D.T.C. And Anr. vs Satya Pal Singh And Anr.
2006 Latest Caselaw 1327 Del

JUDGMENT

Mukul Mudgal J.

CM No. 10779/2006 (delay)

Allowed subject to all just exceptions. Delay in filing the appeal stands condoned.

CM stands disposed of.

LPA.No. 1737/06 & CM 10778/06

1. This appeal challenges the order of the learned Single Judge dated March 24, 2006. The only question involved in this present appeal is whether the Respondent No. 1 had put in ten years of qualifying service so as to qualify for pension in terms of a judgment of the Division Bench of this Court in LPA No. 33/1998 which admittedly holds the field. The relevant portion of the said judgment in LPA.No. 33/1998 reads as follows In view of the above, the appeals stand disposed of with the aforementioned directions and observations making it clear that an employee having less than 20 years of qualifying service but 10 years or more is also entitled to pension on opting for voluntary retirement under the Scheme announced by DTC; DTC is not entitled to charge interest over the excess amount of gratuity; DTC is entitled to charge interest on the amount of employer's share of provident fund; employees resigning from service after rendering qualifying service will also be entitled to pension; those who had opted but did not submit or fill-up forms are also entitled to pension but those who had retired after 3.8.1981 and before 27.11.1992 and did not opt are not entitled to pension....

2. The plea of the learned Counsel for the appellant, Shri J.N. Aggarwal, is that the learned Single Judge was not right in extending the benefit of the said judgment in LPA No. 33/1998 to the Respondent No. 1 herein. He submits that although the Respondent No. 1 had been in the employment of the appellant from 5.12.1982 till 30.6.1993, i.e. for more than 10 years and six months, more than 1 year 10 months was spent on leave without pay and, this period could not be counted for computing ''qualifying service'' for the purpose of pension. In support of the above plea, the learned Counsel for the appellant has relied upon the definition of `qualifying service' as given in Rule 3(1)(q) of of Central Civil Services Pension Rules 1972 (in short the `CCS Rules') which reads as follows 3(1)(q) Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules

The said rule defines qualifying service to mean service rendered while on duty ''or otherwise''. In our view the words ''or otherwise'' would envisage the period of leave as well. Proceeding on authorised or permissible leave is also part of the terms and conditions of service. Use of words `or otherwise' does not rule out the reckoning of the period spent as leave without pay for the purpose of qualifying service.

3. Mr. Agarwal next refers to Rule 21.

Rule 21 of the CCS Rules reads as follows

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.

A perusal of the Rule 21 of the CCS Rules as extracted hereinabove clearly indicates that it is an enabling provision which permits the period of leave during which salary is payable to be counted for computing 'qualifying service'. It is not possible to accept the submission of the counsel for the appellant that by implication, it excludes leave without pay. We are unable to read any such limitation in Rule 21.

4. Rule 27 which deals with the effect of interruption in service reads as under

Effect of interruption in service

(1) An interruption in the service of a Government servant 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 post of absentee is not filled substantively;

(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;

(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a Competent Authority in the public interest;

(e) joining time while on transfer from one post to another.

(2) Notwithstanding anything contained in Sub-rule (1), the Appointing Authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.

A reading of Rule 27 indicates that an authorized leave of absence, which would naturally include in certain circumstances leave without pay, and in certain circumstances, even unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively, are all to be reckoned as constituting part of the qualifying service. In other words in terms of Rule 27, such periods are not be excluded for computing the period of qualifying service. The learned Single Judge also found the Respondent No. 1 to be eligible for pension in terms of Rule 49(2) of the Rules. We concur with this view of the learned Single Judge.

5. A conspectus of the above provisions indicates that the concept of qualifying service is wider than what is sought to be suggested by learned Counsel for the appellant. No other ground is urged by the learned Counsel for the appellant to assail the impugned judgment of the learned Single Judge.

6. For the above reasons, we are of the view that no grounds are made out for interfering with the order of the learned Single Judge. Appeal is dismissed accordingly with no order as to costs.