Gurcharan Dass vs State Of Punjab And Others on 23 April, 2009

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                             CHANDIGARH.

                     C.W.P. No. 10988 of 1989

                  Date of Decision: April 23, 2009

Gurcharan Dass

                                                          ...Petitioner

                                Versus

State of Punjab and others

                                                       ...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR

Present:    None for the petitioner.

            Ms. Sudeepti Sharma, DAG, Punjab,
            for the respondents.

1.    Whether Reporters of local papers may be
      allowed to see the judgment?
2.    To be referred to the Reporters or not?
3.    Whether the judgment should be reported in
      the Digest?


M.M. KUMAR, J.

The petitioner has claimed in this petition filed under

Article 226 of the Constitution that the benefit of service rendered by

him as Junior Engineer in the Punjab Housing Development Board,

Chandigarh-respondent No. 3 (for brevity, ‘PHDB’) be granted to him

from 7.10.1981 to 26.6.1986. In support of his claim, a certificate of

experience issued by the PHDB has been attached.

It is undisputed that in pursuance to an advertisement,

the petitioner was selected and appointed as Junior Engineer (Civil)

with the P.W.D. (Public Health Branch) Punjab. An appointment
C.W.P. No. 10988 of 1989 2

letter dated 8.4.1986 (P-4) was issued to him. It has come on record

that the petitioner rendered the service to the PHDB from 7.10.1981

to 26.6.1986 and then tendered his resignation with effect from

26.6.1986, as is evident from order dated 4.7.1986 (R-I). Thereafter

he joined as Junior Engineer with the PWD (Public Health Branch)

Punjab-respondent No. 1.

In order to succeed in his claim for counting of his past

service from 7.10.1981 to 26.6.1986, the petitioner is required to

satisfy the requirement of Rule 7.5 of the Punjab Civil Services

Rules, Volume-I, Part-I (for brevity, ‘the Rules’), which deals with

forfeiture of service on resignation. The relevant provision of the rule

is extracted hereunder, which reads thus:-

“7.5 (1) Resignation from a service or a post, unless it

is allowed to be withdrawn in public interest by the

appointing authority, entails forfeiture of past service.

(2) A resignation shall not entail forfeiture of

past service if it has been submitted to take up, with

proper permission, another appointment, whether

temporary or permanent, under the Government where

service qualifies for pension.

(3) Interruption in service in a case falling under

sub-rule (2), due to the two appointments being at

different stations, not exceeding the joining time

permissible under the rules of transfer, shall be covered

by grant of leave of any kind due to the Government

employee on the date of relief or by formal condonation
C.W.P. No. 10988 of 1989 3

to the extent to which the period is not covered by leave

due to him.

(4) to (6) xxx xxx xxx”

According to sub-rule (1) of Rule 7.5 of the Rules if a

civil servant tendered resignation from a service or a post it entail

forfeiture of past service unless of course it is permitted to be

withdrawn in public interest by the appointing authority. However,

sub-rule (2) of Rule 7.5 carved out an exception that if resignation is

tendered to take up, with proper permission, another appointment

under the Government where service qualifies for pension then it is

not to entail forfeiture of past service. Therefore, the cardinal

element to avoid forfeiture of service is that proper permission to take

up another appointment is required to be obtained.

In the present case, the written statement reveals that the

petitioner never applied through proper channel. In para 3 of the

written statement it has been categorically averred that the PHDB has

confirmed vide its letter dated 11.12.1989 (R-II) that the application

was not forwarded by the office of the PHDB. A perusal of the letter

dated 11.12.1989 (R-II) shows that the application of the petitioner

was never forwarded by the PHDB to the Secretary, Staff Selection

Committee, PWD (Public Health Branch) Punjab, Patiala. A perusal

of clause 16 of the appointment letter dated 8.4.1986 (R-III) shows

that if the petitioner had served in any Board or Corporation, no

benefit with regard to seniority, pay or service was to be given to him

and his pay would be Rs. 700-1200 as basic pay. Moreover, no
C.W.P. No. 10988 of 1989 4

replication to the written statement controverting the stand taken by

the respondents has been filed. In the absence of fulfillment of the

aforesaid requirement of Rule 7.5(2) of the Rules, the claim of the

petitioner cannot be accepted.

As a sequel to the above discussion, this petition fails

and the same is dismissed.

                                                  (M.M. KUMAR)
April 23, 2009                                       JUDGE

Pkapoor