension under the Rules of such Government; which proposition also does not arise in the present case, whereas the case of petitioner is quite juxta apposite, she was never in continuous service of any Government Department nor there is any rule of the University to provide for counting such a private service rendered, for pensionary benefits. The learned counsel forcefully argued that Rule 49 aforesaid provides the procedure for calculating and qualifying the amount of pension which a Government servant is entitled on superannuation after rendering 20, 30 or 33 years of qualifying service, but if the qualifying service is less than 10 years, the Government service would not be entitled to pension except the amount of gratuity. It is further argued that the notification (Annexure A-9) above is only applicable to the pensioners who are already getting pension, provided therein but not to those who are short of 10 years of qualifying service. The instances of other alleged similar situate retirees are in fact not so; therefore, the petitioner cannot derive any benefit quoting their instances. Thus, the petitioner has no case for granting the relief sought for. 9. I have given my thoughtful consideration to the rival contentions and have examined the record. 10. Rule 3 (q) of the Pension Rules defines ‘Qualifying Service’ which means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. 11. Rule 49 reads as follows:- “49. Amount of Pension (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service. 11. Rule 49 reads as follows:- “49. Amount of Pension (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service. (2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.]; (b) in the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than [Rupee three hundred and seventy-five] per mensem; (c) notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54 (3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service. (4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee. (5) & (6) Deleted.” [Emphasis supplied] 12. In para-16 in Union of India vs. Rakesh Kumar supra, the Supreme Court held that qualifying service defined under Rule 3 (q) is to mean service rendered while on duty or otherwise which shall be taken into account for the purpose of pension and gratuities admissible under these rules. Rule 13 provides that qualifying service by a Government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that ‘qualifying service’ for getting pension is 10 years. Rule 13 provides that qualifying service by a Government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that ‘qualifying service’ for getting pension is 10 years. On the contrary, there is specific provision that if a Government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement, he would not get pension except service gratuity calculated at the rate of half months emoluments for every completed six monthly period of qualifying service, to which in the instant case has already been given to the petitioner. Annexure A-9 notification was issued, as per University Grant Commission guidelines, in the year 1999 whereby the benefit in service, upto maximum of 3 years was to be given to the teachers who have acquired Ph.D degree at the time of entry, so that, almost all teachers get full retirement benefits which are available after 33 years of service, subject to the overall age of superannuation. Therefore, there is no scope of interpreting the rules and applying the law cited above to count the service rendered by the petitioner in any private educational institutions to make her eligible for full pension by counting such previous service as a qualifying service, as in my opinion the notification aforesaid does not convey the sense/ intention as being projected and persuaded. 13. In result, the benefit of 3 years sought for vide notification Annexure A-9 cannot be added to the actual service of 8 years 1 month and 17 days (excluding 2 days EOL), to make her eligible for the pension and retiral benefits. 14. In view of the above, the petition is dismissed, so also the pending application(s), if any.