REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9682 OF 2019  (arising out of SLP (C) No. 25200 of 2015)

SURINDER NATH KESAR          ...APPELLANT(S)  

VERSUS

BOARD OF SCHOOL EDUCATION & ORS.     ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed against the judgment

dated 21.05.2015 of High Court of Punjab & Haryana by

which LPA No.1747 of 2014 filed by the appellant has

been  dismissed.   LPA  was  filed  by  the  appellant

challenging  the  judgment  of  learned  Single  Judge

dated 20.04.2013 in Civil Writ Petition No. 3037 of

2003  by  which  judgment  learned  Single  Judge  had

dismissed the writ petition filed by the appellant

praying for grant of pension by adding interruption

of service between 01.02.1988 to 03.08.1994.   

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2. Brief facts of the case necessary to be noticed

for deciding this appeal are:-

2.1 The  appellant  was  initially  appointed  by

Board of School Education, Haryana, Bhiwani

(hereinafter  referred  to  as  “Board”)  on

08.05.1970 on the post of Proof Reader.  The

appellant  due  to  his  family  circumstances

voluntarily  retired  on  01.02.1988.   The

appellant submitted a representation to the

Education  Minister  of  Haryana.   The

Education Minister, Haryana vide his letter

dated  27.03.1993  forwarded  the  application

of the appellant recommending consideration

of  his  case  for  re-appointment  on

humanitarian  ground  after  treating  the

period  of  absence  without  pay  even  if  be

Rules have to be relaxed.  The Board keeping

into  view  the  recommendation  of  the

Education  Minister  resolved  on  31.05.1994

granting sanction to reappoint the appellant

afresh.  It was observed that for giving the

benefit of past service, the opinion of the

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Government be obtained.  A fresh appointment

order  dated  25.07.1994  was  issued  to  the

appellant  for  appointment  on  the  post  of

Proof Reader in the pay-scale of Rs.1400-

2600, in pursuance of which, the appellant

joined  on  03.08.1994.   on  05.12.1994,

Secretary  of  the  Board  wrote  to  the

Secretary  of  Government  of  Haryana,

Education  Department  seeking  clarification

on benefit of past service to the appellant.

On 05.12.1994, the respondent No.4 clarified

that past service of appellant could only be

counted  for  the  purpose  of  seniority  and

pension  after  giving  the  benefit  of

continuity in service and the period of his

break be treated as leave without pay.  The

Board vide its resolution dated 31.05.1995

decided  to  condone  the  period  from

02.02.1988  to  02.08.1994  by  treating  the

same as leave without pay for continuity of

service  for  the  purpose  of  pension  and

seniority.   The Financial Commissioner &

Secretary,  Haryana  Government,  Education

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Department wrote a letter dated 27.05.1997

regarding giving the benefit of past service

to the appellant.  The letter referred to

Rule  4.23  of  Punjab  Civil  Services  Rules

Volume  II  (hereinafter  referred  to  as

“PCSR”)  which  states  that  period  of

interruption of one year can be condoned for

giving the benefit of pension and whereas in

the case of the appellant, the period of six

years  is  condoned  for  the  purpose  of

pension.  Clarification was asked for in the

above regard.  

2.2 The Board asked the appellant on 04.02.1998

to  deposit  alongwith  interest  upto

31.03.1998 amount with regard to gratuity,

provident  fund,  leave  encashment  etc.  as

received  by  him  consequent  to  voluntary

retirement.   On  18.01.1999,  the  Director,

Local Audit, Haryana wrote to the Secretary

of the Board that Rule 4.22 of Punjab Civil

Services Rules Volume II is not attracted

and relevant rule is 4.23, which rule only

authorised condonation of break of service

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upto one year duration.  The condonation can

only  be  made  by  competent  authority  in

relaxation  of  provisions  of  Rule  4.23  of

PCSR.   On  15.05.2000,  the  appellant

deposited  the  amount  with  interest  upto

31.03.1998.  The  Director,  Secondary

Education  vide  letter  dated  24.08.2000

referring to audit objections requested for

obtaining relaxation in Rule 4.23 of PCSR

from Finance Department through Commissioner

and  Secretary  Haryana  Govt.  Education

Department.   

2.3 On  24.08.2001,  Director,  Secondary

Education, Haryana wrote to the Secretary of

the  Board  that  Finance  Department  has

declined  to  accept  the  proposal  and  has

suggested that the pay of the employee be

fixed  under  Foot  Note  6  of  Rule  7.18  of

PCSR.   The  Board  asked  the  appellant  to

deposit interest upto 31.12.2001, which was

deposited  on  04.01.2002.   The  appellant

retired  on  31.05.2002.   After  retirement

certain retirement benefits were paid to the

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appellant, which were accepted with protest.

On  02.08.2002,  appellant  submitted  a

representation  to  Board  claiming  pension.

On  26.11.2002,  the  appellant  was  informed

that as per Finance Department and as per

pension rules he has already been paid the

benefits, which were due to you on account

of re-employment.          2.4 In July, 2002, the appellant had received

the  retirement  benefits  including  the

amount,  which  was  deposited  by  the

appellant.  Civil Writ Petition No.3037 of

2003  was  filed  by  the  appellant  claiming

pension and other benefits of service for

the  period  service  from  08.03.1970  to

31.01.1988 and for addition of interruption

of period from 02.02.1988 to 02.08.1994 in

his service.  Learned Single Judge referred

to Rule 4.23 of PCSR.  Learned Single Judge

took the view that as per Rule 4.23 if the

break  in  service  has  been  occasioned  on

account  of  resignation,  dismissal  or

removal,  the  period  of  interruption  of

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service cannot be condoned.  Learned Single

Judge further observed that even the order

of appointment is a fresh appointment order,

it is not possible to compute two different

spells of service as a single service.  A

review petition was filed by the appellant,

which too was rejected on 22.11.2013.  The

learned  Single  Judge  while  rejecting  the

review  petition  also  observed  that  Clause

4.22 of rules is also not attracted.  The

appellant, therefore, filed a LPA before the

Division Bench, which has been dismissed on

21.05.2015, against which, this appeal has

been filed.           

3. Learned counsel for the appellant in support of

appeal  contends  that  under  Rule  4.23  what  is  not

condonable is only in cases where the interruption

has been caused by resignation, dismissal or removal

from service or due to participation in a strike.  He

submits  that  appellant  having  voluntary  retired,

which is not covered in the definition of resignation

as  mentioned  in  Rule  4.23,  he  is  entitled  for

automatic  condonation  of  interruption  between

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02.02.1988 till 02.08.1994.  It is further submitted

that  the  Board  having  passed  resolution  for

condonation  of  the  aforesaid  period  and  in

consequence of which the appellant has deposited the

gratuity, provident fund and leave encashment amount,

which was received by him at the time of voluntary

retirement, the respondents could not have denied the

benefit  of  adding  the  interruption  period  for

computing the pension. Resolution was passed by the

Board  on  31.05.1994,  which  could  not  have  been

legally reviewed after five years.  He submits that

the appellant is entitled for the benefit of Rule

4.23 of PCSR.     

4. Learned  counsel  for  the  State  refuting  the

submission of the appellant contends that Rule 4.23

as relied by the appellant is not the relevant rule,

which  is  applicable  in  the  State  of  Haryana.

Referring to the counter affidavit, learned counsel

submits that in the counter affidavit, Annexure R-1,

the relevant clause, i.e. Rule 4.19, 4.20, 4.21, 4.22

and 4.23 as applicable in the State of Haryana has

been filed.  He submits that Rule 4.23 sub-rule (3)

provides that interruption should not be of more than

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one  year’s  duration  and  in  the  present  case,

interruption being of more than six years, Rule 4.23

does not help the appellant.  He further submits that

appellant  having  accepted  voluntary  retirement  on

01.02.1988 and having joined again on 03.08.1994 as a

fresh appointment, the earlier period cannot be added

for the purpose of pension.   

5. This Court by order dated 09.12.2019 noticed the

difference in Rules 4.22 and 4.23 of PCSR Volume II

as claimed by both the parties.  This Court directed

the learned standing counsel to produce the copy of

the gazette containing the relevant rules which were

in existence at the relevant time.  During the course

of  submissions,  learned  counsel  for  the  State  has

produced before us Punjab Civil Services Rules Volume

II as applicable in the State of Haryana.  The book

also contains the amendments, which were issued in

the Rules by the Finance Department, Haryana between

01.01.1969 to 29.02.1992.  The provisions of Rules

4.22 and 4.23 are same as have been filed as Annexure

R-1 in the counter affidavit of the respondents.  It

appears that both learned Single Judge and Division

Bench has referred to Rules 4.22 and 4.23 of Punjab

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Civil Services Rules Volume II, which were not the

rules applicable in the State of Haryana.   

6. We have no reason to doubt the authenticity of

the  book,  which  has  been  produced  by  the  learned

counsel for the State of Haryana, which contains the

provisions of Rules 4.22 and 4.23 as applicable in

the State of Haryana as Annexure R-1.  We may also

notice  the  Rules  4.22  and  4.23  of  Punjab  Civil

Services Rules Volume II as has been noticed by the

Division Bench, which is to the following effect:-

“4.22. – The authority which sanctions the pension  may  commute  retrospectively periods  of  absence  without  leave  into leave without allowances or extraordinary leave.

4.23. -  In  the  absence  of  a  specific indication to the contrary in the service record, an interruption between two spells of  service  rendered  under  the  State Government  shall  be  treated  as automatically  condoned,  and  the  pre- interruption service shall be treated as qualifying service for pension purposes, except  where  the  interruption  has  been caused  by  resignation,  dismissal  or removal  from  service  or  due  to participation in a strike, but the period of  interruption  itself  shall,  under  no circumstances, be reckoned as qualifying service for pension purposes.”

7. A perusal of the material on record including the

letter  dated  27.05.1997  written  by  Financial

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Commissioner  &  Secretary,  Haryana  Government,

Education  Department,  Chandigarh  (Annexure  P-9)

indicate that the reference has been made to Rule

4.23 providing that maximum period of interruption of

one year can be condoned.  To the same effect is

letter  dated  18.01.1999  written  by  the  Director,

Local  Audit,  Haryana,  Chandigarh  (Annexure  P-11),

paragraph 2 of which is as follows:-

“2.  The  period  between  the  date  of voluntary retirement, i.e., 1.2.88 to the date  of  fresh  reappointment  of  the incumbent on the same post in the Board i.e. 3.8.94, cannot be treated as period of absence without leave and as such rule 4.22 of CSR Vol. II is not attracted in the case.  The period rather denotes the break/interruption in service is rule 4.23 of CSR Vol. II.  Even this rule authorise condonation of Break/Interruption upto one year duration in the normal course and in the instant case, the period of break in service being six years, six months and one day.  The condonation can only be made by the competent authority in relaxation of provisions of rule 4.23 of Punjab CSR Vol. II.  Hence you are advised to act accordingly.”

8. From the above it is clear that Rule 4.23 which

is applicable to the State of Haryana is one which

has been brought on the record as Annexure R-1 in the

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counter affidavit.  Rules 4.22 and 4.23 are quoted

below:-

“4.22 The  authority  which  sanctions  the pension  may  commute  retrospectively periods  of  absence  without  leave  into leave without allowances or extraordinary leave.  

4.23 Interruption  in  service  either between  two  spells  of  permanent,  or temporary service or between a spell of temporary service and permanent service or vice  versa  in  the  case  of  an  officer retiring  on  or  after  the  5th  January, 1961,  may  be  condoned,  subject  to  the following conditions, namely:-  

(1) The interruption should have been caused  by  reasons  beyond  the control  of  Government  employee concerned.  

(2) Service preceding the interruption should not be less than five years' duration. In cases where there are two  or  more  interruptions,  the total service, pensionary benefits in respect of which shall be lost if  the  interruptions  are  not condoned  should  not  be  less  than five years.  

(3) The interruption should not be of more than one year's duration. In cases where there are two or more interruptions, the total period of all  interruptions  to  be  condoned should not exceed one year.”  

9. We may refer to a judgment of Punjab & Haryana

High Court in which it had occasion to consider Rule

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4.23 of PCS Rules as applicable in Haryana, i.e., in

Subedar Harpal Singh, Retd. Vs. State of Haryana and

Another, (1994) 1 SLR 436.  In the above case, Rule

4.23 of PCSR as appliable in case of an employee in

Haryana is quoted in paragraph 3 of the judgment.  In

the above case also, the petitioner’s case was held

not  covered  by  Rule  4.23.   paragraph  3  of  the

judgment is as follows:-

“3.   Admittedly,  the  case  of  the petitioner does not fall in any of the exception, Rule 4.23, however, deals with condonation of interruption in service and reads thus:-

“Interruption  in  service  (either between two spells of permanent, or temporary  service  or  between  a spell  of  temporary  service  and permanent service or vice versa in the case of an officer retiring on or after the 5th January, 1961, may be  condoned,  subject  to  the following conditions, namely:-  

(1) The  interruption  should  have been caused by reasons beyond the  control  of  Government employee concerned.  

(2) Service  preceding  the interruption  should  not  be less  than  five  years' duration. In cases where there are two or more interruptions, the total service, pensionary benefits in respect of which shall  be  lost  if  the interruptions are not condoned

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should not be less than five years.  

(3) The interruption should not be of  more  than  one  year's duration. In cases where there are two or more interruptions, the  total  period  of  all interruptions  to  be  condoned should not exceed one year.”  

As  the  service  of  the  petitioner preceding the interruption was less than five years, the break cannot be condoned in terms of this rule.  No other provision was brought to my notice on the basis of which the break can be condoned so as to entitle  the  petitioner  to  claim  pension after counting his previous service in the Industries Department.”

10. 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.  It was due to this reason that a letter was

written  by  the  Government  for  obtaining  relaxation

under  Rule  4.23.   In  letter  dated  24.08.2000  of

Director,  Secondary  Education  Haryana,  Chandigarh

(Annexure P-15) it was provided that relaxation be

obtained in Rule 4.23 of Punjab Civil Services Rules

Volume  II  from  Finance  Department  through

Commissioner and Secretary, Haryana Govt. Education

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Department.   In  letter  dated  24.08.2000,  following

was stated:- “As such in view of the audit objection you  are  requested  to  kindly  obtained relaxation in Rule 4.23 of Punjab CSR Vol. II  from  Finance  Department  through Commissioner and Secretary Haryana Govt. Education Department and the same may be sent to this office.”

11. 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.

It is useful to extract the said letter, which has

been brought on record as Annexure P-16, which is to

the following effect:- “From

Director, Secondary Education Haryana, Chandigarh.

To,

Secretary, Board of School Education Haryana, Bhiwani.

Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001  

Subject  :  Regarding  granting  of benefit of past service to Sh. Surinder  Nath  Kesar,  Proof Reader.

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With reference to your letter No.334- 35  dt.  31.07.2001  on  the  subject  noted above.  

In this matter the Finance Department has  declined  to  accept  the  proposal  of this Department and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of CSR Vol. II.

Sd/- Assistant Director Schools-1

for Director Secondary Education Haryana, Chandigarh.”

12. From the above, it is clear that 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.   

13. Insofar as the submission of the learned counsel

for the appellant that Board has resolved to condone

the interruption and it was only after five years,

the claim is denied by the Government, it is relevant

to notice that in the resolution of the Board dated

31.05.1994,  it  was  provided  that  regarding  giving

benefit of the past service, the opinion of the State

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Government be obtained.  Further, although the Board

passed  resolution  on  31.03.1995  to  add  the  period

subject to appellant depositing the provident fund,

gratuity and leave encashment, the amount sought to

be deposited in pursuance of the resolution of the

Board was not accepted due to certain audit objection

and  when  the  appellant  deposited  the  amount  on

15.05.2000,  the  Board  was  directed  to  obtain

relaxation in Rule 4.23 since the appellant’s case

for condonation of interruption was not covered by

Rule  4.23.   The  Government  having  subsequently

refused the relaxation in Rule 4.23, the benefit was

denied.   Insofar  as  letter  dated  27.05.1997  from

Financial Commissioner & Secretary regarding giving

the benefit of past service, it was also mentioned

that the case is not covered by Rule 4.23 PCSR Volume

II  and  clarification  was  called  from  the  Board.

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

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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, the said letter also does not come to

rescue  of  the  appellant.   Further  subsequent

correspondences  with  the  Board  and  the  Government

clearly indicate that rule, which was relevant was

Rule 4.23 as applicable in the State of Haryana and

the proposal for relaxation from Rule 4.23 was not

acceded  to  by  the  Government  as  communicated  by

Director  of  Secondary  Education  Haryana  by  letter

dated 24.08.2001.   

14. At  no  stage,  the  Government  condoned  the

interruption  between  02.02.1988  to  02.08.1994.

Although, learned Single Judge has dismissed the writ

petition,  which  judgment  has  been  affirmed  by  the

Division Bench but High Court having not considered

the relevant rule, i.e., Rule 4.23 as applicable in

the State of Haryana, which rule, we have noticed

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above, the dismissal of the writ petition has to be

sustained but on the reasons as given above.  

15. 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, we cannot find any fault 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.   

16. In view of the foregoing discussions, we are of

the view that the appellant is not entitled for any

relief in this appeal. The appeal is dismissed.

......................J.                              ( ASHOK BHUSHAN )

......................J.  New Delhi,     ( M.R. SHAH ) January 06, 2020.        

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