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Madhya Pradesh High Court · body

2001 DIGILAW 329 (MP)

R. P. Sharma v. State of M. P.

2001-04-12

R.B.DIXIT, S.P.SRIVASTAVA

body2001
Judgment ( 1. ) FEELING aggrieved by the order passed by the respondent-Tribunal dismissing his application filed under Section 19 of the Administrative Tribunals Act, 1985, wherein he had prayed for issuing a direction requiring the respondents to calculate the period of service rendered by him in the judicial department from 10-9-1955 to 30-9-1961 for all the pensionary benefits in view of the condonation of the interruption in his service and a further direction requiring the respondents to grant him the encashment of 93 days earned leave along with interest at the rate of 18% per annum, he has now approached this Court seeking redress praying for the quashing of the said order. ( 2. ) WE have heard the petitioner who is present in person as well as the learned Government Advocate representing the State/contesting respondents and have carefully perused the record. ( 3. ) THE facts in brief necessary for the disposal of this case lie in a narrow compass : The petitioner was initially appointed as a Lower Division Clerk in the Office of the District and Sessions Judge, Gwalior on 10-9-1955. He served as such upto 30-9-1961, on which date he was discharged from the service due to reduction in the establishment. In the year 1962 several vacancies were advertised and the applications for the appointment as Assistant Police Prosecutor were invited and the selection for the appointment was held by the Madhya Pradesh Public Service Commission. The petitioner applied for the same and the advantage of the age relaxation available to the retrenched Government servants was granted to him. He was selected and appointed as the Assistant Police Prosecutor on 1-2-1964 and on attaining the age of superannuation retired on 30-9-1994 from the post of Joint Director of Prosecution under the Home Department. ( 4. ) THE dispute which has been raised in the present case is in regard to the question relating to the entitlement of the petitioner to have the service benefit of encashment of the earned leave for the period during which he had served as a Lower Division Clerk in the Office of the District and Sessions Judge, Gwalior. The respondent/authorities while calculating the leave period as admissible for the encashment had excluded from consideration the period of the past service from 10-9-1955 to 30-9-1961. ( 5. The respondent/authorities while calculating the leave period as admissible for the encashment had excluded from consideration the period of the past service from 10-9-1955 to 30-9-1961. ( 5. ) IT may be noticed that on an earlier occasion, the petitioner had agitated his grievance in regard to his claim for the entitlement of the earned leave and the matter was considered by the State Administrative Tribunal while disposing of the Original Application No. 535/95 filed under Section 19 of the Administrative Tribunals Act, 1985. ( 6. ) THE Tribunal vide its order dated 15-6-199s while disposing of the aforesaid application had directed the respondents to consider and decide the representation of the petitioner dated 2-2-1995 in the light of the Finance Department Circular dated 26-9-1972 by passing a speaking order. ( 7. ) PURSUANT to the aforesaid direction, the State Government had passed an order disposing of the said representation on 25-9-1998, whereunder the said representation was rejected. ( 8. ) A copy of the aforesaid order had been filed along with an application, I. A. No. 1892/2001 on 11-4-2001. ( 9. ) THE State Government in its aforesaid order had come to the conclusion that the petitioner was not entitled to the benefits claimed by him not only because when he had applied for the appointment on the post of the Assistant Public Police Prosecutor, he was not in the Government service and there was no occasion for his application for being forwarded by the Department in which he claimed to be in the service in the past but also on the ground that the petitioner could not be deemed to have joined the service from his earlier service nor had been asked to resign before joining the new service. In other words, his application was rejected holding that none of the requisite conditions contemplated under the circular issued by the Finance Department dated 26-9-1972 could be taken to have been satisfied. ( 10. ) THE aforesaid order passed by the State Government dated 25-9-1998 was challenged by the petitioner before the respondent-Tribunal vide his Original Application No. 1425/98 referred to hereinabove. ( 11. ( 10. ) THE aforesaid order passed by the State Government dated 25-9-1998 was challenged by the petitioner before the respondent-Tribunal vide his Original Application No. 1425/98 referred to hereinabove. ( 11. ) THE Tribunal vide the impugned order after considering the evidence and the materials on the record came to the conclusion that the order dated 25-7-1994 passed by the State Home Department addressed to the Director, Prosecution condoning the interruption-in-service could not come to the rescue of the petitioner as it was confined only for the purposes of pension and could not be taken to have the effect of extending the benefit in favour of the petitioner for treating the past service as a qualifying service for the purpose of any benefit other than the pensionary benefit. ( 12. ) IT may be noticed that in the year 1993 as pointed out by the petitioner, he had applied for the condonation of the interruption in service for the period from 1-10-1961 to 31-1-1964. The State Government vide its order dated 25-7-1994, had condoned the interruption-in-service for the period making it clear that the aforesaid condonation was confined to the pensionary benefit without entitling the petitioner to any other service benefit. ( 13. ) THE petitioner who has been heard in person has strenuously urged that in the facts and circumstances of the present case, his retrenchment resulting in the termination of his service on account of the reduction in the strength of the cadre could not be deemed to be or tantamount to dismissal or removal from the service which could result in the forfeiture of the service. The contention is that once the interruption in service is condoned, there could be no justification for denying the benefits available under the leave rules to the petitioner which benefit included the benefit in regard to the entitlement of the encashment of the earned leave especially when it is not disputed that the earned leave for the period in question stood credited to the leave account of the petitioner which fact is apparent from the order of the concerned authority whereunder initially the petitioner had been found entitled to encash 240 days earned leave which stood credited in his favour. It was this order which was cancelled on the strength of the circular issued by the Finance Department as is apparent from the order dated 16-1-1995, a copy of which has been filed as Annexure P-6 to the writ petition. ( 14. ) THE learned Government Advocate on the other hand has urged that the petitioner who was a retrenched employee could not be held to be entitled to any service benefit other than the pensionary benefit on the strength of the order dated 25-7-1994. In this connection, it was further urged that under the Madhya Pradesh Civil Services (Pension) Rules, 1976, the only benefit which the petitioner could be deemed to have been entitled to was the benefit in regard to the grant of the pension as envisaged under Rule 27 (2) of the aforesaid Rules in case the interruption in service was condoned by the sanctioning authority. ( 15. ) IN the present case, it is urged by the learned Government Advocate that the order dated 25-7-1994, whereunder the interruption in service had been condoned could only entitle the petitioner to add the period of his past service to the period of his leave service for the purpose of calculating the pensionary benefits. He could not, it is urged claim or taken to be entitled to any other service benefit. ( 16. ) WE have given our anxious consideration to the rival submissions. ( 17. ) THE provision contained in the Madhya Pradesh Civil Services (Pension) Rules, 1976, as contained in Section 27 thereof, clearly stipulate that an interruption in the service of a Government servant entails forfeiture of his past service except in the cases enumerated thereunder. The cases where the interruption cannot forfeit the past service include the cases where the interruption had resulted on account of the abolition of office or loss of appointment owing to reduction of establishment or due to transfer to non-qualifying service in an establishment under Government control under the orders of the competent authority. ( 18. ) THE petitioners case, it is not disputed, fell within the ambit of Rule 27 (1) (e) of the aforesaid Rules. !t is, therefore, obvious, that the interruption in service even if it had not been condoned could not result in forfeiture of his past service. ( 19. ( 18. ) THE petitioners case, it is not disputed, fell within the ambit of Rule 27 (1) (e) of the aforesaid Rules. !t is, therefore, obvious, that the interruption in service even if it had not been condoned could not result in forfeiture of his past service. ( 19. ) THE learned Government Advocate has not been able to demonstrate any statutory provision whereunder the interruption in the service as involved in the present case could have the effect of forfeiture of the past service standing to the credit of the present petitioner. ( 20. ) IT may be noticed that Rule 28 of the aforesaid Rules as it stood in the year 1976, vested the Department of the Government in consultation with the Finance Department ample jurisdiction to condone the interruption in service subject to certain conditions. One of the conditions enumerated thereunder was to the effect that the interruption must have been for the reasons beyond the control of the Government servant. ( 21. ) HOWEVER, Section 28 sub-rule (3) of the aforesaid Rules provided that the period of interruption referred to in sub-rule (1) shall not count as the qualifying service. ( 22. ) IT is in this view of the matter that while granting the condonation vide the order dated 25-7-1994 (a copy of which has been filed as Annexure P-7 to the writ petition), it had been absolutely made clear that the petitioner will not be entitled to get the period of interruption i. e. , 1-10-1961 to 31-1-1964 treated as the qualifying service. ( 23. ) HOWEVER, nothing was indicated in the said order which could lead to an inference that the period of the past service from 10-9-1955 to 30-9-1961 was also not to be treated as a qualifying service. This could not have been done as under the Rule itself it had been clearly stipulated that the interruption in service as involved in the present case was not such which could result in the forfeiture of the past service. ( 24. ) IT may further be noticed that the Rule 28 of the aforesaid Rules was amended on 20-10-1995. This could not have been done as under the Rule itself it had been clearly stipulated that the interruption in service as involved in the present case was not such which could result in the forfeiture of the past service. ( 24. ) IT may further be noticed that the Rule 28 of the aforesaid Rules was amended on 20-10-1995. Under the amended rule, in the absence of any adverse entry in the service book it was provided that an interruption between two spells of civil service rendered by a Government servant under the Government shall be treated as automatically condoned and the period of service rendered prior to the interruption will be treated as qualifying service. But the aforesaid benefit will not be extended to those employees who had resigned or dismissed or removed or the interruption in the service had occasioned on account of taking part in any strike. In that event, the period of interruption will not be treated to be a qualifying service. ( 25. ) IN the present case, the petitioner did not fall in the category of any such employee who was not entitled to get the past period of service treated as a qualifying service. In the case of the retrenched employees, the rules were clear to the effect that the past service will not result in the forfeiture and consequently, there could be no impediment for that period to be treated as a period of qualifying service. ( 26. ) IN the aforesaid view of the matter, we are of the considered opinion that in the peculiar facts and circumstances of the present case, there could be no occasion for denying the petitioner the service benefit pertaining to his past service i. e. , from 10-9-1955 to 30-9-1961 which included the service benefit in regard to the encashment of the earned leave standing to his credit for the period 10-9-1955 to 30-9-1961 which was liable to be added up to the earned leave which stood to the credit of the petitioner for the period of his subsequent service. ( 27. ) IN the result, this writ petition succeeds in part. ( 27. ) IN the result, this writ petition succeeds in part. The impugned orders passed by the respondent-Tribunal dated 18-7-2000 as well as the order passed by the State Government dated 25-9-1998 and the order passed by the Director, M. P. Public Prosecution dated 16-1-1995 are quashed with a direction to the Director, M. P. Public Prosecution, the respondent No. 3 to decide the claim of the petitioner afresh in the light of the observations made hereinabove within a period not later than 3 months from the date of the production of a certified copy of this order before him. ( 28. ) HOWEVER, considering the circumstances of the case, there shall be no order as to costs.