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Madhya Pradesh High Court · body

2003 DIGILAW 797 (MP)

P. C. Basu v. State of M. P.

2003-06-30

BHAWANI SINGH, SHANTANU KEMKAR

body2003
JUDGMENT Shantanu Kemkar, J. 1. Through this Writ Petition under Articles 226/227 of the Constitution of India, the petitioner is assailing the order dated 3-7-2001 passed by the M.P. State Administrative Tribunal, Bhopal Bench in Original Application 3079/1991. Brief facts, necessary for deciding his petition, may be mentioned: The petitioner started his career as Airman (Mechanical) in the Royal Indian Air Force from 25-7-1941. After his discharge from the Air Force on 10-12-1946, he was appointed as Lower Division Teacher in S.N.G. Higher Secondary School, Hoshangabad in July, 1948. The School was taken over by the State Government on 18-7-1972. Attaining the age of 62 years, petitioner retired from service on 30-4-1978. 2. The Air Force service of the petitioner from 25-7-1941 to 10-12-1947 was not counted by the State Government for the purpose of pension. Likewise, the period from July, 1948 to 30-4-1978, during which he was employee in the S.N.G. Higher Secondary School, Hoshangabad, was also not counted for pensionary benefits by the State Government. 3. The petitioner filed Original Application 3079/91 before the State Administrative Tribunal, M.P. Bhopal Bench (hereinafter SAT) seeking directions against the State Government for counting the said period for the purpose of the pension. The original application was dismissed by the SAT vide order dated 29-4-1999. Against which the petitioner filed Writ Petition 569/2000 before this Court. The petition was disposed of on 7-2-2000 with directions to the petitioner to file Review Petition before the SAT. The petitioner accordingly filed Review Petition before the SAT. The review was allowed and the Original Application was heard on merits again. 4. The SAT partly allowed the Original Application 3079/91 vide its order dated 3-7-2001 and directed the respondents to count the period from 3-7-1952 to 30-4-1978 during which he was regular employee of S.N.G. Higher Secondary School, Hoshangabad for the purpose of pensionary benefits. The SAT, however, held that the petitioner is not entitled, for counting of the period from July, 1948 to 2-7-1952 by holding that during this period his appointment was not as a regular employee and every year there was break in service during summer vacations. The tenure of Air Force service from 25-7-1941 to 10-12-1946 was disallowed on the ground that it was not followed without interruption by appointment to a pensionable post. 5. Aggrieved by the aforesaid order dated 3-7-2001 of the SAT, petitioner has filed the present petition. 6. The tenure of Air Force service from 25-7-1941 to 10-12-1946 was disallowed on the ground that it was not followed without interruption by appointment to a pensionable post. 5. Aggrieved by the aforesaid order dated 3-7-2001 of the SAT, petitioner has filed the present petition. 6. Heard Shri V.S. Shroti, learned Senior Counsel for the petitioner and Shri Sanjay Agrawal, learned counsel for the State. Record perused. 7. The first contention of the learned senior counsel for the petitioner, Shri Shroti, is that the SAT has illegally disallowed the petitioner's claim for counting his military service from 25-7-1941 to 10-12-1946 on the ground that it was not followed without interruption by appointment to a pensionable post, therefore, he is not entitled to the benefit under Rule 19 of the M.P. Civil Services Pension Rules 1976 (hereinafter 'Rules'). He further submitted that the SAT has wrongly held that under Rule 19(v) of the Rules, there is no provision for making representation for condonation of break in service. The learned counsel for petitioner further submitted that contrary to the documents placed on record, the finding of tribunal that the petitioner did not make any representation to the State Government for condoning the period of break in service between the war service and the civil service is vitiated. 8. In our opinion, the submission of the learned counsel for the petitioner has got force. The SAT has misinterpreted Rule 19 of the Rules. The SAT has also over-looked the representations submitted by the petitioner for condonation of the period. The petitioner's representations for condonation of his break in service were on record. Rule 19(v) of the Rules clearly enables State Government to condone the break in service exceeding one year but not exceeding three years with rider that the period of break in service shall not be counted for pension. Therefore, the Tribunal has committed illegality in rejecting the claim of this period by holding that Rule 19(v) does not enable the Government servant to apply for condonation. Perusal of Rule 19(v) clearly shows that the State Government employee can apply for condonation of break in service and the State Government can also condone period if the same is more than one year but less than three years. Admittedly, petitioner's break in service was less than 3 years. Perusal of Rule 19(v) clearly shows that the State Government employee can apply for condonation of break in service and the State Government can also condone period if the same is more than one year but less than three years. Admittedly, petitioner's break in service was less than 3 years. Accordingly, we direct the respondents to consider the various representations (Annexures P/6, P/7, P/8 and P/14) submitted by the petitioner in that behalf and pass orders in terms of Rule 19 (v) of the Rules within a period of four months hereof. 9. Next submission of the counsel for petitioner is with regard to the period from July, 1948 to July, 1952, during which he was in temporary service of the S.N.G. Higher Secondary School, Hoshangabad. In our opinion, even though there are breaks in the service every year during summer vacations the said period deserves to be counted for the purpose of pensionary benefits because breaks, during summer vacations, are illegal and this period is to be counted in service. It is held that the petitioner is entitled to claim continuous service for the purpose of counting the period for pension. Reliance can be placed on the decision of Apex Court in Ratanlal and others vs. State of Haryana and others, AIR 1987 SC 478 . The Apex Court in para 3 has said : We strongly deprecate the policy of the State Government under which 'ad hoc' teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These 'ad hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules. 10. It is also pertinent to mention that vide order dated 17-1-1977 (Annexure P/9) the State has extended similar benefit to Smt. S.M. Tiroudhi who used to be given breaks during summer vacations and this period was treated to be continuous service for calculating the pension. Thus, since the State Government has granted the benefit to a similarly situated employee, the petitioner cannot be treated differently. We, therefore, hold that the petitioner is entitled to count his service from July, 1948 to July, 1952 for the purpose of pension. Thus, since the State Government has granted the benefit to a similarly situated employee, the petitioner cannot be treated differently. We, therefore, hold that the petitioner is entitled to count his service from July, 1948 to July, 1952 for the purpose of pension. We, accordingly, allow the petition with following directions to the respondents: (a) The respondents shall count, the military service of the petitioner from 25-7-1941 to 10-12-1946 for pension by condoning the break in service between 10-12-1946 to July, 1948, the period after his discharge from the Air Force till he was appointed as Lower Division Teacher in S.N.G. Higher Secondary School, Hoshangabad, in terms of Rule 19(v) of the Rules; Further, (b) Count the period of petitioner's service rendered in S.N.G. Higher Secondary School, Hoshangabad from July, 1948 to July, 1952 for the purposes of pensionary benefits and; And, (c) The petitioner be granted arrears of pension on the basis of re-fixation after computation of the entire period as aforesaid within a period of six months hereof failing which the petitioner shall be entitled to claim interest @ 9% per annum. With the aforesaid directions, the writ petition is allowed with no order as to costs.