Rajwant Sandhu, Member (A):— This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:—
(i) The impugned order dated 27.01.2015 (Annexure A-17) and clarification dated 30.10.2014 (Annexure A-19) be quashed and set aside in the interest of justice.
(ii) It be declared that any subsequent clarification cannot supersede the statutory provision incorporated in the Rules and cannot be applied retrospectively to the disadvantage of the applicant.
(iii) It be declared that once the matter has been remitted back to the respondents to reconsider applicant's claim in the light of categorical observations made in the order dated 16.10.2014, the respondents cannot enlarge the scope of the same and are bound to act within permitted parameters.
(iv) The respondents be directed to take back the applicant in service by granting further extension in service beyond the date of superannuation i.e. 30.12.2013 for one and a half year in the light of 20.09.2013, granting extension in service beyond the age of superannuation for two years to those employees who attain the age of superannuation on or after 31.10.2012 and Chandigarh Administration Notification dated 07.12.2012, dated 20.05.2013, dated 31.07.2013 and dated 19.12.2013.
(v) The applicant be held entitled to all consequential benefits/reliefs in the interest of justice.
2. This is the second round of litigation in this matter. The applicant who was employed as Sr. Assistant with the UT Administration, was due to retire from government service w.e.f. 30.06.2013. He submitted his option for extension in service and vide office order dated 08.04.2013, respondent No. 3 granted extension in service for six months beyond the date of superannuation (Annexure A-6). The applicant requested for further extension of service for one year. However, respondent No. 3 vide order dated 30.12.2013, disallowed further extension in view of his past service record (Annexure A-3). The applicant filed OA No. 060/00416/2014 and vide order dated 16.10.2014, the matter was remitted to the respondents to reconsider the applicant's claim in the light of the observations made in the order dated 16.10.2014 (Annexure A-16). However, the respondent No. 3 passed the impugned order dated 27.01.2015 (Annexure A-17) rejecting the claim of the applicant for grant of further extension in service beyond the age of superannuation by placing reliance upon the Punjab Government Clarification letter No. 22/2/2012-1/FP2/159 dated 30.10.2014 (Annexure A-19). The applicant was asked vide order dated 11.03.2015 to vacate the Government House No. 12/1606, Sector 23, Chandigarh allotted to him and pay the penal rent towards the license fee (Annexure A-18). Hence this OA.
3. In the grounds for relief it has, interalia, been stated as follows:—
(i) The action of respondent No. 3 in applying the Punjab Government clarification letter No. 22/2/2012-1/FP2/159 dated 30.10.2014 itself is arbitrary and illegal as it cannot be applied retrospectively to the disadvantage of the applicant.
(ii) Any subsequent clarification and administrative instruction etc. cannot supersede the statutory provision incorporated in the Rules and cannot be said to have sanctity in the eyes of law. The Court would consider and appreciate that as per Notification dated 31.01.2012, the corresponding service conditions/rules of Punjab Government employees are applicable to the UT employees like the applicant and as such, the Punjab Civil Services Rules are applicable to him. Therefore, once the Government of Punjab vide Notification dated 08.10.2012 amended the Rule 3.26 clauses (a) and (b) of the Punjab Civil Services Rules, Volume I, Part I, by providing that the service of a Government employee or a class of Government employees, maybe extended beyond the date of retirement for a period of not exceeding two years, after getting an option from the concerned Government employees, then until and unless the Rules are amended by any subsequent clarification, the same cannot supersede the statutory provision incorporated in the Rules and cannot be said to have force and sanctity in the eyes of law.
(iii) The respondent No. 3 did not consider and appreciate that it was after noticing that parties are ad idem and upon the consensual agreement reached between parties and without going into the merits of the case, the Tribunal disposed of the OA in the same terms as in the case of K.L. Sodhi in OA No. 854/CH/2013 decided on 27.08.2014 wherein after considering the entire instructions, the OA was allowed in favour of the applicant therein.
(iv) At the time of getting extension in service for six months i.e. upto 30.12.2013 vide order dated 08.04.2013, also the charge sheet issued on 12.09.2011 was pending at the stage of consideration of comments of the concerned Tehsildar pursuant to reply submitted by applicant. Therefore, once the past service record of applicant already stands considered and applicant already stands granted extension in service for six months, then the applicant deserves to be granted further extension in service also. Furthermore, during the extended period w.e.f. 30.06.2013 to 31.12.2013, there is nothing adverse against the applicant.
4. In the written statement filed on behalf of the respondents, it has been stated that although the applicant was granted extension in service earlier beyond the date of his superannuation for six months w.e.f. 30.06.2013 as per earlier instruction circulated by the Department of Personnel, Chandigarh Administration bearing No. 34/55-IH(7)-2012/23059 dated 07.12.2012, but as per stipulation laid down in letter No. 34/55-IH(7)-2013/13967 dated 31.07.2013, no further extension in service was granted to the applicant as his past record was not found good for the reason that he was charge sheeted under Rule 8 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as applicable to the employees of the UT Chandigarh vide Memo dated 24.02.2004 (Annexure R-1) and was awarded punishment of stoppage of three annual increments without cumulative effect vide order dated bearing Endorsement No. 36355/E-1600 dated 01.12.2005 which was reduced to stoppage of two increments without cumulative effect in appeal vide order dated 24.08.2007 (Annexure R-3). The applicant was again issued charge sheet under Rule 5 read with Rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as applicable to the employees of the UT Chandigarh vide Memo dated 11.06.2009 (Annexure R-4) and was issued warning vide Memo dated 01.12.2009 (Annexure R-5). He was issued another charge sheet (Annexure R-6) under Rule 5(i) to (iv) read with Rule 10(1)(b) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 as applicable to the employees of UT Chandigarh vide Memo dated 12.09.2011. Therefore, on considering the past record of the applicant, his request for grant of extension in service for one year beyond the date of superannuation was rejected and conveyed to the applicant vide orders bearing Endorsement No. 36839/E-1600 dated 30.12.2013 properly. Accordingly, the applicant was retired/relieved from service w.e.f. 31.12.2013. The reason for not allowing his request for further extension in service beyond the date of his superannuation was clearly mentioned in the retirement order being Endorsement No. 36839/E-1600 dated 30.12.2013.
5. It is further stated that the Tribunal vide order dated 16.10.2014, set aside the said order dated 30.12.2013 and remitted the matter for reconsideration of the claim for extension in service beyond the age of superannuation. Accordingly, the applicant was asked to appear for personal hearing before the competent authority. The applicant appeared and was heard in detail on 27.01.2015. The Punjab Government, Finance Department (Finance Personnel-2 Branch) vide circular letter No. 22/2/2012-3/FP2/159 dated 30.10.2014 had conveyed that extension in service cannot be given to the officers/officials against whom any type of departmental inquiry/criminal case or vigilance case is pending. The Department of Personnel, Chandigarh Administration, vide circular dated 24.11.2014, adopted the circular dated 30.10.2014 of the Government of Punjab. Accordingly, the matter was examined and request of the applicant for grant of further extension rejected as departmental proceedings were found pending against him. The applicant was relieved and retired from Government service w.e.f. 31.12.2013 after expiry of six months extension period granted beyond the age of his superannuation i.e. 58 years.
6. In the rejoinder filed on behalf of the applicant, the applicant reiterated the facts and grounds taken in the OA.
7. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant reiterated the content of the OA and the grounds taken therein. He pressed that the applicant was granted six months extension in service upto December, 2013 and nothing had happened during the period from 1.7.2013 onwards that should have prompted the respondents to deny the applicant further extension of service for one year. He also referred to the judgement in the case of one Sh. K.L. Sodhi in OA No. 854/CH/2013 and stated that since vide order dated 16.10.2014 (Annexure A-16), the case of the applicant was to be decided keeping in view the decision in K.L. Sodhi's case, the respondents had wrongly rejected the claim of the applicant for extension in service. He also stated that the clarification regarding grant of extension of one year of service to the employees of Government of Punjab issued vide letter dated 30.10.2014 (Annexure A-19) had prospective effect and could not be applied to the case of the applicant.
8. Learned counsel for the respondents stated that when the matter was reconsidered by the Administration, as per directions of the CAT in order passed in OA No. 060/00416/2014, the Circular dated 30.10.2014 was in operation and the case of the applicant had been decided keeping in view these instructions. He also stated that the applicant was facing disciplinary proceedings at the time of his normal date of superannuation and although six months extension was initially given to him, the Administration had decided that further extension in service was not merited in the case of the applicant. Learned counsel also referred to para 2 of Notification dated 08.10.2012 (Annexure A-13) that reads as under:—
‘2. In the Punjab Civil Services Rules, Volume-I, Part I in Rule 3.26, for clauses (a) and (b), the following clauses shall be substituted, namely:—
‘3.26 (a) Except as otherwise provided in this rule, the date of retirement of a Government employee other than a Group D Government employee shall be the date on which he attains the age of 58 years and the date of retirement of a Group D Government employee shall be the date on which he attains the age of 60 years.
Provided that if the State Government is of the opinion that it is necessary or expedient in public interest so to do, the service of a Government employee or a class of Government employees, may be extended beyond the date of retirement for a period not exceeding two years, after getting an option from the concerned Government employee or the Government employees, as the case may be.
Provided further that a Government employee must not be retained in service after the period of service extended under this clause, except in exceptional circumstances with the previous sanction of the competent authority in public interest and for reasons to be recorded in writing.
…………………………………………….’
He stated that since the applicant had a tainted service record and was also facing disciplinary proceedings at the time of his superannuation, it was not in the public interest to grant extension in service to such an employee. Even though extension had initially been allowed for a period of six months, the respondent department had the discretion to deny further extension to the applicant. Learned counsel also cited Hon'ble Punjab and Haryana High Court judgement in Romesh Garg v. State of Punjab in CWP Nos. 3826 and 5215 of 2015 decided on 24.04.2015 wherein the Hon'ble Court had observed as follows:—
‘Before parting with the judgement, the issue of discrimination as raised by the counsel for the petitioners, is also required to be dealt with. It is submitted that one employee namely Shri Sham Lal Kamboj, working as an Assistant Divisional Fire Officer, Municipal Corporation, SAS Nagar, Mohali, has been granted extension in service, even when disciplinary proceedings for major penalty are pending against him. This plea on the part of the petitioners has come up for the first time in replication, but even if this fact is correct, two wrongs do not make a right and the issue of discrimination cannot be allowed to be raised qua a wrong. If the respondents have acted against their own policy, it would not clothe the petitioners with a right to pray for directions to the respondents to perpetuate such wrong………’
9. We have given our careful consideration to the matter. From the material on record, it is clear that the applicant did not have a clean and satisfactory service record. Although the Punjab Government has been changing its guidelines regarding conditions relating to grant of extension in service to its employees, but these instructions are of an executive nature while it is the Punjab Civil Services Rules that would be relevant to the matter and from a reading of Rule 3.26 as per amendment dated 08.10.2012 (reproduced in para 8 above), it is the discretion of the administration to allow extension in service to its employees beyond date of superannuation and such extensions are to be allowed if ‘necessary or expedient in public interest so to do’. It cannot be in the public interest to allow extension in service to employees with a tainted service record and the Hon'ble Jurisdictional High Court has also expounded its views accordingly from time to time. The claim of the applicant for parity of treatment with Sh. K.L. Sodhi (supra) is hence misconceived.
10. The applicant's normal date of superannuation was 30.06.2013 and even if he had got the two years extension, the same would have been over on 30.06.2015. The applicant has worked till 31.12.2013 and not thereafter since the extension in service beyond 31.12.2013 was not allowed in his favour. As per the directions of the CAT in OA No. 060/00416/2014, the matter has been reconsidered by the respondent administration and the impugned order has been issued. We also see no merit in the contention advanced by learned counsel for the applicant that the circular of October, 2014 would have only prospective effect and would not apply in the case of the applicant. The fact remains that when the matter regarding extension in service of the applicant was considered by the administration, the circular of October, 2014 was in force and his claim for extension in service has rightly been rejected in the light of these instructions. Hence, we conclude that there is no merit in this OA and the same is rejected. No costs.