Shri Sumant Kumar Tyagi vs Union Of India & Others
2012 Latest Caselaw 828 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                      Judgment delivered on 07.02.2012

+      W.P.(C) 732/2012

SHRI SUMANT KUMAR TYAGI                                              ...       Petitioner

                                           versus

UNION OF INDIA & OTHERS                                              ...       Respondents

Advocates who appeared in this case:
For the Petitioner     :            Mr Nilansh Gaur
For the Respondents    :            Mr Rajesh Katyal

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

                                    JUDGMENT

BADAR DURREZ AHMED (ORAL)

1. By an order dated 06.08.2010 passed by Division Bench of this Court in W.P.(C) No.2698/2010, the petitioner's Original Application No.2909/2005 was revived on a limited remand. The operative portion of the order dated 06.08.2010 passed by a Division Bench of this Court reads as under:-

"23. Since the Tribunal has not decided whether the respondent was entitled to pension on being compulsorily retired and this being the only question which the Tribunal had to decide, we dispose of the writ petition quashing the impugned order dated 4.11.2009 and reviving OA No.2909/2005 for fresh adjudication by the Tribunal.

24. Needless to state, the Tribunal would treat the order compulsorily retiring the respondent from service as

immune from challenge. The Tribunal would decide the limited question whether on being compulsorily retired the respondent is entitled to any pension under the pension rules and if held entitled to the same, with effect from what date." (underlining added)

2. Consequently, the only question before the Tribunal on the said limited remand was whether the petitioner was entitled to any pension on his being compulsorily retired with effect from 31.08.1984. It was also directed by the High Court that in case the petitioner was found entitled to pension, the Tribunal was also to determine the question as to from which date he would be entitled.

3. In this backdrop, the Central Administrative Tribunal, Principal Bench, New Delhi rendered the impugned decision dated 08.11.2011 in the said O.A. No.2909/2005 on the question of the petitioner's entitlement to pension. The Tribunal came to the conclusion that as the petitioner did not have the qualifying service of 20 years for being entitled to pension, the petitioner would not get any pension on his compulsorily retirement.

4. The petitioner was appointed on 27.05.1964 and his date of compulsory retirement, as indicated above, was 31.08.1984. As such his entire duration of service came to 20 years 3 months and 5 days. He was on extraordinary leave for 9 months and 26 days. Consequently, he was left with 19 years, 5 months and 9 days. Furthermore, he remained unauthorizedly absent from duty between 15.11.1980 to 30.11.1984 and this period has also been treated as extraordinary leave. As a result of all this, his qualifying service came to 15 years 7 months and 23 days. He was required to have a minimum qualifying service of 20 years for his entitlement to pension. Unfortunately, the petitioner did not have this minimum qualifying service of 20 years. We note that normally the period for entitlement to pension is 30 years of qualifying service as provided in Rule 48, however, in the

case of voluntary retirement, the minimum qualifying service for entitlement to pension is 20 years as prescribed in Rule 48-A. Thus, even if the petitioner's case is considered as one of voluntary retirement, he would not have the minimum qualifying service of 20 years to enable him to be entitled for pension. Consequently, we find no error in the impugned order passed by the Tribunal in concluding that the petitioner did not have the minimum qualifying service to entitle him for pension.

5. The learned counsel for the petitioner then placed reliance on Rule 40(1) to submit that he would get proportionate pension even in the case of compulsory retirement. Rule 40(1) reads as under:-

"40.(1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement."

6. According to us, Rule 40(1) would not at all be applicable in the present case. In our view, the said rule would apply to those persons who have been compulsorily retired but after having attained the minimum qualifying service. This is not the case with the petitioner inasmuch as he has been compulsorily retired with effect from 31.08.1984 and, on that date, the qualifying service attained by him was only 15 years 7 months and 23 days which was less than the requisite minimum. Consequently, this argument which has been urged on behalf of the petitioner has been rightly repelled by the Tribunal. Last of all, the learned counsel for the petitioner submitted that the period of unauthorized absence ought to have been included in his qualifying service. He submitted that this aspect of the matter has not been examined by the Tribunal. However, we find that the petitioner has not challenged this aspect of the matter even in the Original

Application. The prayers in the Original Application sought the quashing of the order dated 17.08.1984 and 10.01.2000 which were annexed as annexures A-1 and A-2 to the Original Application. Those orders do not deal with this aspect of treating the unauthorized absence as leave for the purposes of qualifying service. In any event, we find that Rule 21 specifically provides for counting of periods spent on leave. Rule 21 reads as under:-

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." (underlining added)

7. The only category of extraordinary leave which is to be counted for the purposes of qualifying service is extraordinary leave granted on medical certificate. This is a case of extraordinary leave granted on medical certificates and as such the petitioner cannot claim that the period of unauthorized absence from duty which has been treated as extraordinary leave ought to be counted towards qualifying service. In fact, even the explanation given by the petitioner as to why he was absent from duty was on account of his wife being ill and not that he was ill.

8. In these circumstances, we see no infirmity in the order of the Tribunal. The writ petition is dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

V.K.JAIN, J FEBRUARY 07,2012 'sn'