PETITIONER: \\ ¥ RESPONDENTS: Smt. Nirmala Shrivastava Versus State of Madhya Pradesh Chhattz’sgarh) and others ORDER N POST ON ‘2“APRIL 2010 / dra Moha“ Shriv Judge /’/ l Manin Writ Petition (SI No.3154l2005 (now astava ., k HIGH COURT OF CHHATTISGARH : BILASPUR SingLe Bench : o’ble Shri Manindra Mohan Shrivastava Hn J. Writ Petition [SI No.3154[2005 PETITIONER: Smt. Nirmala Shrivastava Versus State of Madhya Pradesh (now Chhattisgarh) and others RESPONDENTS: Present: Shri Somkant Verma, counsel for the petitioner. Shri Ajit‘ Singht Panel Lawyer for the State/respondents. \ (Passed on LKApril, 2010) lfi’This petition has been flled by the petitioner assailing legality and validity of order dated 31.8.1998 (Annexure A-3) passed by the Block Education Officer, Chhuikhadan, communicating to the petitioner the ordet/decision of the Joint Director, Treasury Accounts & Pension, Raipur, whereby pension of the petitioner has been forfeited. 2. Case of the petitioner is. that the petitioner, a Lower Division Teacher, in Govt. Middle School, Udan, Block and Tahsil Chhuikhadan applied for voluntary retirement upon completion of 2O years of service, which was accepted vide order dated 22.10.1996,(Ahnexure A-l) passed by the Dy. \ 3 Director/respondent No.3. By the aforesaid order, petitioner was voluntarily retired w.e.f. 28.8.1993 under Rule 42 of the M.P./C.G. Civil 976 (henceforth “the Rules bf 1976”). Upon l . Services (Pension) Rules, \ 1 petitioner was granted up to November, d to her from 28.8.1993 anticipatory gratuity and pension was also pai 1997 as ev1denced from extract of pass book L 16.9.1998 (Annexure A—4). A-5) of the Block Education Officer duly approved by the Deputy Director, Public Education. The E a A extraordinary leave taken during servics and granted by proper authority counts as qualifying service. It further provides that Where extraordinary leave exceeding 120 days is not sanctioned by proper authority, only 120 days will be treated as qualifying service and the rest of the period shall not qualify for pension. There is no pleading or material 0n record that order dated 14.10.1996 granting extraordinary leave in respect of period from 16.10.1988 to 27.8.1993 was ever recalled/reviewed either by the authority granting leave or by any other m’ authority. Communication dated 21.1.2000 (Annexure A-6) made by Block Education Officer, Chhuikhadan to the petitioner however states that the State Government Vide its order dated 14.10.1999 has disallowed the period covered under extraordinary leave for the purpose of pension. The said order dated 14.10.1999 has not been placed on record. Neither the petitioner nor the respondents have made any averments with regard to fact as to Whether order dated 14.10.1999 of the State Government as mentioned in communication dated 21. 1.2000 (Annexure A -6) was ever served on the petitioner. Petitioner has also not assailed legality and validity of order dated 14.10. 1999 of the State L: " Govei “:nent. 9. Contention of the petitioner that if the order of voluntary retirement was found to be illegal and pension forfeited, petitioner ought to be given a posting order and allowed ’to continue in service, deserves to be accepted. If at all‘the period of extraordinary leave was disallowed by the State Government for the purposes of pension, petitioner ought to have been continued in service till she attained the age of superannuation had she not been retired w.e.f. 28.8.1993. From the communication made to the petitioner, it is found that petitioner was [“...,1 \ , wrwg‘g asked to refund entirs amount of pension and other retrial beneflts received by her on the basis of order dated 22. 10. 1996. 10. The respondents could not have blown hot and cold at the same time. If on account of refusal to count the period from 16. 10.1988 to 27.8. 1993 for the purpose of qualifying service, petitioner was not entitled to grant of voluntary retirement, she ought to have been continued in service by issuing proper posting order. Respondents therefor committed serious illegality. Under these circumstances, petitioner is entitled to get the . entire benefits of service including arrears of pay till the date she attained the age of superannuation. However, the payment already made to the petitioner in the form of retrial benefits and anticipatory pension etc. shall be deducted from the arrears of pay to which the petitioner is entitled. The pension case of the petitioner shall also be decided by the respondents in accordance with law. Petition is accordingly allowed to the extent indicated above. There shall Praveen 11. be no order as to costs. ,,,\_ \un Sd/— l .Manindra Mohan Shrivastava Judge