SURINDER NATH KESAR versus BOARD OF SCHOOL EDUCATION & ORS.

Citation: [2020] 1 S.C.R. 329 · Decided: 06-01-2020 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

Judgment (excerpt)

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SURINDER NATH KESAR
v.
BOARD OF SCHOOL EDUCATION & ORS.
(Civil Appeal No. 9682 of 2019)
JANUARY 06, 2020
[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
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
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
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
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
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
   [2020] 1 S.C.R. 329
329
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
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
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
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
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.
[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
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]
[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
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9682
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.
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

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