The High Court of Andhra Pradesh allowed a petition that challenged the tribunal's order which held that the absence period was regularized as leave without pay and should be counted in the qualifying service for the purpose of granting of pension and held that all leave during the service period for which leave salary is payable shall count as qualifying service and all leave during the service period for which salary is not payable shall not be counted as qualifying service and consequently would not be considered for grant of pension.
Brief Facts:
The respondent was granted temporary status as a cable jointer in a railway electrification project. On his retirement, he was given a service certificate stating that he had completed 22 years of service but later he came to know that he came to know that the period when he was sick had been excluded from his service and taken on leave without pay and denied pensionary benefits. The petitioners said that the period was not regularized and as per rule 14 of the Railway Service Pension Rules, 1993 ‘leave without pay’ shall not be counted for qualifying service. The tribunal held that the absence was regularized as leave without pay and should be counted in the qualifying service for the purpose of granting of pension.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the period of absence was rightly excluded from the qualifying services and after excluding the same, the respondent was not eligible for pension. He further submitted that as per Rule 36 of the Railway Service Pension Rules, 1993, all leaves during the service for which leave salary is payable and all extraordinary leave granted on medical grounds shall be counted as qualifying services even assuming the respondent was granted leave without pay, the said leave is not an extraordinary leave. He further submitted that the tribunal erred in holding that the period of absence was regularised as leave without pay and consequently should have been taken towards qualifying service.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent argued that the absence period has been regularised as Leave without pay which shall be treated as service, as per Rule 14 of the Railway Service Pension Rules, 1993, as this Rule specifically states that only unauthorized period in continuation of authorized leave of absence treated as overstay will be excluded from counting of service towards pension and in this case, the absence have been regularised as leave without pay and should not be excluded for the purpose of calculating total period service. He further submitted that the respondent put in more than 10 years of qualifying service and was eligible for a grant of pension.
Observations of the Court:
The court observed that all leave during the service period for which leave salary is payable shall count as qualifying service. Consequently, all leave during the service period for which leave salary is not payable, cannot be counted as qualifying service. The court further stated that proviso to Rule 36 is not relevant for the present case, as it relates to the case of extraordinary leave other than extraordinary leave granted on medical certificate and nothing is on record to show that the absence period was granted as extraordinary leave on medical certificate. So, it can’t count as a qualifying service for a pension.
The court held that the period of qualifying service of the 1st respondent is less than ten years. He is not eligible for a grant of pension. The court also observed that the tribunal did not consider Rule 36 and merely considered Rule 14 (x) of the Railway Service Pension Rules, 1993, directed to include the absence/leave period, without considering that the absence period though treated as leave was leave without pay; for which leave salary was not payable and consequently it would not be counted for qualifying service.
The decision of the Court:
The court allowed the petition.
Case Title: Union of India vs. S.P. Bhattacharya
Coram: Hon’ble Mr. Justice Ravi Nath Tilhari, Hon’ble Mr. Justice B.V.L.N. Chakravarthi
Case No.: Writ Petition No.9321 OF 2011
Advocate for the Petitioner: Mr. M. Srinivas
Advocate for the Respondent: Mr. J.M. Naidu
Read Judgment @LatestLaws.com
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