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Judgment
Nidhi Gupta, J.
Present writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the impugned order dated 10.08.2016 (Annexure P-9) passed by respondent No.3 vide which the respondents-department has denied the claim of the petitioner for pensionary benefits; with a further prayer to modify the pension payment order dated 15.04.2015 (Annexure P-6) and release all pensionary benefits of the petitioner as per his service record, which is more than 20 years. It is further prayed that order dated 17.06.2014 (Annexure P-4) vide which the petitioner stands retired on account of medical ground, which is against “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, be set aside.
It is, inter alia, submitted by learned counsel for the petitioner that husband of the petitioner was appointed as Driver in the Haryana Roadways on 27.04.1989. While he was posted as Driver in Sonepat Depot, he absented himself
from service due to unavoidable reasons w.e.f 02.09.1999 to 04.12.1999. As such, he was charge-sheeted under Rule 7 of the Punishment and Appeal, Rules 1987. Vide order dated 26.06.2003, the Punishing Authority forfeited his past service.
In the year 2003, the husband of the petitioner was again absent from duty w.e.f 09.09.2003 to 30.11.2003 as the petitioner was seriously unwell. On the basis of above said absence, the husband of the petitioner was charge-sheeted vide memo dated 03.12.2003; and was subsequently dismissed from service vide order dated 24.06.2008 passed by the General Manager, Haryana Roadways, Sonepat (Depot). Subsequently in Appeal, the Joint Transport Commissioner, Haryana took a lenient view of the matter keeping in view the length of service of the petitioner of 19 years and reinstated him in the Service on minimum pay, vide order dated 16.01.2012 (Annexure P-1). However, vide the said order, petitioner was held not entitled for any benefit for the period that he remained out of service from 25.06.2008 to 17.01.2012. Vide order dated 08.02.2012 (Annexure P-2) petitioner was re-instated in service w.e.f.18.01.2012. Thereafter, when the petitioner’s husband attained age of 55 years on 30.04.2014, he was medically examined and found unfit for driving heavy vehicle and was retired from service vide order dated 17.06.2014 (Annexure P-4). Ld. Counsel contends that even the said retirement of her husband is contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995.
Learned counsel for the petitioner submits that husband of the petitioner was not granted pensionary benefits. As such, he had submitted a representation. In response to which, he received a communication dated 20.02.2015 (Annexure P-5) informing that he had not put in the total qualifying
service of 04 years, 06 months and 29 days to make him eligible for pension as per Civil Service Rules, Vol. II, Pension Rule 6.16(1).
It is submitted that thereafter the petitioner had received pension payment order dated 15.04.2015 (Annexure P-6) from the Accountant General, Haryana in which date of appointment of the petitioner is mentioned as 01.05.2003. However, the same on the face of it is wrong because husband of the petitioner was appointed on 27.04.1989 and his service had been terminated vide order dated 24.06.2008. Thereafter, he was reinstated in appeal vide order dated 16.01.2012. Learned counsel contends that in such circumstances his previous service cannot be forfeited for pensionary benefits. Accordingly, the husband of the petitioner had sent legal notice dated 16.05.2015 and 25.05.2015 (Annexure P-7). The husband of the petitioner was called for personal hearing on 02.11.2015. However, unfortunately he met with an accident and ultimately died on 26.12.2015. Subsequently, respondent No.3 rejected claim of the petitioner vide impugned order dated 10.08.2016 (Annexure P-9) without granting other pensionary benefits like gratuity, leave encashment etc.
Learned counsel contends that as husband of the petitioner had been reinstated in appeal vide order dated 16.01.2012 (Annexure P-1), his services are required to be counted from date of initial appointment in the year 1989. As such he was entitled to entire pensionary benefits, which have been denied to the petitioner vide impugned order dated 10.08.2016. He, accordingly, prays that the present writ petitioner be allowed and the impugned order be set aside; and further a direction be issued to the respondent to modify the pension order payment order dated 15.04.2015 (Annexure P-6) and release all pensionary benefits of the husband of the petitioner as per his service record which is more than 20 years.
Per contra, learned State counsel has vehemently opposed the submission made on behalf of the petitioner and has pointed out that vide order dated 16.01.2012 (Annexure P-1), husband of the petitioner was found guilty of all the charges and was found to be habitually absent from duty. However, a lenient view was taken, and he was reinstated in service on minimum pay-scale. Moreover, an assurance was taken from husband of the petitioner that he will not repeat his misconduct again.
It is further submitted that in any event, even if service of the husband of the petitioner is calculated from the year 1989, he would be entitled to minimum pension of Rs.2460/-; whereas pension of Rs.3500/- fixed as per Rule 6.16(2) of CSR Vol.II is already being paid. Therefore, the present writ petition be dismissed.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions advanced on behalf of the petitioner.
Vide order dated 16.01.2012 (Annexure P-1), husband of the petitioner was re--instated in the following manner: -
“After going through the case file and perusal of record, I have come to the conclusion that the appellant is found guilty by Inquiry Officer during departmental enquiry. Perusal of service record of said employee reveals that he is habitual to remain absent. The date of appointment of said appellant is 27.4.1989. Hence the said employee has worked in this department for a period of about 19 years. The appellant assured during the course of personal hearing that in case he is awarded last opportunity to continue in service, he will never commit any negligence towards duty in future. Hence, keeping in view the assurance given by said employee and having lenient view towards his family, do hereby amend the order dated 26.6.2008, passed by the General Manager, Sonepat and award last opportunity
of service to Sh. Satyawan, Driver No. 204/93 and passed order to reinstate him in service on minimum pay scale. A condition is also imposed in this order that in case the appellant repeated his previous conduct, he himself will become liable for punishment. Except this, he will not be entitled to any financial benefit for the period of his absence from duty.”
(Emphasis added)
A bare perusal of the above shows that a lenient view of the matter was taken and husband of petitioner was re-instated in minimum pay-scale with the condition that he will not be entitled to any financial benefit for the period of his absence from duty. The statutory order dated 16.01.2012, which had attained finality, provided forfeiture of past service, whereby the re-instatement was on the minimum of pay scale for the post. Therefore, for the purpose for counting the period for pension, the employee was not entitled for service rendered prior to the order. As such, Service of husband of the petitioner cannot be taken from date of initial appointment in 1989.
Furthermore, Rule 3.17(a)(e) of the Punjab Civil Service Rules, Vol.II, provides that any interruption in service caused by wilful absence from duty and unauthorised absence without leave, will entail forfeiture of past service. The relevant provision under Rule 3.17 A(e) is reproduced as below: -
"An interruption in the service of a Government employee caused by wilful absence from duty and unauthorized absence without leave will as hitherto entail forfeiture of past service." Clearly therefore, even as per statutory provision past service of the husband of the petitioner stands forfeited.
It is also relevant to note that respondents have pointed out that even after passing of order of reinstatement dated 16.01.2012 (Annexure P-1) till the passing of the order of retirement dated 17.06.2014, the husband of the petitioner
had remained wilfully absent for 172 days, thereby totalling the period of wilful absent from duty to 1097 days.
It is further relevant to note that the husband of the petitioner had moved an application dated 18.04.2014 (Annexure R-1) before the Competent Authority seeking voluntary retirement by submitting that the application may be treated as notice of 3 months before the retirement, and that the voluntary retirement will be effective w.e.f 18.07.2014. The Date of Birth of the employee was 30.04.1959 and therefore, he was completing 55 years of age which is the age for compulsory retirement under Rule 3.26 (e) of Vol. I Part-I of Punjab Civil Services Rules.
The respondents No.1 to 4 in their written statement dated 18.06.2019 have pointed out that the employee had submitted that he was examined by the Board of Doctors; and Civil Surgeon, Sonipat vide letter No. 2014/40 dated 16.05.2014(Annexure P-3), forwarded vide letter dated 10.06.2014, had observed that the employee was not fit for retaining into service beyond 55 years of age and was unfit for driving. Consequent thereto, the Competent Authority passed an order dated 17.06.2014 (Annexure P-4)whereby he was retired from service. As such, prayer of the petitioner for quashing of order dated 17.6.2014 is misconceived.
Even otherwise, prayer of the petitioner for quashing of order dated 17.06.2014, in view of Section 47 of Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 is of no help as the said Act of 1995 stands repealed by Section 102(1) of the Rights of Persons with Disabilities Act, 2016. As per the 2016 Act, ‘persons with disability’ is defined in Section 2(r) as a person suffering from not less than 40% of disability as certified by a medical authority. However, vide medical certificate dated 16.05.2014
submitted by husband of the petitioner, he was only declared not fit for driving heavy vehicle, but he was not a person with disability. As such he is not entitled for any benefit under the provisions of Disability Act, 1995.
It is also pertinent to note that neither the husband of the petitioner nor the petitioner have challenged the order dated 16.6.2012 (Annexure P-1) at any point in time. In fact, husband of the petitioner had previously filed a civil writ petition bearing No. CWP-21098-2015, titled as “Satyawan Vs. State of Haryana and Others” laying challenge to the orders dated 20.02.2015, 15.04.2015 and 17.06.2014. However, even in the said writ petition, order dated 16.01.2012 had not been challenged. The aforesaid CWP No.21098-2015 was disposed of by this Court vide order dated 05.10.2015 with a direction to decide the legal notice by passing a speaking order; pursuant to which the present impugned order dated 10.08.2016 (Annexure P-9) came to be passed.
It is imperative to note that vide order dated 20.02.2015 (challenged by husband of the petitioner in CWP-21098-2015), claim of the husband of the petitioner for pension had been declined by the respondents as he had not rendered the qualifying service for pension. As such, the present writ petition is not maintainable.
In any event, the petitioner has not disputed the assertions made by the respondents vide affidavit dated 20.08.2024, wherein it is stated as follows:-
“In view of the above, it is submitted that the minimum pension of the petitioners husband which is calculated from the year 1989 to 17.06.2014 is Rs. 2460/-, for the period from 05.12.1999 to 17.06.2014 is Rs. 1318/- and for the period 01.05.2003 to 17.06.2014 is Rs. 790/-. It is further submitted that if the pension of the petitioners husband would be considered as per the claim by the petitioner i.e. since 1989, the pension of the petitioners husband is
calculated Rs. 2460/- per month which is less than the minimum pension of Rs.3500/- i.e. fixed as per Rule 6.16(2) of CSR Volume-II.
3.That the pension of the petitioner is fixed as per the Rule No 34 (3) of HCS Rule (Pension) 2016 and the same has now been enhanced to minimum Rs.9000/- per month. Therefore, the petitioner is getting Rs. 9000/- per month as per aforesaid rule.”
Learned counsel for the petitioner is unable to dispute or controvert the abovesaid factual position. In view of the same, no ground is made out for interference in the impugned order.
Accordingly, the present Writ Petition stands dismissed.
Pending application(s) if any also stand(s) disposed of.