Vinay Kumar Verma vs State Of Haryana And Another

CWP-35347-2019 (O&M) 1 of 24
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
207 CWP-35347-2019 (O&M)
Date of decision: 10.09.2026
Vinay Kumar Verma ...Petitioner(s)
Vs.
State of Haryana and another ...Respondent(s)
CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Sunil K. Nehra, Sr. Advocate with
Mr. Viren Nehra, Advocate
for the petitioner.
.
Mr. Chirag Wadhwa, D.A.G., Haryana
*
NIDHI GUPTA, J.
Present Civil Writ Petition under Articles 226/227 of the
Constitution of India has been filed by the petitioner for the issuance of a
writ in the nature of Certiorari quashing the impugned order dated
09.01.2015 (Annexure P-9) vide which the extension granted to the
petitioner's tenure has been cancelled without issuance of any show
cause notice; and quashing the impugned order dated 25.07.2017
( Annexure P-15 ) vide which the claim with respect to salary for the period
ranging from 12.02.2015 to 30.09.2016 has been rejected; and also
quashing the impugned order dated 12.07.2019 (Annexure P-20) vide
which the claim of the petitioner for release of pensionary benefits has
been rejected by passing a non speaking order in violation of the orders
dated 10.05.2017 (Annexure P-14) passed by this Court in CWP No. 10015
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of 2017; AND issuance of a writ in the nature of Mandamus directing the
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CWP-35347-2019 (O&M) 2 of 24
respondents to release gratuity to the petitioner as per Payment of
Gratuity Act, 1972 alongwith interest; AND issuance of a writ in the nature
of Mandamus directing the respondents to release salary to the petitioner
from the period 12.02.2015 till 30.09.2016 with interest as the extension
granted to the petitioner was cancelled without assigning any reason;
AND issuance of a writ in the nature of Mandamus directing the
respondents to release the pensionary benefits to the petitioner i.e.
pension, leave encashment, gratuity etc. on account of 11 years 2 months
and 27 days service rendered by the petitioner with the respondents
alongwith interest.
2. Brief sequence of events in chronological order is as follows:–
04.02.1998: Vide Notification dated 04.02.1998 (Annexure P-28) the
‘Motilal Nehru School of Sports, Rai (Group B), Service Rules 1998’ were
issued under the Proviso to Article 309 of the Constitution of India.
19.07.2003: Following an advertisement, the petitioner was appointed as
Principal and Director at Moti Lal Nehru School of Sports, Rai, vide
appointment letter dated 19.7.2003 (Annexure P-1). As per condition (vi)
of the appointment letter, pay was fixed in the scale of Rs. 14,300-18,300
subject to Rule 7.20 of CSR Vol. II.
16.10.2003: Vide letter dated 16.10.2003 (Annexure P-2), the petitioner
took over charge of the post of Principal & Director.
23.07.2004: Vide order dated 23.07.2004 (Annexure P-12), pay was fixed
at Rs. 18,300/- (the highest point in the pay scale) independent of
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CWP-35347-2019 (O&M) 3 of 24
pensionary benefits allowed to be drawn by him under Rule 7.20(a) of CSR
Vol II.
27.12.2005: Vide letter dated 27.12.2005 (Annexure P-3), Condition 1 of
the appointment letter was modified, extending initial 3-year tenure to 5
years.
2007: In the year 2007, the petitioner was conferred with the CBSE
Teacher's Award (Annexure P-22).
10.10.2008: Vide letter dated 10.10.2008 (Annexure P-4), the petitioner's
tenure was further extended from 5 years to 10 years or until attaining 60
years of age, whichever was earlier.
14.09.2011: Vide letter dated 14.09.2011 (Annexure P-5), service tenure
was extended for 1 year (from 15.09.2011 to 15.09.2012), fixing
superannuation at 30.09.2012.
11.09.2012: Vide letter dated 11.09.2012 (Annexure P-6), service tenure
was further extended for 1 year up to 30.09.2013.
20.09.2013: Vide letter dated 20.09.2013 (Annexure P-7), service tenure
was further extended for 1 year up to 30.09.2014.
20.09.2013: Vide letter dated 20.09.2013 (Annexure P-27), petitioner was
informed about recording of his Annual Confidential Report (ACR) by the
Additional Chief Secretary.
18.02.2014: Vide Circular dated 18.02.2014 (Annexure P-23), CBSE
amended/added rules specifying that recipients of National/State/CBSE
Teacher's Awards shall superannuate at the age of 65 years.
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07.08.2014: Vide letter dated 07.08.2014 (Annexure P-8), service tenure
was extended by 2 years up to 30.09.2016 in view of amended CBSE
bylaws.
09.01.2015: Vide impugned order dated 09.01.2015 (Annexure P-9), the
petitioner's extended tenure was ended with immediate effect without
issuing a prior show-cause notice.
12.01.2015: Vide letter dated 12.01.2015 (Annexure P-10), the petitioner
handed over charge to the Deputy Commissioner, Sonepat, having served
11 years, 2 months, and 27 days.
27.04.2015: Vide order dated 27.04.2015 (Annexure P-26), the
respondent authorized the final withdrawal of 24,63,775/- (including
accumulated interest up to April 2015) under General Provident Fund
Account No. HR-Edu-161045 assigned to the petitioner.
21.10.2015: The petitioner submitted a representation dated 21.10.2015
(Annexure P-11) for the release of pensionary benefits (pension, leave
encashment, gratuity).
16.11.2016: Impugned non-speaking order dated 16.11.2016 (Annexure P-
13) was passed rejecting the representation.
10.05.2017: Vide order dated 10.05.2017 (Annexure P-14), this Court in
CWP No. 10015 of 2017 set aside the order dated 16.11.2016 and
directed the Additional Chief Secretary to pass a reasoned and speaking
order.
25.07.2017: Impugned order dated 25.07.2017 (Annexure P-15) was
passed by the Principal Secretary rejecting the claim for salary (12.02.2015
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to 30.09.2016); and referring pensionary benefits to Finance Department
due to perceived contradictions between Rule 2.4 and Rule 7.20 of CSR
Vol II.
10.01.2018: The petitioner submitted a representation dated 10.01.2018
(Annexure P-16) seeking a final speaking order pursuant to the earlier
directions of this Court.
May 2018 – October 2018: Multiple reminders (Annexure P-17 colly.) were
sent by the petitioner requesting a final decision on pensionary benefits.
14.11.2018: Petitioner received an email dated 14.11.2018 (Annexure P-
18) from the Director, Sports and Youth Affairs directing the petitioner to
approach the Principal and Director, MNSS Rai directly.
26.11.2018-10.06.2019: Further reminders (Annexure P-19 colly.) were
sent by the petitioner seeking implementation of the Court order and
release of benefits.
12.07.2019: Impugned non-speaking order dated 12.07.2019 (Annexure P-
20) was passed by the Chief Secretary, Sports & Youth Programme
Department, rejecting the petitioner's claim for pensionary benefits solely
on the remarks of the Accounts Officer.
15.07.2019: Representation dated 15.07.2019 (Annexure P-21) was
submitted pointing out non-compliance with the directions of this Court.
2.12.2019: Hence, as no response was received, present writ petition was
filed on 2.12.2019.
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09.12.2010: Reference is made to an order dated 09.12.2010 (Anneuxre P-
24) passed by this Court in CWP No. 16079 of 2010 titled as Justice N.Κ.
Sud (Retd.) v. State of Haryana and others.
21.05.2021: Vide Appointment Letter dated 21.05.2021 (Annexure P-25),
one Col. Ashok Mor was offered the appointment for the post of Principal
& Director, Motilal Nehru School of Sports (MNSS), Rai. His pay is fixed
according to the provisions of Rule 52 of HCS (Pay) Rules, 2016 in
Functional Pay Level 14 (FPL-14) as per the 7th Central Pay Commission.
3. Ld. Senior Counsel representing the petitioner has inter alia
submitted that from the facts noted above, it is clear that after his
appointment on 19.07.2003 as Principal & Director in the respondent
No.2-School, petitioner has been granted extensions from time to time;
and resultantly, petitioner has rendered 11 years, 2 months and 27 days of
uninterrupted service. The service of the petitioner was last extended vide
order dated 07.08.2014 (Annexure P-8) for a period of 2 years upto
30.09.2016. However, prior to the expiry of the said period, an order
dated 09.01.2015 (Annexure P-9) was issued; thereby ending the
petitioner’s extended tenure with immediate effect.
4. Ld. Senior Counsel submits that the petitioner in the present
Writ Petition is not pressing the relief sought qua setting aside of the said
order dated 09.01.2015 (Annexure P-9). It is submitted that due to the
passage of time, petitioner now limits his relief only for grant of
pensionary benefits to the petitioner, keeping in view the aforesaid facts,
especially as petitioner has completed 11 years, 2 months and 27 days of
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CWP-35347-2019 (O&M) 7 of 24
service as Principal. Ld. Senior Counsel submits that in this regard, the
petitioner had submitted a Representation dated 21.10.2015 (Annexure P-
11), which came to be rejected vide impugned order dated 16.11.2016
(Annexure P-13), which was totally a non-speaking order. Accordingly,
petitioner had approached this Court for setting aside of the said order
dated 16.11.2016 (Annexure P-13) by way of CWP-10015-2017 titled as
Vinay Kumar Verma vs. State of Haryana and another ; which was
disposed of vide order dated 10.05.2017 (Annexure P-14) directing the
Additional Chief Secretary, Government of Haryana to hear the petitioner
and pass a reasoned speaking order within two months.
5. In pursuance thereto, an order dated 25.07.2017 (Annexure
P-15) was passed by the Chief Secretary, Government of Haryana, who
had further sought advise from the Finance Department in respect of the
prayer made by the petitioner. Ld. Senior Counsel submits that thereafter
petitioner had submitted numerous Representations including
Representation dated 10.01.2018 (Annexure P-16), 08.05.2018 (Annexure
P-17 colly), 14.11.2018 (Annexure P-18) and 26.11.2018 (Annexure P-19);
whereafter finally, non-speaking impugned order dated 12.07.2019
(Annexure P-20) was passed by the Chief Secretary to Govt. of Haryana.
6. Ld. Senior Counsel assails the said impugned order dated
12.07.2019 by submitting that vide order dated 10.05.2017 (Annexure P-
14) passed in CWP-10015-2017 , the Additional Chief Secretary to
Government of Haryana had been directed to hear the petitioner and pass
a speaking order thereupon. However, the present impugned order dated
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12.07.2019 (Annexure P-20) has been passed by Chief Secretary to Govt.
of Haryana.
7. Moreover, the impugned order dated 12.07.2019 (Annexure
P-20) is based on a complete misreading of the Service Rules. It is
contended that a perusal of the order dated 19.07.2003 (Annexure P-1)
appointing the petitioner as Principal and Director clearly mentions that
pay scale of the petitioner and usual allowances will be payable to the
petitioner as per Rule 7.20 of the Civil Services Rules Vol.II. It is
contended that as per Rule 7.20, the authority is competent to fix pay and
allowances of the post on which the petitioner is re-employed after
considering the amount of pension he has withdrawn from the military.
However, in the written statement, respondents have altered service
condition of the petitioner and rejected the case of the petitioner by
taking recourse to Rule 2.4 of Chapter 2 of CSR Rules, Vol.II. Ld. Senior
Counsel argues that the same is not permissible as respondents cannot
change the service condition of the petitioner midway.
8. Ld. Senior Counsel further submits that petitioner has been
assigned a GPF account. Petitioner has worked against a regular
sanctioned post of Principal and Director. ACRs have been written for the
petitioner. Therefore, petitioner is a regular employee of the Department
for all intents and purposes. As such, service rendered by the petitioner is
liable to be counted for the purpose of pensionary benefits.
9. Ld. Senior Counsel further submits that pension is a condition
of service and even if there is no specific provision in the Act with regard
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CWP-35347-2019 (O&M) 9 of 24
to grant of pension, then also an employee is entitled to receive pension
in view of the service rendered by him. In this regard, learned Senior
counsel refers to judgment passed by this Court in CWP No. 16079 of
2010 titled as " Justice N.K. Sud (Retired) Vs. State of Haryana & Others "
(Annexure P-24). Even LPA No. 457 of 2011 filed against Judgment passed
in CWP No. 16079 of 2010 was dismissed by the Hon'ble Division Bench
on 17.01.2012.
10. Thus, the action of the respondents in not releasing
pensionary benefits to the petitioner is illegal and arbitrary and deserves
to be set aside. Not only the petitioner is entitled to pension for the
service rendered by him in the respondent-School but also is entitled for
increments, leave encashment and gratuity and also salary from the
period 12.02.2015 to 30.09.2016 as the extension granted to the
petitioner was cancelled without assigning any reason. The same be
released to the petitioner from the date it has become due along with
interest as per instructions issued by the Haryana Government.
11. It is accordingly prayed that the present Writ Petition be
allowed; and following prayers be accepted: -
“ Issue a writ in the nature of Certiorari quashing the
impugned order dated 09.01.2015 (Annexure P-9) vide which
the extension granted to the petitioner's tenure has been
cancelled without issuance of any show cause notice,
quashing the impugned order dated 25.07.2017 (Annexure P-
15) vide which the claim with respect to salary for the period
ranging from 12.02.2015 to 30.09.2016 has been rejected
and also quashing the impugned order dated 12.07.2019
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CWP-35347-2019 (O&M) 10 of 24
(Annexure P-20) vide which the claim of the petitioner for
release of pensionary benefits has been rejected by passing a
non speaking order in violation of the orders dated
10.05.2017 (Annexure P-14) passed by the Hon'ble High Court
in CWP No. 10015 of 2017; AND
Issue a writ in the nature of Mandamus directing the
respondents to release gratuity to the petitioner as per
Payment of Gratuity Act, 1972 alongwith interest; AND
Issue a writ in the nature of Mandamus directing the
respondents to release the pensionary benefits to the
petitioner i.e. pension, leave encashment, gratuity etc. on
account of 11 years 2 months and 27 days service rendered
by the petitioner with the respondents alongwith interest.”
12. Per contra, ld. State Counsel has vehemently opposed the
submissions addressed on behalf of the petitioner and has contended that
as per the initial Letter of Appointment dated 19.07.2003 (Annexure P-1),
petitioner had been appointed only for a limited period of 3 years. It is
argued that in this circumstance, as petitioner was appointed for a limited
period, Rule 2.4 would come into play, as per which, no claim of pension is
admissible in case of Government employees who are appointed only for
a limited time. Ld. State Counsel refers to the Rule 2.4 (a) of Chapter-2 of
the Rules Volume-II, reproduced below: -
"2.4 In the following cases no claim to pension is admitted:
(a) When a Government employee is appointed for a limited
time only, or for a specified duty, on the completion of which
he is to be discharged.”
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13. Ld. State Counsel argues that Rule 7.2 would apply if the
petitioner was working till attaining the age of superannuation. However,
in the present case admittedly, petitioner had only been appointed for a
limited period of time, and petitioner was appointed against a tenure
post. As such, pension is not payable to the petitioner.
14. Ld. State counsel further submits that a bare perusal of order
dated 9.1.2015 (Annexure P-9) clearly depicts that the extension period of
the petitioner w.e.f. 30.09.2014 to 30.09.2016 had been cancelled with
immediate effect by the respondent No.1. Meaning thereby services of
the petitioner were terminated as per the terms and conditions of the
appointment letter (P-1) as the services of the petitioner were terminable
at one month's notice on either side. Moreover, although the services of
the petitioner were terminated without notice but he was paid one
month's salary in lieu thereof on written request of the petitioner vide
order dated 21.09.2015. Since the services of the petitioners were
terminated, which does not fall in any category of retirement or
superannuation as mentioned in Chapter V, under the Head of DIFFERENT
KINDS OF PENSIONS AND CONDITIONS FOR THEIR GRANT, Section I,
Classification of Pensions, Rule 5.1 of the Rules, therefore, he is not
entitled for any type of pension as per rules. Therefore, the orders
Annexure P-9, P-15 and P-20 passed by respondent No. 1 are just and
legal, as per rules.
15. Ld. State counsel further contends that Petitioner is not
entitled for the Gratuity to be paid under the provisions of the Payment of
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CWP-35347-2019 (O&M) 12 of 24
Gratuity Act, 1972 as the provisions of this Act are not applicable to the
petitioner being employee of the State Government which has its own
Rules for payment of gratuity. It is contended that petitioner does not fall
in the definition of ‘Employee’ provided in Section 2 (e) of the Payment of
Gratuity Act, 1972, which disentitles him to claim any gratuity.
16. Ld. State Counsel further argues that the petitioner is not
entitled for any payment of salary for the period 12.02.2015 to
30.09.2016, for which the petitioner has not worked at all. His Services
were terminated w.e.f. 09.01.2015 (Annexure P-9) by cancelling his period
of extension of service w.e.f. 30.09.2014 to 30.09.2016 extended vide
letter dated 07.08.2014. The petitioner had relinquished his charge on
12.01.2015 in compliance of order dated 09.01.2015 (P-9) passed by
respondent No. 1. Thus, the principle of No Work No Pay would apply
which disentitles the petitioner to claim salary for the above said period.
Further, as the services of the petitioner were the Tenure Post like a
contractual employee for a fixed period, extended from time to time on
his request, which disentitles him for any benefit of leave encashment
which is only granted to a regular employee, in lieu of unexhausted
earned leaves, during his service career.
17. It is accordingly prayed that there is no merit to the present
Writ Petition and the same deserves to be dismissed.
18. No other argument has been raised on behalf of ld. counsel
for the parties. I have heard learned counsel and perused the case file in
detail. I find merit in the submissions advanced on behalf of the petitioner.
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19. Factual matrix of the case has already been noted herein
above. It is undisputed fact on record that petitioner was initially
appointed as Principal and Director at Moti Lal Nehru School of Sports, Rai
vide office order dated 19.07.2003 (Annexure P-1). It is undisputed fact on
record that services of the petitioner have been extended since 2003 upto
09.01.2015 as follows: –
Dates Events
27.12.2005 Tenure of the petitioner was extended vide letter dated
27.12.2005 (Annexure P-3) from 3 years to 5 years.
10.10.2008 Tenure of the petitioner was further extended vide
letter dated 10.10.2008 (Annexure P-4) from 5 years to
10 years or till the age of 60 years whichever is earlier.
14.09.2011 Tenure of the petitioner was further extended vide
letter 14.09.2011 (Annexure P-5) and date of
superannuation was fixed at 30.09.2012.
11.09.2012 Tenure of the petitioner was further extended vide
letter 11.09.2012 (Annexure P-6) for a period of 1 year
i.e. till 30.09.2013.
20.09.2013 Tenure of the petitioner was further extended vide
letter dated 20.09.2013 (Annexure P-7) for a period of 1
year i.e. till 30.09.2014.
07.08.2014 Again tenure of the petitioner was further extended
vide letter dated 07.08.2014 (Annexure P-8) for a period
of 2 years i.e. till 30.09.2016.
09.01.2015 The tenure of the petitioner was ended with immediate
effect vide letter dated 09.01.2015 (Annexure P-9).
20. As such, petitioner has served continuously without break for
a period of 11 years, 2 months and 27 days. In this circumstance,
contention of ld. State Counsel that the petitioner had been appointed for
a ‘limited period’, is untenable. Moreover, neither Appointment Letter
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CWP-35347-2019 (O&M) 14 of 24
anywhere specify the ‘limited period’ for which petitioner was appointed.
Admittedly, petitioner has continued for more than 11 years. As such, by
no stretch of imagination can this period be stated to be “a limited
period”.
21. In fact, it is to be noted that vide letter dated 10.10.2008
(Annexure P-4), extension period of the petitioner was increased from 5
years to 10 years “ or till the age of 60 years whichever is earlier .” It is the
clear view of this Court that in continuing the service of the petitioner for
a period of 10 years or till the age of 60 years, itself implies that petitioner
was a regular employee, who would have retired upon attaining age of
superannuation, had his services not been illegally and abruptly
terminated. It is trite law that tenure employee can be granted extensions
only in a time bound manner and is not age bound.
22. Furthermore, petitioner was appointed against a sanctioned
post which existed prior to appointment of the petitioner and is existing
till date. It is to be noted that after termination of the petitioner, one Col.
Ashok Mor has been appointed as Principal and Director by the
respondent-Moti Lal Nehru School of Sport, Rai vide order dated
13.05.2021 (Annexure P-25). Perusal of the same reveals that said Col.
Ashok Mor who is serving on the same post as the petitioner, would be
granted pension as per the appointment order dated 13.05.2021 (P-25).
Clearly therefore, post of Principal and Director is pensionable; albeit
under the new instructions. However, no reason has been given by
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CWP-35347-2019 (O&M) 15 of 24
respondents for this discrimination; especially as petitioner had continued
even after issuance of the amended CBSE bylaws on 18.2.2014.
23. Ld. State Counsel has also not been able to deny that the
service book of the petitioner was maintained at Moti Lal Nehru School of
Sports, Rai and the record of un-availed earned leave was maintained. It
was a total of 155 days as recorded in the service book of the petitioner.
Moreover, the GPF No. HR/EDU/161045 (Annexure P-26) was allocated to
the petitioner. The GPF contribution was deducted from the petitioner till
the last day in the office. The final withdrawal was released to the
petitioner on 27.04.2015 on the request of Director, Sports and Youth
Affairs Department, letter dated 12.02.2015. GPF is not given to tenure
post employee. Reference in this regard is made to Rule 2 of the Haryana
Civil Services (General Provident Fund) Rules, 2016 in which it has been
mentioned that the Rules shall apply to all Government Employees of any
Group who entered in Government Service before 1.1.2006 and are
working on regular basis. The complete Rule 2 is reproduced
hereinbelow:-
“2. Application and effect of rules. (1) Except as otherwise
provided, these rules shall apply to all Government
employees of any Group-
(i) who entered in Government service before the 1st January,
2006 and are working on regular basis;
(ii) to whom the benefit of past service towards pension has
been allowed on their subsequent appointment by direct
recruitment or otherwise on or after 1st January, 2006; and
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(iii) any other category of Government employee to whom
the competent authority may by general or special order,
direct that these rules shall apply to them.
(2) These rules shall not apply to the following categories:-
(i) Government employees who are covered under New
Defined Contributory Pension Scheme applicable w.e.f. 1st
January, 2006;
(ii) members of the All India Services;
(iii) employees serving in a department under Haryana
Government on deputation from Centre or any other State
Government or any other source, for a limited duration.
(iv) any other category of Government employee to whom the
competent authority may by general or special order, direct
that these rules shall not apply to them.
Note 1.- The Speaker of the Legislative Assembly has agreed
under clause (3) article 187 of the Constitution that until a
law is made by the Legislature of the State under clause (2) of
article 187 of the Constitution or rules are framed by the
Governor in consultation with the Speaker of the Legislative
Assembly under clause (3) of article 187 of the Constitution of
India, these rules and amendments thereof, if any, after prior
consent of the Speaker, shall apply to the secretarial staff of
the Haryana Legislative Assembly.
Note 2.- The Chairman, Haryana Public Service Commission,
has agreed application of these rules as amended from time
to time, in the case of officers and employees of the Haryana
Public Service Commission.
Note 3. If any doubt arises as to whether these rules apply to
any person or not, the decision shall lie with the Finance
Department.
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(3) Nothing in these rules shall be deemed to have the effect
of terminating the existence of the General Provident Fund as
heretofore, or of constituting any new fund."
24. Clearly therefore, petitioner was treated as regular
Government Employee in every aspect. Moreover, the ACRs (Annexure P-
27) of the petitioner were being written by the Chief Secretary, Sports and
Youth Affairs Department on regular basis. The ACRs are never written in
the case of a tenure/ contractual employee. Thus, petitioner was a regular
Government Employee for all intents and purposes. In this scenario, it
cannot be stated that petitioner was appointed only for a limited period,
and is therefore not entitled to pensionary benefits.
25. Appointment of the petitioner cannot be taken as anything
but regular as, even as per the condition no. ‘vi’ of the original
appointment order dated 19.7.2003 (Annexure P-1), pay of the petitioner
was fixed in the scale of Rs.14300-18300 and other usual allowances
subject to Rule 7.20 of Punjab Civil Services Rules, Volume II. Rule 7.20
reads as follows: -
“(a) When a person formerly in military service obtains
employment in the Civil Department after having been
granted a military pension, he shall continue to draw his
military pension but the authority competent to fix the pay
and allowances of the post in which he is re-employed shall
have, in fixing his pay and allowances in the post in which he
is re-employed, the power to take into account the amount of
pension including such portion of it as may have been
commuted.
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(b) A military officer, departmental officer, warrant or non-
commissioned officer or soldier who is granted a pension
under military rules while he is in civil employ, shall draw such
pension while he is in employ, but the authority competent to
fix the pay and allowances of the post in civil employ, may
with effect from the date from which the pension is granted
reduce such pay and allowances with reference to such officer
or soldier by any amount not exceeding the amount of such
pension.”
26. A reading of the above shows that the authority is competent
to fix the pay and allowances of the post in which the employee is re-
employed after considering the amount of pension drawn from the
military. Furthermore, the above said rule cannot be read in isolation and
has to be read in conjunction with Rule 7.19 of Punjab CSR Volume II reads
as under:
"7.19 Except where it is otherwise expressly provided, the
rules in section II of this chapter do not apply to a military
officer, departmental officer, warrant or non commissioned
Officer or soldier, who is taken into or allowed to continue in
Civil employ after he has been granted a pension under
military rules. The claims of such a Government employee to
pay in the Civil Department are governed by Rule 7.20. His
pension for service in the Civil Department will not be
affected by his military pension."
27. A perusal of the above rule would show that pension for
service in the Civil Department will not be affected by the military
pension. A bare reading of Rule 7.19 with Rule 7.20 of the Punjab Civil
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Services Rules Volume II provides that a person who served in the Military
Services earlier has the right to get the pension from Civil Service also.
However, the authority has the right to decide the pay and allowances
after considering the amount of pension he already withdraws from the
Military Services. Under Rules 7.19 and 7.20 of Punjab CSR Vol. II, civil
pension and military pension are independent. Pay was fixed at Rs.
18,300/-explicitly excluding military pensionary benefits (Annexure P-12).
Having completed over 11 years of continuous service on a sanctioned
post with regular GPF deductions, the petitioner therefore, qualifies for
civil pensionary benefits. Even otherwise, in the Payment Order dated
23.07.2004 (Annexure P-12) issued to the petitioner it was specifically
mentioned as under: -
"The pay is given, independent of his pensionary benefits,
which he shall allow to draw."
28. Further, the impugned order is also not sustainable as,
previous CWP-10015-2017 titled as Vinay Kumar Verma vs. State of
Haryana and another filed by the petitioner for setting aside order dated
16.11.2016 (Annexure P-13) was disposed of by this Court vide order
dated 10.05.2017 (Annexure P-14) in the following manner: -
“The impugned order shows that no reasons have been given
for refusal of pension and other benefits. Therefore, without issuing
notice to opposite party, the impugned order dated 16.11.2016
(Annexure-P-13) is set aside with a direction to the Additional Chief
Secretary, Government of Haryana, Sports and Youth Welfare
Department, Chandigarh, to hear the petitioner and pass a
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reasoned and speaking order within two months from the date of
receipt of certified copy of this order.” (Emphasis added)
29. Therefore, it is clear that this Court had directed the
Additional Chief Secretary to Government of Haryana to decide the case
of the petitioner. Whereas the impugned order dated 12.7.2019 has been
passed by the Principal Secretary solely on the advice/remarks of the
Accounts Officer. Thus, the order passed by this Court had not been
complied with by the Respondents. The case of the petitioner has been
rejected only on the basis of advice received from the Account Officer of
the Motilal Nehru Sports School, Rai; and even the fact that the Principal
Secretary had earlier observed that both the Rules are contradictory are
also not taken into account while rejecting the case of the petitioner.
Moreover, Director, Sports and Youth Affairs Department in this letter is
mentioning that the case of the petitioner is pending at the level of
Principal and Director, Motilal Nehru Sports School, Rai. Therefore, it is
clear that there is non application of mind by the respondents.
30. Further, the petitioner has rendered 11 years 2 months and
27 days uninterrupted service with the Haryana Government. As such, he
is entitled for gratuity in view of the provisions contained in the Payment
of Gratuity Act, 1972. The relevant provision is reproduced as under:
" 4. Payment of Gratuity.-
(1) Gratuity shall be payable to an employee on the
termination of his employment after he has rendered
continuous service for not less than five years,- (a) on his
superannuation, or (b) on his retirement or resignation, (c) on
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his death or disablement due to accident or disease: Provided
that the completion of continuous service of five years shall
not be necessary where the termination of the employment
of any employee is due to death or disablement:
1[Provided further that in case of death of the employee,
gratuity payable to him shall be paid to his nominee or, if no
nomination has been made, to his heirs, and where any such
nominees or heirs is minor, the share of such minor, shall be
deposited with the Controlling Authority who shall invest the
same for the benefit of such minor in such bank or other
financial institution, as may be prescribed, until such minor
attains majority].
Explanation.-For the purposes of this section, disablement
means such disablement as incapacitates an employee for
the work which he was capable of performing before the
accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in
excess of six months, the employer shall pay gratuity to an
employee at the rate of fifteen days' wages based on the rate
of wages last drawn by the employee concerned: Provided
that in the case of a piece-rated employee, daily wages shall
be computed on the average of the total wages received by
him for a period of three months immediately preceding the
termination of his employment, and, for this purpose, the
wages paid for any. overtime work shall not be taken into
account: Provided further that in the case of
2[an employee who is employed in a seasonal establishment,
and who is not so employed throughout the year], the
employer shall pay the gratuity at the rate of seven days'
wages for each season.
3[Explanation- In the case of a monthly rated employee, the
fifteen days' wages shall be calculated by dividing the
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CWP-35347-2019 (O&M) 22 of 24
monthly rate of wages last drawn by him by twenty-six and
multiplying the quotient by fifteen.]
(3) The amount of gratuity payable to an employee shall not
exceed 4[ten lakh rupees].
(4) For the purpose of computing the gratuity payable to an
employee who is employed, after his disablement, on reduced
wages, his wages for the period preceding his disablement
shall be taken to be the wages received by him during that
period, and his wages for the period subsequent to his
disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an
employee to receive better terms of gratuity under any award
or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (i), (a)
the gratuity of an employee, whose services have been
terminated for any act, wilful omission or negligence causing
any damage or loss to, or destruction of, property belonging
to the 1 Subs by Act 22 of 1987, sec. 4, for the second proviso
(w.e.f. 1.2.1991). 2 Subs by Act 25 of 1984, sec. 3, for "an
employee employed n a seasonal establishment" (w.e.f.
1.7.1984). 3 Ins by Act 22 of 1987, sec. 4 (w.e.f. 24-9-1997). 4
Substituted by the Payment of Gratuity (Amendment) Act,
2010 (Act No.15 of 2010) dated 17th May, 2010 (w.e.f. 24-05-
2010). 6 The Payment of Gratuity Act, 1972 Sec. 4A employer,
shall be forfeited to the extent of the damage or loss so
caused. (b) the gratuity payable to an employee 1 [may be
wholly or partially forfeited). (i) if the services of such
employee have been terminated for his riotous or disorderly
conduct or any other act of violence on his part; or (ii) if the
services of such employee have been terminated for any act
which constitutes an offence involving moral turpitude,
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provided that such offence is committed by him in the course
of his employment."
31. Therefore, in view of the fact that petitioner has rendered
more than five years of service, the petitioner is entitled to gratuity as per
the above provision, and the facts noted here in above. Having served
continuously for 11 years, 2 months, and 27 days (exceeding the 5-year
threshold under Section 4 of the Payment of Gratuity Act, 1972), the
petitioner has an absolute statutory right to gratuity.
32. To sum up it may be stated that from the afore-noted facts, it
is clear that petitioner was a regular employee for all intents and purposes
as he has rendered service of 11 years, 2 months and 27 days on the post
of Principal and Director at MNSS, Rai which is a pre-existing, permanent,
regular, sanctioned, pensionable post rather than a temporary contractual
post. Appointment of the successor vide order dated 13.05.2021
(Annexure P-25) confirms that the post carries regular service rules, pay
fixation under Rule 52 of HCS Pay Rules, 2016. Furthermore, GPF
deductions have been made from the account of the petitioner. The
allotment of a regular GPF Account and final authorization of withdrawal
of GPF amount vide Annexure P-26, from the GPF account specifically
assigned to the petitioner, conclusively establishes regular status of the
post occupied by the petitioner. Under Rule 2 of HCS (GPF) Rules, 2016,
GPF is payable to regular employees. Even further, ACRs have been written
for the petitioner. Annexure P-27 mandated recording of the petitioner's
ACRs through the Administrative Secretary, Sports Minister, and Chief
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Minister-a process exclusively reserved for regular departmental heads. In
this circumstance, to say that petitioner is not entitled for pension, as his
appointment was for a limited period, is untenable. The respondents have
passed non-speaking, mechanical order (Annexure P-20) based strictly on
administrative remarks without applying independent mind. This directly
violates this Court's direction in CWP No. 10015 of 2017.
33. However, having given my thoughtful consideration to the
fact that petitioner has not worked for the period 12.02.2015 to
30.09.2016. As such, petitioner is not entitled for salary for the said
period. Admittedly, after termination of his services w.e.f. 09.01.2015
(Annexure P-9), the petitioner had relinquished his charge on 12.01.2015.
Thus, the principle of No Work No Pay would apply which disentitles the
petitioner to claim salary for the above said period.
34. Apropos of the discussion above, the present Writ Petition is
partly allowed. The impugned order dated 12.07.2019 (Annexure P-20) is
quashed; and the respondents are directed to release the pensionary
benefits to the petitioner i.e. pension, leave encashment, gratuity etc.
35. Needful be done within a period of 6 months from the date
of receipt of certified copy of this order, failing which petitioner would
also be entitled to interest @ 6% p.a.
36. Pending application(s) if any also stand(s) disposed of.
10.09.2026 (NIDHI GUPTA)
Divyanshi
JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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