Balveer Singh Ponia vs State Of U.P. And 3 Others
2015 Latest Caselaw 518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 RESERVED
 

 
Court No. - 37
 

 
                                                                                                            
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 241 of 2015
 

 

 
Appellant :- Balveer Singh Ponia
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Shivendra Singh Bhadauria,Birendra Singh
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mukhtar Ahmad,J.

Heard learned counsel for the appellant and learned counsel who appeared for the respondents.

Challenge in this intra Court appeal is to the judgment and order dated 21.1.2015, whereby the Writ Petition bearing No.Writ A 2280 of 2015 (Balveer Singh Ponia Vs.State of U.P.and 3 others) filed by the appellant has been dismissed by the learned Single Judge.

The facts giving rise to this appeal are that the petitioner-appellant joined as Assistant Teacher in Naveen School, Basai Khurd Bazar, Block Chaumuha, District Mathura on 26.9.1997. He applied for Medical Leave from 8.10.1997 to 1.3.2002 alongwith relevant papers and  joined the institution on 2.3.2002. Respondent No. 3 granted medical leave to the appellant for the aforesaid period but without pay.

The copy of the order dated 1.3.2002, appended as Annexure-4 to this appeal is substacted below-

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After attaining the superannuation and availing the benefit of annual session the appellant-petitioner retired from service on 30.6.2011 and applied for post retiral benefits such as G.P.F., Gratuity, leave encashment and pension etc. but his pension was denied on the ground that time period of petitioner service was found less than ten years which is minimum period of service for providing pension. The appellant-petitioner then applied for salary from the period 26.9.1997 to 21.7.1998, placing reliance on certificate issued by Block Development Officer on the ground that his salary for the period was not provided to him though he remained on duty throughout this period.

It reveals that appellant fled writ petition bearing No.. Writ A 35633 of 2014, Balveer Singh Ponia Vs.State of U.P. and others which was finally disposed of by this Court vide its judgment and order dated 14.7.2014 with the following observations-

" The petitioner has preferred this writ petition for direction upon the respondents for payment of his salary from 26.9.1997 to 31.7.1998 and the said period be included in the tenure of his service. The petitioner has not disclosed the reason as to why he has approached this Court at this belated stage.

However, it is expected that competent authority will consider the cause of the petitioner and shall pass appropriate order expeditiously in accordance with law.

With the aforesaid observations and order, writ petition is finally disposed of. "

Thereafter appellant made representation which has been disposed of by the Basic Shiksha Adhikari, Mathura respondent no. 3 on 22.10.2014. Relevant portion of the same is subtracted below-

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Feeling aggrieved with the aforesaid order another writ petition i.e.Writ A No. 2280 of 2015 was preferred which has also  been dismissed by this Court vide its judgment and order dated 21.1.2015, impugned in this appeal.

Learned counsel for the appellant submitted that apparently the order dated 1.3.2002 passed by the B.S.A. sanctioning leave, without pay has been passed in utter contravention of the Principles of Natural Justice and is not fair as the appellant had continuously performed his duties from 26.9.1997 to 31.7.1998 in the Primary Schools. Therefore, he is entitled for the salary of that period which should also be included in his service record. On this strength it is further submitted that in fact length of service of the appellant is more than ten years but he has been denied pension by observing that his service is less than ten years. It is further submitted that learned Single Judge has not considered all these aspects and arrived at a wrong conclusion, thus the order passed by him requires interference.

Per contra learned counsel for the respondents argued that appellant himself had applied for medical leave from 8.10.1997 to 1.3.2002, which was granted to him on 1.3.2002 without pay. Therefore, payment of salary of the intervening period commencing from 26.9.1997 to 31.7.1998, is unsustainable hence the learned Writ Court has rightly denied the same. It has also been argued that excluding period of medical leave without pay the length of service of the appellant is less than ten years, so he has rightly been denied pension, as minimum period for providing pension is ten years of service.

We have considered the rival submissions made on behalf of the parties.

Admittedly the appellant himself had applied and granted leave without pay for the period from 8.10.1997 to 1.3.2002,  hence the prayer for salary for the period from 26.9.1997 to 31.7.1998,  is unsustainable and devoid of merits and further the order dated 1.3.2002 is still un-challenged and has attained finality.

Now the second limb of the argument remains for consideration, as to whether the period of sanctioned medical leave without pay for the period commencing 8.10.1997 to 1.3.2002 is to be included in the length of service or not?

Admittedly, the appellant joined service on 26.9.1997 and after only 12 days of service he went on long leave from 8.10.1997 to 1.3.2002 i.e. four years, 4 months and 23 days. It is also not disputed that leave was sanctioned to him. On 1.3.2002, as leave without pay and not as a medical leave. The petitioner never challenged that order which has attained finality. Since no other leave was permissible so the leave aforesaid was extraordinary leave (Asadharan Avkash) as it is provided in Financial Hand Book thus-

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Aforesaid provision clearly shows that salary for the period of leave shall not be payable and that period shall not be counted for the purpose of determining pension. Admittedly after excluding the period of leave without pay, service of appellant is not ten years.

In view of the aforesaid discussions and perusal of the order impugned, we are of the opinion that learned Single Judge has considered all the aspects of the matter and there appears to be no illegality or perversity in the judgment and order impugned so it is not justifiably open for any interference. The appeal is dismissed.

No orders as to cost.

Order Date :- 15.05.2015

M.A.Ansari