1 RAJASTHAN RAJYA VIDHYUT PRASARAN NIGAM LIMITED & ORS. VS. B.D.KIRADU (D.B. SPECIAL APPEAL(W) NO. 134/09) Dated :- 29.1.09. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Ravi Bhansali, for the appellants. 1. This special appeal is directed against order dated 19.8.08 passed by the learned Single Judge whereby the writ petition preferred by the writ petitioner, the respondent herein seeking direction for grant of pension while taking into account his entire service i.e. from 3.7.1965 to 31.7.1999 stands allowed and accordingly, the appellants herein have been directed to redetermine the pension of the respondent by taking into consideration the period commencing from 6.5.95 to 19.2.99 as part of the pensionable service of the respondent. 2. The relevant facts in nutshell are that the respondent holding the post of Assistant Engineer in the appellant Corporation was served with the charge sheet for misconduct committed by him. After due inquiry, he was found guilty of the charges levelled against him, consequently, vide order dated 6.5.95 passed by the disciplinary authority, he was removed from service. Aggrieved by the aforesaid order of penalty the respondent preferred a writ petition before this court which was 2 dismissed as withdrawn vide order dated 12.1.99 with the directions that the appeal preferred by the respondent be considered by the appellate authority by condoning the delay. In pursuance of the order passed by this court, the respondent preferred an appeal before the appellate authority which was decided vide order dated 12.2.99 whereby the penalty of removal from services imposed upon the respondent vide order dated 6.5.95 was ordered to be reduced to that of reduction to a lower stage by three increments in time scales of A.En.. It was further ordered that on application being preferred by the respondent after joining his duties back in the Board, (now the Corporation ), orders for sanction of extra ordinary leave without pay from the date of removal till the date he resumes the duties shall be issued by the concerned authority. However, it was specifically ordered that the period of absence due to removal from Board services will be counted for the purpose of continuity of service. The pay and allowances for the period of suspension except the subsistence allowance already sanctioned was also ordered to be forfeited. 3. The respondent stood retired from service on attaining the age of superannuation on 31.7.99. However, while determining the pension of the respondent, the appellants did not take into consideration the period of service commencing from 6.5.95 to 19.2.99 i.e. the period for which he remained absent due to 3 removal from service on the ground that the extra ordinary leave without pay cannot be counted for the purpose of pension. 4. It was contended on behalf of the appellant before the learned Single Judge that since the extra ordinary leave without pay was sanctioned for the period of absence i.e. from 6.5.95 to 19.2.99 therefore, the same was not required to be taken into consideration for determination of the pension. 5. The learned Single Judge after due consideration of the matter, held that in the normal course the extra ordinary leave is not required to be taken into consideration for determination of the pension as it is treated to be interruption in service however, since in the instant case, the settlement committee vide order Annexure 2 annexed with the writ petition while granting extra ordinary leave has also ordered to count the said period for the purpose of continuity of service therefore, the same cannot be ignored while determining the pension. Accordingly, while allowing the writ petition the learned Single Judge has issued the directions in the terms referred supra. 6. It is urged by the learned counsel for the appellant before us that as per the provisions of Rule 20(2) of Rajasthan Civil Service Pension Rules, 1996 the extra ordinary leave without pay can be counted as qualifying service only in the circumstances specified therein which does not cover the case of the respondent therefore, he is not entitled for counting the period of 4 extra ordinary leave as qualifying service for the purpose of pension. 7. It is true that ordinarily the counting of periods spent on leave as qualifying service shall be governed by the provision of Rule 20 of the Rules of 1996. But in the instant case, admittedly, while dealing with the matter of disciplinary action against the respondent, the appellate authority has reduced the penalty imposed upon the respondent for the misconduct proved from removal to reduction to a lower stage by three increments in the time scales of A.En. and it has been further ordered that the period of absence i.e. from the date of removal till the respondent joined duties shall be treated to be extra ordinary leave without pay but the same shall be counted for the purpose of continuity of service. In this view of the matter, for the period of absence, the respondent is not entitled for any pay and allowances but the same has to be counted for the purpose of continuity of service for all purposes. Consequently, the period of extra ordinary leave without pay cannot be treated to be break or interruption in service and cannot be excluded from being counted as qualifying service for the purpose of pension by invoking the provisions of Rule 20 of the Rules of 1996. 8. For the aforementioned reasons, we are of the considered opinion that the order impugned passed by the learned Single Judge does not suffer from any error warranting interference by 5 us in this intra court appeal. 9. In the result, the appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J.