Dr. Uttam Chandra Sharma [ Now S/S] vs State Of U.P. Thru Prin.Secy. ...
2018 Latest Caselaw 4217 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

? AFR
 
Court No. - 20
 
Case :- SERVICE BENCH No. - 1010 of 2007
 
Petitioner :- Dr. Uttam Chandra Sharma [ Now S/S]
 
Respondent :- State Of U.P. Thru Prin.Secy. Medical & 2 Ors.
 
Counsel for Petitioner :- Sandeep Dixit
 
Counsel for Respondent :- C.Sc..,Sanjay Bhaseen
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Sandeep Dixit, learned counsel for the petitioner and Sri Vishal Verma, learned counsel for the State-respondents.

The brief facts of the case are that the petitioner is M.D. in Anesthesiology and has worked on the post of Demonstrator in Lala Lajpatrai Medical College, Meerut from August, 1970 to September, 1971. On 1.10.1971 the petitioner was appointed on the post of Lecturer in the Department of Anesthesiology after being recommended by the U.P. Public Service Commission in Maharani Laxmi Bai Medical College, Jhansi. Thereafter, the petitioner was appointed on the post of Reader on 27.7.1973 and promoted on the post of Professor on 26.10.1986.

On 17.5.1994 the petitioner was transferred from Jhansi Medical College to Moti Lal Nehru Medical College, Allahabad on the post of Professor in the Department of Anesthesiology. When the petitioner was transferred to Allahabad Medical College his name was being sponsored by the Foreign Assignment Section, Ministry of Home Affairs, Government of India for vacancy of medical professionals with the Ministry of Health, Saudi Arabia. After necessary formalities having been completed the Director General, Medical Education and Training recommended the relieving of the petitioner vide letter dated 7.6.1994 to the Secretary, Medical Education and Training, Government of U.P. specifically mentioning that the petitioner can be granted extraordinary leave for a period of five years.

On 4.2.1995 the petitioner wrote a letter to the Principal, Medical College, Allahabad that his period of deputation at Riyad, Kingdom of Saudi Arabia of one year would be completed on 10.6.1996, so allot him house in the Medical College, Allahabad so that after joining he may bring his family to Allahabad. The aforesaid letter clearly reveals that the petitioner was willing to come back to India, more precisely, at the place of his parent posting i.e. Medical College, Allahabad. The petitioner had duly endorsed the copy of the aforesaid letter to the Director General, Medical Education and Training, U.P.

It is noted that on 18.2.1995 the Medical Directorate of Saudi Arabia wrote a letter to the Embassy of India to make necessary arrangements to permit the petitioner for one more year on deputation. However, the petitioner wrote a letter on 29.3.1995 to the Director General, Ministry of Health Affairs, Riyad requesting there in that his appointment be not further extended for another one year as he was not inclined to continue at Riyad. The petitioner endorsed this letter to the Embassy of India also. In the meantime the Embassy wrote a letter to the Joint Secretary, Medical Education, Lucknow in the month of April, 1995 for extension of one another year period of deputation for the petitioner, however, the petitioner was not aware about the aforesaid correspondence, therefore, he wrote a letter to the Principal, Medical College, Allahabad on 6.4.1995 that he would be returning back to India on 11.6.1995, therefore, he may be allotted government accommodation.

On 17.3.1996 when the petitioner completed one year of deputation, the Hospital Director of Riyad wrote letter to Secretary, Medical Education through Ministry of Health that the services of the petitioner are required for one more year and further requested that the petitioner be permitted to work one more year on deputation on extraordinary leave.

On 27.3.1996 the Embassy of India also wrote a letter to the Secretary, Medical Department, State of U.P. enclosing a letter written by the Hospital Director, Riyad, Saudi Arabia to take appropriate action. Therefore, in view of the aforesaid facts and circumstances the petitioner continued at Riyad, Saudi Arabia.

After returning from Riyad, Saudi Arabia the petitioner submitted an application in the office of Director General, Medical Education and Training, U.P. on 10.4.1997 to the effect that it should be treated as his joining and necessary orders be issued indicating his posting. When no suitable order has been passed the petitioner again submitted an application dated 8.5.1997 to the Secretary, Medical Education and Training, U.P. referring to his earlier letter submitted to D.G.M.E. on 10.4.1997 that posting orders of the petitioner be issued so that the petitioner could discharge his duties smoothly. It is noted that petitioner preferred couple of representations and some correspondences being made but no positive order has been passed by the competent authority. However, on 11.10.2000 an office order was issued by means of which the period of two years i.e. 12.6.1995 to 9.4.1997 was decided to be treated as unauthorized absence and also break in service ( Annexure no. 34 to the writ petition).

Just after receiving the aforesaid letter on 31.10.2000 the petitioner immediately preferred a representation to the Secretary, Medical Education and Training, U.P. indicating therein that a request was made by the Indian Embassy and a request was also made by the Hospital In-charge of Riyad and thus, there cannot be fault appended to the petitioner who had rendered 29 years long service, therefore, he requested that order dated 11.10.2000 be cancelled.

The petitioner thereafter preferred couple of letters but to no avail and on 7.7.2001 another office order was issued by means of which the earlier order dated 11.10.2000 was affirmed and in spite of joining being submitted by the petitioner on 10.4.1997 the period of deputation at Riyad was directed to be treated as break in service. The petitioner has however, preferred couple of representations to the competent authorities ventilating his grievance making request that in the light of the peculiar facts and circumstances of the issue the necessary orders be issued to regularize the deputation period of the petitioner rendered at Riyad, Saudi Arabia.

The Director General, Medical Education, U.P. wrote a letter dated 13.8.2004 (Annexure no. 55 to the writ petition) to the Principal Secretary, Medical Education and Training, U.P. recommending that period from 12.6.1995 to 9.4.1997 be treated as extraordinary leave and also recommend the period from 10.4.1997 to 3.7.1997 to be treated as duty period, since the petitioner had submitted his joining on 10.4.1997 at Allahabad so that the aforesaid period could be regularized and the petitioner could be paid his consequential benefits accordingly. However, no positive orders have been passed by the authorities concerned till date.

Learned counsel for the petitioner has vehemently submitted that on account of aforesaid inaction on the part of the opposite parties the petitioner has not been paid his post retiral dues as his long service of 29 years have been ignored and the petitioner was treated to have completed only three years of service. Learned counsel for the petitioner has also submitted that in view of the peculiar facts and circumstances of the issue in question the services of the petitioner so rendered by him prior to his deputation period at Riyad, Saudi Arabia cannot be ignored as the petitioner had not deliberately and intentionally overstayed at Riyad but his stay at Riyad was duly affirmed by the competent authorities of the Government of India. Further, it has been submitted that the orders dated 11.10.2000 and 7.7.2001 are wholly arbitrary and illegal whereby the period from 12.6.1995 to 30.6.1997 has been directed to be treated as absence in service though the aforesaid absence was not deliberate and intentional on the part of the petitioner rather he was very much willing to come back to India and, therefore, the petitioner cannot be denied the post retiral dues and pension on the basis of services rendered by him from 1970 to 1995 and 1997 to 2000. Learned counsel for the petitioner has further submitted that this is settled proposition of law by the Hon'ble Apex Court in catena of cases that payment of post retiral dues and pension to the employee is not a charity or bounty but is is right of the employee who had superannuated from service. He has also referred Regulation 412 of Civil Service Regulations wherein it has been categorically prescribed that when an officer is deputed out of India on duty the whole period of his absence from India counts . Regulation 412 reads as under:

"412. When an officer is deputed out of India on duty, the whole period of his absence from India counts. When an officer on leave out of India is employed, or is detained after the termination of his leave on duty, the period of such employment or detention counts."

Per contra the learned Standing Counsel for the State-respondents submitted that in the light of the Regulation 420 and 422 the period of deputation and the petitioner may not be treated in service. Regulation 420 and 422 reads herein below:

"420. An interruption in the services of an officer entails forfeiture of his past service, except in the following cases:

(a) authorized leave of absence.

(b) unauthorized absence in continuation of authorized leave of absence so long as the office of the absentee is not substantively filled; the past service of the absentee is forfeited.

(c) abolition of office or loss of appointment owing to reduction of establishment.

(d) abolition of office or loss of appointment owing to reduction of establishment.

(e) transfer to non-qualifying service in an establishment under Government control. The transfer must be made by competent authority; an officer who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a grant-in-aid school entails forfeiture.

(f) not printed."

422. Interruptions in service, either between two spells of permanent and temporary service or between a spell of temporary service and permanent service or vice versa may be condoned by the pension sanctioning authority subject to the following conditions, namely-

(1) the interruptions should have been caused by reasons beyond the control of the Government servant concerned;

(2) service preceding the interruptions should not be less than five year's duration and in cases where there are two or more such interruptions, the total of service, pensionary benefits in respect of which will be lost if the interruptions are not condoned, should not be less than five years, and

(3) interruptions should not be more than of one year's duration and in cases where there are two or more such interruptions, the total of the periods of all interruptions sought to be condoned should not exceed one year.

U.P. Government Decision (Finance Department Notification No. G-2/3060/X-6-27, dated 30th January, 1968)

1. It has been decided, in relaxation of the provision of Article 422, that in the case of a re-appointment of a retrenched person on the same or any other post, the interruption between the date of retrenchment and re-appointment should be treated as condoned but the period of interruption shall not be included in qualifying service.

2. Government has withdrawn the reference G.O.No. S-2-30-60/70-X-6-67, dated 31-1-68 as authority for the order  1 above.

The reference to G.O.dated 30-1-68 shall be deemed always to have been withdrawn so to allow the benefits to all retrenched government servants equally.

G.O. No. G-3-296/79-X-912/79,dated 30-4-79.

3. In the absence of a specific indication to the contrary in the two service records, an interruption/interruptions between two spells of service rendered under the State Government will be treated as automatically condoned and the interruption/interruptions service treated as qualifying service for pension, except where it is otherwise known that the interruption was caused by resignation, dismissed or removed from service or participation in a strike. The period of interruption itself will under no circumstance be reckoned as qualifying service for pension.

Para 4 of G.O. No. S-3-2085/X-907/76,dated December 13, 1977 and G.O. No. S-3-1912/X-1912-79, dated 24-9-79."

Learned Standing Counsel has submitted that as per the Regulation 420 of Civil Service Regulations an interruption of service of an officer entails forfeiture of past service. He has further submitted that since absence of the petitioner was within the control of the petitioner, therefore, petitioner may not request for regularization of his deputation period in the light of the Regulation 422 of the Civil Service Regulations.

I have perused the relevant correspondences enclosed with the writ petition and counter affidavit and also appreciated the rival contentions of the parties.

It is not in dispute that the petitioner was sent on deputation by the orders being issued by the competent authorities and he remained on deputation under the approval of the competent authorities of the government. However, the petitioner has admittedly preferred a letter dated 4.2.1995 (Annexure no. 6 to the writ petition) to the competent authority of the State of U.P. that he is willing to come back to his place of posting i.e. Medical College, Allahabad and he be allotted official accommodation. Not only the above the petitioner preferred another letter dated 29.3.1995 requesting the competent authority of Medical Department, Riyad, Saudi Arabia that his period of deputation may not be extended any more as he is willing to go back to India. It appears that on account of correspondences between the Embassy of Riyad, Saudi Arabia and India the petitioner was not relieved, however, the petitioner again wrote a letter dated 6.4.1995 (Annexure no. 10 to the writ petition) to the Principal, Medical College, Allahabad that he would be returning back on 11.6.1995. Further, on 17.3.1996 when the petitioner completed one year period of deputation at Riyad, Saudi Arabia, he requested the Secretary, Medical Education, U.P. that he be permitted to work for another one year on deputation on extraordinary leave as the service of the petitioner at Riyad are required for one more year and for that Government of India has made some correspondences. Not only the above on 27.3.1996 (Annexure no. 12 to the writ petition) the Embassy of India also wrote a letter to Secretary, Medical Department, U.P. enclosing letter written by Hospital Director, Riyad, saudi Arabia for taking appropriate action. Admittedly, after being relieved from the Riyad, Saudi Arabia the petitioner submitted his joining on 10.4.1997 in the office of D.G.M.E., U.P. Admittedly, the petitioner preferred couple of representations to the authorities concerned for getting his period of deputation regularized apprising those facts and circumstances which were beyond the control of the petitioner but instead of regularizing the deputation period of the petitioner, order dated 11.10.2000 and 7.7.2001 (Annexures no. 34 and 40 to the writ petition) have been issued whereby the period w.e.f. 9.6.1995 to 10.4.1997 was treated as unauthorized absence and also break in service. Not only the above the Director General, Medical Education & Training, U.P. wrote a letter dated 13.4.2004 to the Principal, Secretary, Department of Medical Education that the deputation period of the petitioner may be regularised but no suitable order has been passed.

The aforesaid facts and circumstances reveals that the competent authority of Medical Department of State of U.P. has not acted fairly in the matter of the petitioner, in as much as, the deputation period of the petitioner at Riyad, Saudi Arabia should have been treated as service period strictly in the light of Regulation 412 of Civil Service Regulations. Further, the interruption in service so alleged by the opposite parties may not be treated as interruption, considering the peculiar facts and circumstances of the issue in question, in as much as, such interruption was not within the control of the petitioner, therefore, in the light of the provisions of Regulation 422(1), I consider the aforesaid interruption in service of the petitioner was neither deliberate nor intentional and also was beyond the control of the petitioner. Therefore, the period w.e.f. 12.6.1995 to 30.6.1997 should be regularised in terms of the recommendation of the D.G.M.E., U.P. vide his letter dated 13.4.2004 as contained in Annexure no. 55 to the writ petition. Further, after regularizing the aforesaid period i.e. w.e.f. 12.6.1995 to 30.6.1997 the petitioner would be entitled for his post retiral benefits treating him continuous in service w.e.f. 1970 to 2000.

In view of the facts and circumstances stated herein above, I am of the considered view that the orders dated 11.10.2000 (Annexure no. 34 to the writ petition) and order dated 7.7.2001 (Annexure no. 40 to the writ petition) are arbitrary, unwarranted and violative of Article 14 and 21 of the Constitution of India, therefore, the same are liable to be quashed and are accordingly hereby quashed.

The Principal Secretary, Department of Medical Education, Government of U.P. is directed to pass appropriate orders regularizing the services of the petitioner w.e.f. 12.6.1995 to 9.4.1997 and w.e.f. 10.4.1997 to 3.7.1997 as per the recommendation of Director General, Medical Education and Training, U.P.  vide letter dated 13.8.2004 which is Annexure no. 55 to the writ petition ignoring the orders dated 11.10.2000 and 7.7.2001 and pass appropriate orders in respect of payment of post retiral benefits treating the petitioner continuous in service with effect from his initial date of appointment till the date of his superannuation with expedition, say within a period of three months from the date of production of the certified copy of this order and provide all other consequential benefits to the petitioner accordingly.

Writ petition is Allowed.

No order as to costs.

Order Date :- 11.12.2018

Om

[Rajesh Singh Chauhan, J.]