BIDHI CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner joined the Punjab Police on 7th of January, 1961 in the Radio Telephony (RT) cadre, and was ultimately promoted as Head Constable on 16.4.1964. The R.T. cadre was abolished on the creation of the Border Security Force and the petitioner and other similarly situated employees were asked to opt for service in B.S.F. as the R.T. net work had been taken over by the new Organization. The petitioner, however, expressed his unwillingness to serve in the B.S.F. and was accordingly served a notice/termination order Annexure P-2 dated 21st of July, 1967, informing him that on the expiry of two months his services would no longer be re- quired. The petitioner challenged this order by filing Civil Writ Petition No. 2144 of 1967 in this Court and obtained an interim order of stay therein. This petition was however dismissed vide order dated 19th April, 1968. The petitioner was thereafter reappointed as a temporary Constable Radio Operator (Trainee) in the State Police vide order dated 23.10.1971 Annexure P-4. The petitioner joined service on 11.1.1971 and was promoted as Head Constable with effect from 1.5.1973 and has ultimately retired as a Sub Inspector during the pendency of the present petition. Before his retirement the petitioner moved several representations before the authorities that his previous service from 7th of January, 1961 upto 19th April, 1968 (as he had obtained an interim stay from this Court upto that date) be counted as his qualifying service for pension. The representations filed by the petitioner were, however, rejected vide order Annexure P1 dated 7th July, 1997 on the ground that the break in service under the State Government could not be condoned under Rule 4.23 and 5.2 of the Punjab Civil Service Rules (Vol. II) (hereinafter referred to as the Rules) as he had refused to join service under the B.S.F. The order Annexure P-1 has been impugned in the present petition.

(2.) Mr. Toor, the learned counsel appearing for the petitioner has placed railance on Rule 4.23 of the Rules as amended by notification dated 26.9.1985 appended as Annexure P-11 to the petition to contend that an interruption between two spells of service was to be treated as qualifying service for pension purposes except where the interruption had been caused by resignation, dismissal or removal from service or due to participation in a strike though the period of interruption itself was under no circumstances, to be reckoned as qualifying service for pension purposes.He has in this connection urged that the period of the petitioner's service under the Punjab Government form 7th of January, 1961 to 19th April, 1968 was to be treated as qualifying service for the purposes of pension and the petitioner was thus entitled to refixation of his pension and other retiral benefits.

(3.) Mr. Anil Sharma, the learned Deputy Advocate General, appearing for the State of Punjab has, however, pointed out that the petitioner had come to this Court after 26 years of his re-employment under the State Government and the notification amending the Rules and making the petitioner eligible for retiral benefits now claimed by him, had also been issued way back on 25.11.1985. He has also urged that the petitioner on his refusal to join service under the B.S.F. and as such he could not claim the benefit of Rule 4.23. He has finally referred to Note 8 to Rule 4.23 to contend that the benefit of previous service could be obtained only at the time of rejoining the service and not at the time of retirement and for this additional reason the petitioner's claim- being belated, was not tenable.