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2008 DIGILAW 349 (JK)

Union Of India v. Ashok Kumar Sharma

2008-09-20

MANMOHAN SARIN, SUNIL HALI

body2008
Oral: Manmohan Sarin, C.J. 1. The question arising in this appeal is as to whether the respondent is entitled to the second upgradation in the ACP scheme. The learned Single Judge found him so entitled. 2. Mr. Ajay Sharma, learned counsel for the appellants, relies on Rule 21 of SCS Pension Rules hereafter referred to as `Rules. Rule 21 essentially provides for the treatment counting of period spent on leave. In terms of the proviso to Rule 21, appointing authority while granting leave may allow the period of leave as qualifying service. Appellants contention is that since the respondent had not served on account of either being under suspension or having been dismissed from service for the periods 16.02.1984 to 31.08.1984 and 01.09.1984 to 02.10.1989. The appellants simply granted to the respondent half pay leave for 198 days and extra ordinary leave for the subsequent period from 01.09.1984 to 02.10.1989 i.e. 5 years 7 months and 27 days. It was thus not to be treated as qualifying service without specific declaration/order. 3. We may notice that the order of dismissal was set aside vide order-dated 19.09.1989, the competent authority passed the following order: - "The Competent Authority is pleased to set aside the dismissal order in respect of No.745220002 SI/ Steno Ashok Kumar passed by DIG, BSF Rajouri vide his No. D.IX/4/ESTT-1/84/I766 dated 16 Feb 84. 2. On his re-instatement individual should report to his unit i.e. 13 Bn B.SF. 3. Period of absence from duty will be converted in the leave of kind due and admissible to the Individual. 4. Mr. Sharma for Appellant next submitted that the order granting leave has not allowed the period of Extra Ordinary Leave (EOL) to be treated as qualifying service although it was permissible in terms of Rule 21. As a consequence of the above, thus period of service would not be treated as period of regular service, enabling the respondent to the second increment under the ACP Scheme. 5. To further buttress his argument, instead of Rule 21, Mr. Sharma also relics on Government of Indias decision dated 28.02.1976 where under the leave granted otherwise than on medical grounds is not to be counted for qualifying service. He further submits that the appellant have deferred the period of increment in terms of order passed on 20.10.1989, as such the respondent will not be entitled to the benefit of second ACP installment. He further submits that the appellant have deferred the period of increment in terms of order passed on 20.10.1989, as such the respondent will not be entitled to the benefit of second ACP installment. 6. We have also heard Mrs. Surinder Kour in opposition. She has drawn our attention to Rules 25 and 21 of CCS Pension Rules. Rule 25 stipulates that a dismissed government servant is entitled to count his past service as qualifying service. Further, that in terms of Rule 21, once the respondent has been granted half paid leave and extra ordinary leave, the period of such leave shall be treated as qualifying service, especially when the inability to join service had arisen out of the action of the appellants in dismissing the respondent, which stood set aside on re-instatement 7. Having considered the submissions made by counsel for the parties as also the order passed by the learned Single Judge, we are of the opinion that Rule 25 of the Rules would govern this case. It is a specific provision dealing with a government servant, who is dismissed but on his re-instatement is entitled to have the period of past service to be counted its qualifying service. Rule 21 which precedes Rule 25 in fact primarily deals with the treatment to be given to the period spent on leave. 8. There is merit in this submissions of the learned counsel for the respondent that half paid leave and extra ordinary leave had been granted to respondent. Mere failure of the appellants to have specified that the period of leave granted was to be counted as qualifying service cannot be urged against the respondent in view of the entitlement in terms of Rule 25 and the factum of half paid leave and extra ordinary leave having been granted being the admitted position. 9. We may also notice another aspect which the learned counsel for the appellants had raised. He had submitted that the increment of the respondent had been deferred in terms of the order passed on 20.10.1989 (Annexure-G), therefore, grant of the ALT benefit will create an anomaly. Learned counsel for the respondent has filed a writ petition hearing SWP No. 22/2002, wherein the respondent has averred that the period of extra ordinary leave and half paid leave was to be treated as period of service. Learned counsel for the respondent has filed a writ petition hearing SWP No. 22/2002, wherein the respondent has averred that the period of extra ordinary leave and half paid leave was to be treated as period of service. In view of this challenge and the consequence, which may flow from it the then deferment of increment cannot be urged against the respondent. We find that the view taken by the learned Single Judge is a plausible and correct view and does not call for any interference in an intra-Court appeal. The appeal is, accordingly, dismissed.