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2015 DIGILAW 1528 (GAU)

Union of India v. P. Mulureedharan

2015-12-15

P.K.SAIKIA, T.VAIPHEI

body2015
ORDER P.K. Saikia, J. - This appeal is directed against the order dated 25.06.2014, rendered by the learned Single Judge in WP(C) No. 6478/2006 allowing the petition. 2. We have heard Mr. S.C. Keyal, learned ASGI appearing for Union of India and Mr. U.K. Nair, learned counsel appearing for the respondent herein. 3. The facts, projected by the petitioner in WP(C) No. 6478/2006 (sole respondent herein, who would be referred to as petitioner hereinafter) are that the petitioner had been working as Rifle Man in Assam Rifles. On 22.01.2002, the petitioner preferred an application seeking voluntary retirement from service since he had reportedly completed the required length of qualifying service necessary for going on voluntary retirement. 4. His petition was accepted on 08.03.2006 and he was permitted to go on voluntary retirement w.e.f. 01.09.2006. A Discharge Certificate was also issued releasing him from service. It may be stated here that at that point of time, the period of service, rendered by the petitioner, was recorded as 21 years 6 months and 20 days. 5. However, subsequently, it appears to the respondent authorities in WP(C) No. 6478/2006 (appellants herein, who would be referred to as respondent authorities hereinafter) that the petitioner did not complete 20 years of qualifying service necessary for a public servant to be eligible to go on voluntary retirement. Therefore, the respondent authorities issued notice to the petitioner to resume duty immediately so as to discharge his official functions. 6. The petitioner instead of responding to the direction of the respondent authorities, had approached this Court by way of WP(C) No. 6478/2006 seeking the following reliefs:- "In the premises aforesaid, it is most respectfully prayed that Your Lordships may be pleased to admit this petition, issue Rule, calling upon the respondent authorities to show cause as to why a writ in the nature of Certiorari and/or Mandamus and/or any other writ order or direction shall not be issued and upon hearing the parties on the cause or causes that may be shown and on perusal of the records be pleased to grant to the petitioner the following relief/reliefs: (i) To issue a writ in the nature of certiorari cancelling the alleged order, cancelling the sanction allowing the petitioner to proceed on Voluntary Retirement. (ii) To issue a writ in the nature of mandamus directing the respondent authorities to allow the petitioner to go on Voluntary Retirement in terms of the sanction granted by the authorities allowing him to proceed him on Voluntary Retirement. (iii) To direct the respondent authorities to release to the petitioner all the dues as receivable by him, on being permitted to proceed on voluntary retirement without attaching any further condition thereto. (iv) And/or pass any other order/orders as to your Lordships may deem fit and proper". 7. During the pendency of the writ petition, respondent authorities initiated a proceeding against the petitioner and held that the petitioner remained absent from duty in an unauthorised way and as such, he was declared to be a deserter on 25.08.2006. However, on being informed about such development, this Court passed an interim order on 15.06.2007 preventing continuation of disciplinary proceeding against the petitioner. But in spite of such an order, respondent authorities appeared to have proceeded with the disciplinary proceeding against the petitioner. 8. Contending that such conducts on the part of respondent authorities are highly illegal, arbitrary and unwarranted, Mr. U.K.Nair, learned counsel appearing for the petitioner submitted before the learned Single Judge in WP(C) No. 6478/2006 that the petitioner was granted leave for 1838 days and in due course, such leave was also regularised as extra ordinary leave. It has also been contended that it was not reflected in the relevant column of the Leave Accounts of the petitioner that the period of such leave would be treated as non-qualifying service as required under the service law. 9. Referring to Rule 21 of the Central Civil Services (Pension) Rules, 1972, (in short, CCS Rules, 1972) it has been submitted that when leave is granted on medical ground, such leave is required to be taken into account in counting qualifying service of a Govt. employee in whose favour such leave is granted. 10. Referring to Government of India's decision, appended to the Rule 21 of CCS Rules, 1972, it has also been contended that if extraordinary leave is taken on ground other than the medical ground, then such period of leave needs to be treated as non-qualifying service and in that event, a definite entry is to be made in the service records of the employee concerned to that effect. More importantly, such entries regarding the service being qualifying or otherwise are required to be made simultaneously with the granting of leave. 11. Referring to the note of Government of India, appended to the Rule 21 of the CCS Rules, 1972, it has also been contended that when the ground on which the extraordinary leave is granted is not reflected in the service records of the employee concerned simultaneously with the granting of leave, the authority concerned may still rectify the omission during the period allowed for preparatory action which means a period from two years in advance of the retirement date up to eight months before retirement. 12. The above note further says that at the end of the period aforementioned, no further enquiry into past events should be undertaken. The above requirement makes it more than clear that at the end of the preparatory action, the authority concerned cannot look into the past service record of employee concerned. However, such requirement was blatantly violated by the respondent authorities in case of the petitioner which makes the impugned order and all subsequent actions taken thereafter enormously illegal. 13. In that connection, it has been submitted that petitioner was granted the extraordinary leave of 1838 days presumably on medical ground and in terms of Rule 21 of the CCS (Pension) Rules, 1972, such leave is required to be counted in computing the qualifying service of the petitioner. Once such extraordinary leave of 1838 days is counted towards the qualifying service of the petitioner, it would be found that on the date when the petitioner had applied for voluntary retirement, he had to his credit 21 years 6 months and 20 days of qualifying service. 14. The counsel for the petitioner further submits that if one assumes for the sake of argument that the extraordinary leave granted to the petitioner was not accorded on medical ground but on other grounds, then in view of the notes of Government of India, appended to the Rule 21 of the CCS Rules, 1972, the nature of such leave, viz qualifying or otherwise, is to be reflected in the leave account of the petitioner and same needs to be done simultaneously with the granting of leave. 15. But in case of petitioner, same was not done. 15. But in case of petitioner, same was not done. More importantly, nature of such leave, viz qualifying or otherwise, was not reflected in the leave account of the petitioner even during the period when such rectification in the leave account of Govt. servant is permissible under the service Law. In view of the above, it needs to be concluded that the period of extraordinary leave of 1838 days, so granted to the petitioner needs to be treated as qualifying service. 16. In that connection, it has been contended that the respondent authorities had not only accepted the application, filed by the petitioner seeking to go on voluntary retirement but issued discharge certificate releasing him from service as well. Despite above being the situation, the respondent authorities looked into the past service record of the petitioner after allowing him to go on voluntary retirement and concluded that the period of extraordinary leave granted to the petitioner needs to be treated as non-qualifying service. Such highly illegal conduct, on the part of the State respondents, now, only requires this court to set aside the impugned order in the proceeding in question--------contends Mr. U.K. Nair, the learned counsel for the petitioner. 17. Refuting such arguments from the side of petitioner, Mr. S.C. Keyal, learned ASGI appearing for the Union of India, contends that there are materials on record to show that the leave, availed of by the petitioner, was extraordinary leave but same was not granted on medical ground and as such, the authority concerned can revoke the discharge order when it is found that the petitioner did not have the requisite length of qualifying service to go on voluntary retirement. 18. In support of such contention, learned ASGI has relied on the decision of the Apex Court in the case of Management of Indian Bank and Anr. v. G. Ramachandran and Ors., reported in AIR 2008 SC 959 to contend that extraordinary leave cannot be considered in counting the qualifying service. Being so, on the date on which the petitioner had applied for voluntary retirement, he did not have the required length of qualifying service to go on voluntary retirement. 19. Therefore, the conduct of the respondent authorities in calling him to resume duty cannot be faulted. In view of the above, he prayed for dismissal of aforesaid proceeding initiated by the petitioner. 20. 19. Therefore, the conduct of the respondent authorities in calling him to resume duty cannot be faulted. In view of the above, he prayed for dismissal of aforesaid proceeding initiated by the petitioner. 20. On considering both the submissions of the parties, the learned Single Judge allowed the petition. Relevant part of the judgment is reproduced below:- "Mr. U.K.Nair, counsel for the petitioner, submits that the calculation of the period of service rendered by the petitioner on the part of the respondents is incorrect. The petitioner was on extra ordinary leave on medical ground for 1838 days and the said period was regularised as medical leave. The extraordinary leave whatever taken by the petitioner, according to pension Rules, shall have to be reckoned as period of qualifying service and if it is so taken, the petitioner would be eligible for pension since he would have been competed 21 years 6 months and 20 days. The submissions made by Mr. Nair are supported by materials on record and the provisions of law relating to pension. In the first place, it is found that the respondents committed grave error in directing the petitioner to come and join duty. If the petitioner was not eligible to any pension, the respondents should have issued notice and revoked the pension order. There was no need on the part of the respondents to have called upon the petitioner to come and join duty. Besides, it is also to be seen that there appears to be a violation of the interim order, which attracts contempt. In view of the reasons and discussions made above, the writ petition is allowed. The petitioner would be entitled to the benefit of pension in terms of the discharge certificate, dated 03.08.2006. Three months' time is granted to the respondents for compliance of this order." 21. Before proceeding further, we find it necessary to have a look at the Rules which the petitioner has referred to and which we have taken note of in paragraphs before, particularly paragraphs 9, 10 and 11. 22. For ready reference, those Rules are reproduced below:- "21. Three months' time is granted to the respondents for compliance of this order." 21. Before proceeding further, we find it necessary to have a look at the Rules which the petitioner has referred to and which we have taken note of in paragraphs before, particularly paragraphs 9, 10 and 11. 22. For ready reference, those Rules are reproduced below:- "21. Counting of periods spent on leave All leave during service for which leave salary is payable and all extraordinary leave granted on medical certificate shall count as qualifying service : Provided that in the case of extraordinary leave other than extraordinary leave granted on medical certificate, the Appointing Authority may, at the time of granting such leave, allow the period of that leave to count as qualifying service if such leave is granted to a Government servant - (i) omitted. (ii) due to his inability to join or rejoin duty on account of civil commotion ; or (iii) for prosecuting higher scientific and technical studies. Government of India's Decisions (1) Need for making proper entries for treatment of extraordinary leave for pensionary benefits .---- Under Rule 21 of the CCS (Pension) Rules, 1972, extraordinary leave granted on medical certificate qualifies for pension. The Appointing Authority may, at the time of granting extraordinary leave, also allow the period of such leave to count as qualifying for pension if the leave is granted to a Government servant --- (i) due to his inability to join or rejoin duty on account of civil commotion, or (ii) for prosecuting higher technical and scientific studies. Extraordinary leave taken on other grounds is treated as non-qualifying and, therefore a definite entry is to be made in the service records to that effect. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event. Even where this is not done, it should still be possible to rectify the omission during the period allowed for preparatory action, i.e. from two years in advance of the retirement date up to eight months before retirement. At the end of that period, however (i.e., when the actual preparation of the pension papers is taken in hand), no further enquiry into past events or check of past records should be undertaken. Specific entries in the service records regarding non-qualifying periods will be taken note of and such periods excluded from the service. At the end of that period, however (i.e., when the actual preparation of the pension papers is taken in hand), no further enquiry into past events or check of past records should be undertaken. Specific entries in the service records regarding non-qualifying periods will be taken note of and such periods excluded from the service. All spells of extraordinary leave not covered by such specific entries will be deemed to be qualifying service." 23. A perusal of Rule 21 of CCS Rules, 1972 together with notes of Govt. of India, appended to such Rule, reveals that extraordinary leave on medical ground is required to be taken into account in counting qualifying service of a Govt. employee. The note, appended to the Rule, also requires the authority concerned to record in the leave account of the concerned employee that such extraordinary leave would be treated as non-qualifying service if such extra ordinary leave was granted on grounds other than on medical ground and same needs to be done simultaneously with the granting of leave. 24. But if for one reason or the other, if it is not recorded as contemplated in the note to the Rule 21 of CCS Rules, 1972, the authority concerned can still rectify the omission but same needs to be done before the end of period allowed for preparatory action. However, under no circumstance, such rectification can be done at the end of period allowed for preparatory action. 25. It is worth noting that the petitioner vehemently contends that the Rule 21 of CCS Rules, 1972 as well as the requirements, so specified in notes of Govt. of India, appended to aforesaid Rule, was honoured only in violation and not in observance. In order to ascertain such allegation, the Service Records of the petitioner was called for and same was also produced before the court by learned ASGI. 26. On perusal of the Service Records of the petitioner, it is found that petitioner had availed an extra ordinary leave of 1838 days. We have also found that the leave record does not disclose that such leave was granted on medical ground. Being so, under the arrangements, so made in the note aforesaid, the respondent authorities were to have made an entry to the effect in the service record that such leave would not be treated as qualifying service. We have also found that the leave record does not disclose that such leave was granted on medical ground. Being so, under the arrangements, so made in the note aforesaid, the respondent authorities were to have made an entry to the effect in the service record that such leave would not be treated as qualifying service. But same was not done, not even before the end of the period allowed for preparatory action. 27. In such a situation, in our considered opinion, the extraordinary leave of 1838 days, availed of by the petitioner, needs to be treated as qualifying service and therefore, same needs to be taken into account in calculating the total qualifying service of the petitioner. On doing so, one would find that on the date on which petitioner had filed application seeking voluntary retirement, he had to his credit 21 years, 6 months and 20 days of qualifying service. 28. We have already found that past records can be looked into only up to certain period and not thereafter. More importantly, we have also found that under no circumstance, past record of a Govt. employee can be looked into after his retirement. A careful perusal of the Rule 21 of CCS Rules, 1972 as well as the requirements, so specified in notes of Govt. of India, appended to aforesaid Rules makes it abundantly clear. 29. But then, in the present case, the service record of the petitioner was looked into even after his retirement from service and thereafter, the respondent authorities came to the conclusion that the petitioner did not have requisite length of qualifying service to go on voluntary retirement and thereafter issued the order which is impugned in the proceeding in question. These are clear testimonies to the fact that the order in question is totally untenable. 30. We have considered the decision relied on by the respondents and found that in the aforesaid case a bank employee was involved and his service conditions were governed by a distinct set of rules which clearly say that extraordinary leave cannot be taken into account in counting his qualifying service of a bank employee. But in the present case, the service conditions are governed by CCS Rules 1972 which clearly demonstrates that under certain circumstances, the extraordinary leave may be taken into account in counting the qualifying service of a Govt servant. But in the present case, the service conditions are governed by CCS Rules 1972 which clearly demonstrates that under certain circumstances, the extraordinary leave may be taken into account in counting the qualifying service of a Govt servant. Being so, the decision relied on is found to be wholly inapplicable to the case in hand. 31. In view of the above, it is found that the order cancelling the sanction allowing the petitioner to proceed on Voluntary Retirement and all other consequent orders, rendered by respondent authorities are found to be unsustainable in law and having quashed those orders and having granted the reliefs sought for by the petitioner (sole respondent herein), learned Single Judge committed no wrong whatsoever. 32. Resultantly, this appeal is found devoid of merit and same is accordingly, dismissed.