1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4358/2004. : : Smt. Meenaxi Chunni Lal Vs. State of Rajasthan & Ors. : : Date of Order 20.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Sanjeev Prakash Sharma for the petitioner. Mr.Bharat Vyas for the respondents. This writ petition has been filed by the petitioner with a grievance that in spite of the fact respondents have accepted her application for retirement vide order dated 14.5.2002 w.e.f. 21.7.1998, they have not paid to her pension and other retiral benefits. The facts of the case indicated that the petitioner proceeded on leave for one month w.e.f. 21.7.1998. According to the petitioner, she was not in a position to continue her duties due to heart problem and remained absent for about 3 and ½ years and finally she submitted an application on 28.1.2002 requesting the respondents to retire her voluntarily w.e.f. the date she proceeded to leave i.e. 21.7.1998. By that order the respondents treated the period i.e. 21.7.1998 till 28.1.2002 as a extra ordinary leave which is 2 not admissible for pensionary benefits. The respondents have withdrawn that part of the order by subsequent order dated 6.10.2004 and now it has been directed that since the petitioner did not submit any application for leave so according to Rule 93-B of R.S.R. she did not fulfill the condition of Rule and, therefore, Rule 50 (7) of the Rajasthan Civil Services (Pension) Rules, 1996 did not apply to her case. The Head Mistress of the school, where the petitioner was posted, was asked to prepare the case for grant of extra ordinary leave to the petitioner from the period of 21.7.1998 to 27.1.2002 and submit the same to the competent authority and direction was issued for preparing the pension case of the petitioner w.e.f. 28.1.2002. The respondents have filed affidavit to the effect that Rule 211 of Rajasthan Service Rules was also erroneously invoked in the case of the petitioner since the said rule was not in force after the Rajasthan Civil Service (Pension) Rules, 1996 were promulgated. The previous order was, therefore, reviewed and fresh order was passed. Since the petitioner was neither present on duty nor did she apply for leave of any kind during the intervening period, the said order could not be passed. It is, therefore, contented that according to Rule 93 of RSR, the petitioner is not entitled for 3 leave of any kind for the simple reason that she never applied for the same and, therefore, she cannot claim the pension and other retiral benefits from the period of 21.7.1998 to 27.1.2002. Rule 93 inter alia provides that a Government servant shall be entitled to half pay leave of 20 days in respect of each completed year of service and that commuted leave not exceeding half the amount of half pay leave due may be granted on medical certificate. Rule 93 (3) of RSR provides that leave not due may be granted to the government servant if the government servant is satisfied that there is reasonable prospects of government servant returning to duty. Leave not due during the entire service shall be limited to a maximum of 360 days, out of which not more than 90 days at a time and 180 days in all, may be granted otherwise than on medical ground. Leave not due shall be debited against the half pay leave the government servant may earn subsequently. In the present case, the peculiar facts of the matter are that even though the petitioner proceeded on leave for one month and did not come back to resume the duties for more than 3 & ½ years, still the respondents did not take any departmental action against her. The petitioner has now applied for grant of 4 voluntarily retirement on the premise that she is having heart ailment and, therefore, she cannot resume duties. The respondents have produced on record that the petitioner applied for leave on medical ground only once by application dated 20.7.1998 and thereafter no such application was made. The resultant situation that emerges from the aforesaid narration of facts is that though the respondents originally retired the petitioner w.e.f. 21.7.1998 on her application but at the same time directing that the period of her absence for the subsequent period upto the date of aforesaid order dated 14.5.2002 would neither count towards qualifying period of pension nor for any other retiral benefits, now they have subsequently passed the order retiring the petitioner w.e.f. 21.7.2002. In view of the provisions contained in Rule 93, she cannot claim the leave not due as during her entire service such leave shall be limited to a maximum of 360 days, out of which not more than 90 days at a time and 180 days in all, may be otherwise than on medical ground. In the facts and circumstances of the case the respondents themselves have now decided to retire the petitioner w.e.f. 21.7.2002 though the learned counsel for 5 the petitioner has raised a grievance that subsequent order was passed without any opportunity of hearing to the petitioner. According to Rule 50 (7) of Rajasthan Civil Services (Pension) Rules, 1996, if a Government servant seeks retirement while he is on leave not due, the retirement shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him but the respondents themselves initially passed the original order in terms of Section 50 (7) but now they do not want to go with the aforesaid stand and they have passed fresh order retiring the petitioner from 21.7.2002. In any case, respondents cannot treat the period of her absence from the date she proceeded on leave till she was retired as break in service. This situation is, therefore, required to be resolved by invoking Rule 96 of RSR which provides for grant of extraordinary leave in special circumstances when no other leave is by rule admissible. Such appears to be intention of the respondents themselves as they have order dated 6.10.2004 instructed the Headmistress of the school to prepare the case for grant of extraordinary leave of the petitioner for the period from 21.7.1998 to 21.7.2002 and forward the matter to the competent authority. The respondents, therefore, ought to 6 take the matter to the logical end by granting extraordinary leave to the petitioner for the aforesaid period of her absence excluding the period for one month for which she was granted leave. This writ petition is accordingly allowed with the directions to the respondents to regularise the period of petitioner's service by granting her extraordinary leave in terms of order dated 6.10.2004 and accordingly, such period of extraordinary leave has to be treated as part of qualifying service as per of Rule 13 of the Rajasthan Civil Services (Pension) Rules, 1996 and keeping in view Rule 96 (d) of the RSR which empowers the competent authority to grant leave and commute retrospectively periods of absence without leave into extraordinary leave. It is made clear that the petitioner though shall be entitled for extraordinary leave but this period shall be treated as continuity in service and accordingly entitled to receive other benefits than the salary, for the purpose of grant of pension, gratuity and other retiral benefits. Respondents are further directed to grant all consequential benefits to the petitioner and also revise her pension and pay to her gratuity and provident fund and other retiral benefits as may be found due. 7 Compliance of the judgment be made within three months from the date certified copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.59. 8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL CONTEMPT PETITION No.293/2004. IN S.B. CIVIL WRIT PETITION No.4358/2004. : : Smt. Meenaxi Chunni Lal Vs. State of Rajasthan & Ors. : : Date of Order 20.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Sanjeev Prakash Sharma for the petitioner. Mr.Bharat Vyas for the respondents. This suo moto contempt petition is disposed of in the light of the judgment passed in the impugned Writ Petition No.4358/2004 and the notices issued to the respondents are discharged. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.60