IN THE HIGH COURT FOR THE STATE OF PUNJAB AND

HARYANA AT CHANDIGARH

C.W.P.No. OF 2010

DR. Krishan Chand Saini, resident of House No. 47, Preet

Nagar, Behind Saket Hospital, Ambala Cantt.

Petitioner

Versus

1. The State of Haryana through the Financial

Commissioner cum Principal Secretary to Government

of Haryana, Education Department, Haryana Civil

Secretariat, Chandigarh.

2. The Director of Secondary Education Haryana, 30 Bays

Building, Sector 17, Chandigarh.

3. D.A.V. Senior Secondary School Ambala Cantt, through

its Principal.

4. M.R.S.D. Senior Secondary School Shahzadpur, Tehsil

Naraingarh District Ambala through its Head Master. .

Respondents.

Civil writ Petition under Articles

226/227 of the Constitution of India

for issuance of writ in the nature of

Certiorari for quashing the

impugned order dated 24.4.2009

(Annexure P-9) whereby the

respondent No.2 declined the

request of the petitioner to count

his service, which he rendered in

Government aided school, for the

purpose of pension and other

benefits further a writ in the nature

of Mandamus directing the

Respondents to count the previous

service rendered by petitioner in

Govt. aided school for the purpose

of pension and other benefits with

all other consequential benefits.

And

issue any other writ, order or

direction which this Hon’ble Court

may deem fit in the peculiar facts

and circumstances of the case.

RESPECTFULLY SHOWETH:-

1. That the petitioner is resident of State of Haryana and

thus being citizen of India is entitled to invoke the extra

ordinary writ jurisdiction of this Hon’ble Court by way of

present writ petition under Article 226/227 of the

constitution of India.

2. That the brief facts which giving rise to the present writ

petition are that the petitioner had joined the services

earlier in Haryana Government aided school and thereafter,

he was appointed in Haryana Government School and during

his service in aided schools 75% salary was being paid to

him out of the grant paid by Government of Haryana from

the Haryana Government funds and rest of the amount was

paid to him by the management.

3. That date of joining and relieving of the petitioner

against aided sanctioned posts in Haryana government

aided and Recognized school, situated in the State of

Haryana, and date of his joining in Haryana

Government school along with post and designation is

given below :-

i) The petitioner joined as S.S Master in D.A.V. Senior

Secondary School Ambala Cantt on 6.7.1984 and

relieved from the above said school on 20.4.1993.

The appointment letter issued to the petitioner is

attached here with as Annexure P-1 with the writ

petition.

ii) The petitioner joined as Head Master in M.R.S.D.

Senior Secondary School Shahzadpur, Tehsil

Naraingarh District Ambala on 20.4.1993 to

15.9.1997. The appointment letter issued to the

petitioner is attached here with as Annexure P-2

with the writ petition.

It is relevant to mention here that petitioner while

working as S.S. Master in the D.A.V school Ambala Cantt

relived on 19.4.1993 and joined as Head Master in M.R.S.D.

School and in this way petitioner has rendered total period of

13 years and 2 months and 10 days service without any

break in government aided school.

4. That thereafter, the Petitioner was appointed as Head

Master in Government High School, Holi, Tehsil and District

Ambala on 16.9.1997 and remained there upto 8.8.2004

and thereafter, he was transferred to Government Girls High

School Mullana and joined on 9.8.2004 and remained there

upto 23.1.2006. The appointment letter issued by the

respondent is attached here with as Annexure P-3.

5. That the petitioner was promoted to the post of

principal vide letter dated 19.1.2006 and joined as principal

on 23.1.2006 in Government Senior Secondary School

Mullana and worked there upto 29.9.2007 and again he was

transferred in Government Senior Secondary School Saha

and the petitioner was retired from the above said school on

30.11.2008. The letter dated 19.1.2006 is attached here with

as Annexure P-4 with the writ petition

6. That it is worth while to mention here that the E.P.F. of

petitioner lying with the Government Aided schools have

also been transferred to the G.P.F account of the petitioner

i.e. account number HR/Edu/144495 vide draft no.351228

dated 1.5.02 to AG Haryana at Chandigarh. The petitioner

has not withdrawn any gratuity or other pensionary benefits

for the period of service rendered in above said Government

aided schools.

7. That even in Haryana Government aided schools the

scheme of Pension has been introduced and now the

teachers / masters/lecturers retiring from private schools

aided by Government of Haryana are getting pension and

therefore, the service rendered by the petitioner in

government aided school should be counted towards

qualifying service.

8. That the petitioner applied through proper channel for

the post of Head master in the Haryana Education

Department and on 16.9.97 and the petitioner was selected

and appointed as Head Master in the Haryana Government

Education Department.

9. That the petitioner, before joining his services as Head

Master with the Respondent No. 1 and 2 was working with

the respondent No.3 & 4 school and respondent No.3 and 4

are the school which are taking 75% aid from the

Government of Haryana and in this way it is clear that the

petitioner was working on the post of teacher, which were

funded by the Government of Haryana is very much

emendable to the writ jurisdiction of this Hon’ble Court and

so far as relief claimed by the petitioner is concerned, i.e.

from Respondent No.2 as the petitioner, who was working

with Respondent NO.3 and 4 Schools, when appointed in the

Government School on the post of Head Master was entitled

for the benefit of counting of his service rendered in

respondent No. 3 and 4 Schools, for the purpose of

pensionary benefits and for making the record of the same in

his service book. To that effect, the petitioner moved a

representation to the Director of Secondary Education

Haryana. A copy of the representation dated 24.9.2002 is

attached herewith as Annexure P-5 for the kind perusal of

this Hon’ble Court.

10. That thereafter also the petitioner has made number of

representation but to no avail and thereafter the petitioner

served upon the respondents a legal notice dated 25.8.2008

and requested the respondent No.1 and 2 to count his period

of service which he rendered in Government aided school.

Copy of the legal notice dated 25.8.2008 is appended

herewith as Annexure P-6 for the kind perusal of this

Hon’ble Court. But nothing was done by the Respondents.

Finally, aggrieved by the inaction on the part of the

Respondents, the petitioner filed writ petition before this

Hon’ble Court vide CWP No. 20062 of 2008, which came up

for hearing before this Hon’ble High Court on 27.11.2008

and the same was disposed of by the Hon’ble Division Bench

of this Hon’ble Court with the directions to the Respondents

No.2 to decide the legal notice dated 25.8.08 by passing a

speaking order within a period of 2 months from the date of

receipt of certified dopy of the order. The true typed copy of

the order passed by the Division Bench of this Hon’ble Court

is attached here with as Annexure P-7.

11. That the respondent remained failed to comply with the

direction contained in the order passed by the Hon’ble

Division Bench of this Hon’ble Court and ultimately forced

the petitioner to file contempt petition before this Hon’ble

Court and during the pendency of the contempt petition the

respondents rejected the claim of the petitioner by saying

that as per rules 3.16 of Civil Services, rules, Volume , the

petitioner is not entitled for the period of service rendered in

above said school to be added in the service book so as to

count that period for the purpose of retrial and pensionary

benefits with all other consequential benefits. A copy of the

rejection order dated 24.4.2009 is attached here with as

Annexure P-8 for the kind perusal of this Hon’ble Court.

12. That the action of the Respondents (Annexure P-8)

rejecting the claim of the petitioner on the flimsy grounds is

absolutely illegal, arbitrary, unconstitutional and violative of

Articles 14 and 16 of the Constitution of India, inter alia on

the following grounds:-

(i) That the claim of the petitioner has been

rejected by saying that there is a clear cut

provision in Rules 3.16 of Civil Services

Rules, Volume II and further saying that the

petitioner is not entitled for pensionary

benefits for service rendered in different

aided school, whereas the petitioner fulfills all

the above mentioned conditions. The

relevant Rule including 3.16 of CSR is

reproduced asunder :-

“3.12 The service of Government

employee does not qualify for pension

unless it confirms to the following three

conditions:-

First:- The service must be under

Government.

Second:- The Employment must be

substantive and permanent;

Third:- Service must be paid by

Government.

These three conditions are fully

explained in the following rules:-

3.16(a) The service of a Government

Employee does not quality unless

he is appointed and his duties and

pay a regulated by the Government

or under conditions determined by

the Government.

(b) Past service rendered in a part B

State (excluding Surashtra but

including an Indian State which

subsequently became a part B

State) shall be treated as

equivalent to Government Service

for the purpose of pension and shall

count for pension on permanent

absorption in the Punjab

Government Service in the same

manner as such service tendered

informer Part ‘A’ State counts.

3.17. In case of an officer retiring on or

after 5th January, 1961, if he 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 paid from

contingencies.”

In fact, the petitioner was appointed in two

aided School which is a Government aided

school, against the grant-in-aid post. Further,

it is important to mention here that the

petitioner came in the Education Department

of Government of Haryana after applying for

the same through proper channel. Since the

intuition is aided by the Government, so it

has to be considered as Government of

Haryana Institution. Moreover, the petitioner

has completed his probation period and he

was working against a permanent post. So,

he was holding the post substantively and

since the grand-in-aid was given for the post,

the petitioner was working against, so the

conditions of Rule 3.12 are fulfilled. Further, it

is relevant to mention here that the Rule 3.16

of Civil Services Rules, Volume II which

excludes employees of the Municipality and

grant-in-aid schools in not at all applicable in

the case after the implementation of the

Pension Scheme in the Municipal/Corporation,

their entire length of service is to be counted

as qualifying service for pension. Similarly, in

the case of aided schools also, Pension

scheme has been introduced by the Haryana

Government and their entire length of

Service is also countable for pension.

(ii) That in the case of employees of the

Municipal Committees/ Councils “ The

Haryana Municipal Employees Pension and

General Provident Fund Rules, 1993 ‘ Were

made applicable w.e.f. April, 1992 and all the

employees of the Municipal Committees were

entitled to the entire length of service benefit

as qualifying service and are getting pension.

Similarly, in the case of Aided Schools too ‘

Haryana Aided Schools ( Special Pension and

Contributory Provident Fund Rules, 2001’

have been made applicable and in this case

too all Pension Schemes applicable to

Haryana Government Employees have been

made applicable for aided schools teachers.

Further, ‘aided sanctioned post’ has been

defined as under:-

“Definition:-

“ Aided sanctioned post” means the post for

which grant in

aid is allowed by the Education Department,

Haryana.

Qualifying Service.

The service of an employee shall qualify for

retirement benefit under these rules:

i) “ The service rendered on attaining

the age of 18 years on AIDED

SANCTIONED POST.

ii) The service rendered till the

attainment of the age of sixty

years in the case of others, service

rendered till the attainment of the

age of fifty eight years. However,

the qualifying service shall be

taken into account with effect from

the date an employee subscribed

contribution towards Contributory

Provident Fund”.

It is important to mention here that if the

petitioner would have been working in the

aided school during his entire service, the

services would have been counted as

qualifying service for pension which is at par

with the Government service. Since the

petitioner was working against the grant-in-

aid sanctioned post, he is entitled for all

pensionary benefits and all other

consequential benefits. The petitioner was

also contributing his part of Contributory

Provident Fund in the previous intuition also

and the same was later on transfer to the

GPF account of the petitioner with the

respondent no.1 and 2.

(iii) That it is relevant to mention here that in the

case of Municipal Committee/Aided Schools,

their entire length of Service has been

counted as qualifying service and they are

getting pensionary benefits accordingly. It is

further submitted that even in the case of

taken over schools, the employees get

benefit of their entire length of service

towards qualifying service. It is also relevant

to submit that Government of Haryana has

also issued instructions vide their letter No.

½(4096-2F1-II dated 7.1.2002) by which the

service under the Autonomous Bodies and

vice versa are countable towards qualifying

service.

(iv) That such issue has been considered by the

Hon’ble Court in several judgments as under:-

i) In the case of ‘ Sukhdev Singh Vs. State

of Punjab 2005(30 RSDJ 111:

“ Counting of past service.

Held: That the letters of

resignation acceptance thereof and the act of

the petitioners joining the respondent

department without any such objection being

raised by the respondent department, clearly

implies that the petitioners were relieved

from the Beas Board, so as to enable them to

forthwith join the respondent department- In

case there is any ambiguity in the orders

accepting the resignation, that could not be

blamed to deny the petitioners the benefit of

the past service on such a trivial ground,

indicative of a complete non-application of

mind.

Petitioner are held entitled to the benefit of

past service rendered by them in the Beas

School.”

In the case of ‘Balwant Singh Versus State of

Haryana and other CWP No. 16337 of 1997

decided on 30.11.1999, this Hon’ble Court

held as under:-

“Punjab Civil Services Rules Volume II, Rule

3.17-A read with Rule 4.19 (a) Pensionary

benefits – Service rendered in Zila Parishad

before absorption in Government Service-

The length of service of the petitioner 13

years- Respondent directed to determine the

pension payable to the petitioner in

accordance with rules- The petitioner bound

to return the contributory provident if any:

Rule 3.17 (d) CSR Vol. II.

“ Resignation from the public service or

dismissal or removal from it for misconduct,

insolvency, inefficiency not due to age, or

failure to pass prescribed will entail forfeiture

of past service in terms of rule 4.19 (a) of

Punjab Civil Service Rules Volume II.”

In another CWP NO. 3297 of 2002 decided on

20.2.2003 in the case of Union of India and

others Vs. Jawahar lal Sharma wholly in the

similar circumstances, a Division Bench of

Hon’ble Rajasthan High Court has held as

under:-

“Pensionary Benefits-

Counting of past service-

Previous services rendered in Government

aided Institution receiving more than 50%

grant-in-aid shall be counted in future

government employment”

v) That the work and conduct of the petitioner

has throughout been good and there is

nothing adverse pending against him. The

petitioner was ordered to be relieved on

15.9.1997 from the school of the respondent

No.4 and joint at Government High School,

Holi on 16.9.1997. Here it is also important to

mention here that the petitioner, who applied

through proper channel joined without any

break within the period of joining time within

the Education Department of the Government

of Haryana, so it cannot be taken as break in

service and once there is no break in service

between the previous institution and the 2nd

institution, the period has to be counted for

the purpose of pensionary benefits and other

consequential benefits.

vi) That the Respondent have rejected the claim

of the petitioner absolutely on the flimsy

grounds which deserves to be quashed on

the grounds mentioned above.

13. That the main questions of law involved in the present

writ petition for the kind consideration of this Hon’ble Court

are as under:-

(i) Whether grave and manifest injustice has

been caused to the petitioner?

(ii) Whether the action of the Respondents is

violative of the provisions of Articles 14 and

16 of the Constitution of India?

(iii) Whether the petitioner is entitled to the

benefit of qualifying service which he

rendered in aided grant-in-aid school on the

sanctioned grant-in-aid post on regular basis

and was relieved to join Education

Department of the Government of Haryana?

(iv) Whether the petitioner is entitled for the

counting of his service for pensionary

benefits and adding the service of the

petitioner in his service record.

(v) Whether the action of the respondents in

rejecting the claim of the petitioner is illegal,

unjust, unfair, unconstitutional and against

the settled law?

14. That the petitioner has not filed any such or similar

petition before this Hon’ble Court or Before Hon’ble Supreme

Court of India except Civil Writ Petition NO. 20062 of 2008

titled as Dr. Krishan Chand Saini Versus State of Haryana

decided on 27.11.2008 with a direction to the respondents to

decide the legal notice within a period of 2 months.

15. That the petitioner has no other efficacious remedy of

appeal and revision except to approach this Hon’ble Court

under Article 226 and 227 of the Constitution of India.

In view of submissions made above, it is most

respectfully prayed that this Hon’ble Court may be pleased

to issue:-

i) Writ in the nature of Certiorari for

quashing the impugned order

dated 24.4.2009 (Annexure P-9)

whereby the respondent No.2

declined the request of the

petitioner to count his service,

which he rendered in Government

aided school, for the purpose of

pension and other benefits;

ii) Issue a writ in the nature of

Mandamus directing the

Respondents to count the previous

service rendered by petitioner in

Govt. aided school for the purpose

of pension and other benefits with

all other consequential benefits;

iii) to issue any other appropriate Writ,

order or direction which may be

deemed fit and proper under the

facts and circumstances of the

present case.

iv) to dispense with the service of

advance notice upon the

respondents;

v) to accept the present writ petition

with costs in favour of the

petitioner and against the

respondents;

vi) to dispense with the filing of the

certified copies of the Annexures;

vii) Cost of litigation be awarded to the

petitioner.

CHANDIGARH: (PETITIONER)

DATED:

THROUGH:

(DEEPAK SHARMA & SUKHWINDER SINGH)

ADVOCATE

COUNSEL FOR THE PETITIONER

VERIFICATION:

Verified that the contents of para no. 1 to 12 and 14

and 15 are true and correct to my knowledge and that of

para no. 13 are believed to be true and correct being legal

advice sought from the counsel. No part of it is incorrect or

false and nothing material fact has been kept concealed

therefrom.

CHANDIGARH: PETITIONER

DATED:

IN THE HIGH COURT FOR THE STATE OF PUNJAB AND

HARYANA AT CHANDIGARH

C.W.P. NO. …………. OF 2010

DR. Krishan Chand Saini, resident of House No. 47, Preet

Nagar, Behind Saket Hospital, Ambala Cantt.

Petitioner

Versus

State of Haryana and ors

Respondents

Affidavit of DR. Krishan Chand

Saini, resident of House No. 47,

Preet Nagar, Behind Saket Hospital,

Ambala Cantt.

I the above named deponent do hereby solemnly affirm and

declare as under:-

1. That the deponent is filling the above titled writ petition

before this Hon’ble Court and which is likely to be succeed

on the grounds taken therein.

2. That the contents of the writ petition from para No. 1 to

12 and 14 & and 15 are true and correct to my knowledge

and belief and Para No. 13 is taken on the advice of the

Counsel which is believed to be correct. No Part of it is false

and nothing has been kept concealed therein.

3. That the petitioner has not filed any such or similar

petition before this Hon’ble Court or Before Hon’ble Supreme

Court of India except Civil Writ Petition NO. 20062 of 2008

titled as Dr. Krishan Chand Saini Versus State of Haryana

decided on 27.11.2008 with a direction to the respondents to

decide the legal notice within a period of 2 months.

CHANDIGARH DEPONENT

DATED

Verification

It is verified that the contents of my above said affidavit

are true and correct to my knowledge and belief. No part of

it is false and nothing has been kept concealed therein.

CHANDIGARH DEPONENT

DATED