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2014 DIGILAW 1332 (MP)

Somprakash Arora v. State of M. P.

2014-10-14

PRAKASH SHRIVASTAVA

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Judgment Prakash Shrivastava, J.:- This writ petition has been filed by the petitioner seeking a direction to the respondents to fix the pension and pay after calculating the entire period of his service. The brief facts are that, the petitioner was appointed as Assistant Surgeon by order dated 25.9.1971 and in the year 1978, he was transferred from Raghavgarh to Shajapur and he had not chosen to join on the transferred place and remained on leave from 13.1.1978 to 23.7.1978. Petitioner's services were ultimately terminated by order dated 21.9.1978. Said termination was challenged by the petitioner in Civil Suit and the said suit was dismissed by the Trial Court, but the first appeal being F.A. No. 9.11984 was allowed by this Court by order dated 4.11.1993 holding that the termination of the petitioner was illegal and further directing that the petitioner will be deemed to be in service till date, but will not be entitled to arrears of pay till he join the Government service again as he was employed during that period. The L.P.A. against the said judgment in the first appeal was dismissed. 2. Petitioner was reinstated in service, but the period of his absence from 21.8.1978 to 20.12.1993 and from 1.7.1994 to 13.6.1995 was treated as dies-non. 3. In pursuant to orders passed by this Court in W.P. No. 8086/2003 and M.C.C. No. 235/2005, fresh order dated 20.6.2.007 was passed by the respondents treating the aforesaid period as dies-non. The order dated 20.6.2007 was challenged by the petitioner in W.P. No. 1344/2008 which was allowed by order dated 2.12.2008 setting aside the order dated 20.6.2007 and directing that period would be taken into consideration and the petitioner would be treated in continuous service even for that period while calculating the pensionary benefits to him. The petitioner had readied the age of superannuation on 30.11.2002. Thereafter, vide Annexure P/5, his pension has been fixed. 4. The grievance of the petitioner is that while fixing the pension, the service of petitioner upto 13.6.1995 only has been counted and his services subsequent thereto has not been counted and notional fixation of pay up to 2002 was not done and the calculation of pension has been done on the basis of incorrect premises. 5. 4. The grievance of the petitioner is that while fixing the pension, the service of petitioner upto 13.6.1995 only has been counted and his services subsequent thereto has not been counted and notional fixation of pay up to 2002 was not done and the calculation of pension has been done on the basis of incorrect premises. 5. Learned Counsel for the petitioner submits that the petitioner was entitled to the notional fixation of pay up to the year 2002 i.e. till he reached the age of superannuation and his pension ought to have been calculated on that basis. 6. Having heard learned Counsel for the parties and on perusal of the record, it is noticed that the petitioner had remained present in the office/Government service for the last time as on 13.6.1995. Thereafter, he had not attended the Government service. The reply filed by the respondents reveals that out of his total, tenure of 31 years of service, petitioner had rendered the services only for a period of ten years and remained absent from Government service for twenty years. Petitioner had submitted an application for voluntary retirement on 14.6.1995 and thereafter, he had stopped from attending his services. The pension has been calculated on the basis of last pay drawn by him as on 13.6.1995. There is nothing on record to show that the petitioner has drawn any pay thereafter. Therefore, at this stage, it is not open to the petitioner to come the Court with a Plea/that he is entitled for notional fixation) of his pay till he had reached the age superannuation on 30.11.2002. 7. The plea which has been raised by the petitioner that by order of this Court dated 2.12.2008, petitioner was granted continuation in service upto the year 2002, has no merit since in that writ petition, this Court was considering the period of dies-non w.e.f. 21.8.1978 to 20.12.1993 and from 1.7.1994 to 13.6.1995 and he was granted continuation in service only for that period and the said benefit has been extended to the petitioner while fixing his pension vide Annexure P/5. In these circumstances, the writ petition is devoid of any merit. Same is accordingly dismissed.