Bombay High Court
Smt.Shakuntala Wd/O. Ramchandra ... vs Zilla Parishad,Bhandara & Ors on 4 January, 2018
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1857 of 2002
1] Smt. Shakuntala wd/o Ramchandra Nishane,
aged 50 years, Occ.-Household, r/o-Panjara,
Post-Mundi Kota, Tahsil Tirora, District Gondia.
2] Shankar Ramchandra Nishane,
aged 27 years, Occ.-Nil, Education : M.A. in Economics,
r/o.-Panjara, Post Mundi Kota, Tahsil Tirora,
District Gondia. .... Petitioners.
-Versus-
1] The Zilla Parishad, Bhandara,
through its Chief Executive Officer, Bhandara,
2] Panchayat Samiti, Lakhandur in Bhandara District
through its Block Development Officer. .... Respondents.
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Shri D.T. Harinkhede, Adv for petitioners.
Mrs. M.P. Munshi, Adv for respondents.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 04th
January, 2018.
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.]
Heard learned Advocate Shri Harinkhede for the petitioners and
learned Advocate Mrs. Munshi for the respondents.
2] The facts show that deceased Shri R.Z. Nishane was working as
Assistant Teacher in primary school of Zilla Parishad. The documents on record
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produced by the petitioners show that he joined services on 27-08-1966 and at
primary school of Donad on 27-06-1990. While working in that school, he
remained absent from 14-03-1991 to 19-09-1996.
3] He reported for duty on 18-09-1996 and was permitted to join on
20-09-1996. After that date, he worked up to 18-07-1998 and proceeded on
casual leave of two days. He was on casual leave on 20-07-1998 and
21-07-1998 and expired on 22-07-1998.
4] The petitioners claim that considering the past service from 1966 till
1991 and thereafter period of about 2 years, the pension needs to be extended
to his widow and dependents.
5] Learned Advocate for the petitioners states that during pendency of
matter, in fact, the family pension in terms of Rule 116 (2)(a) of the Maharashtra
Civil Services (Pension) Rules, 1982 [for short, 'the Rules, 1982'] has been paid
to his widow. He claims that earlier service should also be computed as
qualifying service and accordingly pension should be released with other
terminal benefits.
6] Learned Advocate Mrs. Munshi appearing for Zilla Parishad states
that she is not aware about the present position. However, the deceased
employee was unauthorizedly absent and because of mandate of Rule 116 of
the Rules, 1982, the period of absence from service being above five years, the
deceased lost his right on previous service. She submits that when he was taken
back he produced a fitness certificate where the Medical Board did not opine
anything on past illness. She further submits that even before this Court the
petitioners have not placed on record any medical record or other similar
documents to explain the reasons for his absence.
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7] We have perused the papers which show that the deceased was
examined by Medical Board on 11-07-1996 and declared fit for joining duty on
that date. The Medical Board consisting of three experts then recorded that no
opinion on past illness or leave taken can be given.
8] It is, in this backdrop, that he reported for duties by joining report
and was permitted to join in September, 1996, he has thereafter worked up to
18-07-1998, proceeded on casual leave for two days and on third day he expired.
9] Even, in this petition, the petitioners i.e. his widow and son have
not given any justification for absence of deceased between 13-03-1991 to
17-09-1996. Though, the petition has remained pending before this Court for
more than 15 years, again no steps have been taken to amend it and to bring
such reasons on record.
10] Rule 16 of the Maharashtra Civil Services (Leave) Rules, 1981, is
on the subject of maximum amount of continuous leave. It stipulates that no
Government servant can be granted leave of any kind for a continuous period
exceeding five years. Here the period of absence is five years, six months and
four days. The rule also gives some discretion to the Government and in
exceptional circumstances the State Government can permit even longer leave.
However, no such exceptional circumstance has been brought on record.
11] The respondents have relied upon the provisions of Rule 47(1) of
Rules, 1982. As per Rule 47 said interruption results in forfeiture of past
service. The interruption does not result in forfeiture of past service, if it is on
account of authorized leave of absence or suspension or transfer or joining time.
Even unauthorized absence, if it is in continuation of authorized leave of absence
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does not result in interruption. Here the petitioners have not pointed out that the
absence of deceased employee from 13-03-1991 and onwards was in
continuation of authorized leave.
12] In this situation, we cannot find fault with the respondents in
denying pension for past service which stands forfeited.
13] Rule 116 of Rules, 1982 is about family pension. Sub-rule 2(a)
allows pension to the Government servant who dies after completion of one year
of continuous service. Here deceased employee has died after completion of
service of about two years after his joining again on 20-09-1996. Accordingly, in
terms of this obligation, the respondents may have released family pension.
14] In this situation, taking overall view of the matter, we do not find
any case made out for issuing directions to the respondents to recognize service
from 27-08-1966 till 20-09-1996 as qualifying service. We, in this situation,
dismiss the writ petition. Rule stands discharged. No costs.
JUDGE JUDGE
Deshmukh
