IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 129 of 2009 State of Uttarakhand & others. .……… Appellants Versus Chandra Mohan Pandey. .………. Respondent Mr. Subhash Upadhyaya, Brief Holder for the appellants. Mr. Rajendra Dobhal, Senior Advocate with Mr. Tarun Lakhera, Advocate for the respondent. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Tarun Agarwala, J. J.S. KHEHAR, C. J. (Oral) Respondent Chandra Mohan Pandey came to be appointed as Assistant Teacher (LT Grade) on ad hoc basis on 28.02.1967. His services were dispensed with on 04.09.1968 on account of the fact that a regularly selected candidate reported for duty. Subsequently, Chandra Mohan Pandey was appointed on regular basis as Assistant Teacher (LT Grade) on 19.03.1969. He continued to discharge his duties as such till his superannuation on 31.07.2001. While determining his retiral benefits, the appellant declined to take into consideration the period of service rendered by the respondent from 28.02.1967 till 04.09.1968, when he worked as an Assistant Teacher (LT Grade) on ad hoc basis. To seek the aforesaid benefit, the respondent approached this Court by filing Writ Petition No. 1096 of 2002 (S/B). The aforesaid Writ Petition came to be allowed by a learned Single Judge on 02.04.2008. Through the instant Special Appeal, the appellant has impugned the order passed by this Court on 02.04.2008. The solitary contention advanced by the learned counsel for the appellant was based on Rule 422 of the Civil Service Regulations and Government Orders. Rule 422 is being extracted hereunder: “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 – 2 (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 of five years’ duration, and in cases where there are two or more such interruption, the total 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 period of interruptions sought to be condoned, should not exceed one year. Provided that the above power may be exercised by the pension sanctioning authority in cases in which the qualifying service even otherwise is not less that of ten years’ duration.” While relying on the aforesaid Rule, learned counsel for the appellant invited the attention of this Court to sub-rule (2) thereof, wherein the mandate stipulated is, that service preceding an interruption should not be of a duration of less than 5 years. It is, therefore, submitted that in cases where service preceding the interruption is less than 5 years, as was the case of respondent Chandra Mohan Pandey, there was no question of treating the period of service rendered, prior to the break in service, as qualifying service for determining pensionary benefits. There can be no doubt about the veracity of the submission advanced by the learned counsel for the appellant. Sub-rule (2) of Rule 422 (extracted herein above) clearly requires that an interruption in service (whether permanent or temporary) can be condoned only if the service period preceding the interruption is for a duration of 5 or more years. But then, there is a proviso under the Rule, which authorises the competent authority to treat the service preceding such interruption as qualifying service, in a case wherein the total qualifying service earned by an employee is of a duration of 10 or more years. As is apparent from the factual position noticed herein above, the respondent was inducted into the service of the appellants for the second time on 19.03.1969 on regular basis. He continued to render service till his retirement on 31.07.2001. Obviously, he had more than 10 years of qualifying service. Thus viewed, the proviso enabled the competent 3 authority to exercise its discretion in favour of the respondent so as to enable him to treat the earlier service rendered by him from 28.02.1967 to 04.09.1968 as qualifying service. We would have ordinarily required the competent authority to take a decision in view of the authority vested in it under the proviso to Rule 422. But we refrain from doing so in view of the decision of the State Government dated 31.03.1970. The aforesaid decision of the State Government is extracted hereunder: “Decision of the State Government It has been decided, in relaxation of the provisions of Article 422, that in case of re-appointment of a retrenched person on the same or any other post, the interruption between the date of retrenchment and re- appointment shall be treated as condoned but the period of interruption shall not be included in qualifying service.” A perusal of the aforesaid decision leaves no doubt in our minds, that if an employee is retrenched from service and subsequently is reinducted into service, the period of service rendered by him prior to his retrenchment is to be treated as qualifying service. Thus viewed, as per the decision of the State Government dated 31.03.1970, the respondent had the right to have the period of service rendered by him from 28.02.1967 to 04.09.1968 as qualifying service for the purposes of computation of pensionary benefits because when he was relieved at the end of his first tenure of employment on 04.09.1968, it was to accommodate a regularly selected candidate who had reported for duty. The decision of the State Government extracted above applies to the case of this respondent. This conclusion of ours affirms the view expressed by the learned Single Judge. In view of the above, we are of the view that the instant Special Appeal is devoid of any merit. The same is accordingly hereby dismissed. (Tarun Agarwala, J.) (J.S. Khehar, C. J.) 02.12.2009 02.12.2009 G