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2013 DIGILAW 523 (HP)

Prem Sagar v. State Of H. P.

2013-06-11

A.M.KHANWILKAR, RAJIV SHARMA

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JUDGMENT A.M. Khanwilkar, J. Heard counsel for the parties. 2. The petitioner has asked for the following relief: "i. That the shortage of six months may be condoned as per the rules in this behalf and the respondents may be ordered to count the said period towards the qualifying service and the respondents may further be directed to grant pension to the petitioner from the due date with all arrears with 12% interest thereon." 3. It is not in dispute that the petitioner has put in only nine years and seven months of service. The question is whether Rule 49 (3) of the CCS (Pension) Rules would oblige the respondents to reckon the period of service of the petitioner as complete year for determining the qualifying service. Rule 49 (3) reads thus: "49. Amount of Pension (1) xxx xxx xxx (2) xxx xxx xxx (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. It would be apposite to also advert to the instructions issued by the Government of India in furtherance of Rule 49 (3), which read thus: " (2) Three months and above but less than six months treated as one-half year. The intention of sub-rule (3) of Rule 49 is that, the period of three months and above but less than six months would be treated as a completed one-half year and reckoned as qualifying service for determining of pension. The period of nine months would, therefore, be two half years. [D.O. No. 28 (15)/83PU, dated the 13th October, 1983, from Shri K.S. Mahadevan, Under Secretary to the Government of India, Ministry of Home Affairs, addressed to Shri P. Muthuswamy.] (emphasis supplied)" 5. On conjoint reading of the Rule and the instructions, we have no manner of doubt that unless the employee has put in at least "nine years and nine months" of service, it would not be permissible to treat the person having completed the qualifying service of ten years. The rounding off may not be possible even if there was to be shortfall of one day. The two half years can be reckoned only if the period is nine months or more. 6. The rounding off may not be possible even if there was to be shortfall of one day. The two half years can be reckoned only if the period is nine months or more. 6. The argument of the petitioner, is that, the petitioner having completed nine years and seven months' service, it must be reckoned as having completed two half years and thus deemed to have completed ten years of qualifying service. This argument runs counter to the express provision contained in Rule 49 (3) of the Rules read with the instructions issued by the Government of India. To get over this position, counsel for the petitioner placed reliance on the decision of the Punjab and Haryana High Court in the case of Surjit Singh v. Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others, 2011 (2) SLR 689. 7. On a fair reading of the said judgment, it appears that the Division Bench correctly reproduced the relevant provision of Rule 49 (3) and the instructions issued by the Government of India, in paragraph 4 of the judgment. Thereafter reference is made to Rule 50 and the instructions issued therefor, dated 6th February, 1989. It is then noted that the provision as in Rule 49 (3) is not available under Rule 50. But, then, in paragraph 6, the Court proceeded to give benefit to the petitioner therein, even though the petitioner had completed only nine years eight months and 23 days of service. Although, we may agree with the first sentence in paragraph 6, which is restating the position noted in Rule 49 (3) of the 1972 Rules, but, with due respect, we disagree with the conclusion of the Division Bench of the Punjab and Haryana High Court for the reasons already noted hitherto. For, the plain language of Rule 49 (3) read with the instructions issued by the Government of India, do not permit such construction. Notably, the Punjab and Haryana High Court has not dealt with the efficacy of the Full Bench decision of the Tribunal referred to in the earlier part of its decision. Suffice it to observe that the petitioner having completed only nine years and seven months of service, therefore, would not qualify for the benefit under Rule 49 (3) so as to be treated having completed qualifying service. 8. Hence, this writ petition fails and the same is dismissed.