IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 707 of 2005 Decided on: October 24, 2008 Uma Sharma Petitioner Vs. State of H.P. and Others Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Dilip Sharma, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. AG No. 1 with Mr. P.M. Negi, Dy. A.G. Surjit Singh, Judge (oral) Through this writ petition, judicial review of order dated 7.6.2005 of H.P. State Administrative Tribunal has been sought, whereby original application moved by the writ petitioner, seeking a direction to the respondents to fix the amount of family pension, payable to her on account of the death of her husband late Shri M.R. Sharma, an employee of respondent No. 1, in accordance with order dated 30th June 2001, Annexure-PL and the incidental order of fixation of pay, Annexure-PM, has been dismissed. 2. Petitioner’s husband late Shri M.R. Sharma was employed as Senior Assistant with the State of Himachal Pradesh, respondent No. 1 herein. He joined service in the year Whether reporters of the local papers may be allowed to see the judgment? …2… 1966. It appears that he fell sick and stopped going to the office sometime in the year 1987. In February 1993, he appears to have reported for duty, but was not given any posting nor was he assigned any work. In April 1995, he was charge-sheeted for willful absence from duty from 1.12.1987 onwards. On 14.11.1997, he died when proceedings for departmental action were still pending. It appears that thereafter the petitioner, being the widow of late Shri M.R. Sharma, applied to the State Government for grant of family pension. An order was passed by the Engineer-in-Chief, Annexure-PD, regularizing the period of absence by sanctioning the leave of the kind due. After Shri M.R. Sharma stopped attending the office and before his death, revision of pay scales took place w.e.f. 1.1.1996. Consequently, pursuant to the order dated 23.6.1999, Annexure-PD, pay of late Shri M.R. Sharma was re-fixed. Papers for grant of family pension to the petitioner were accordingly prepared and sent to the Accountant General. It appears that Accountant General raised objection as to the competence of the Engineer-in-Chief to issue the order, Annexure-PD, granting the leave of kind due for the period of absence of late Shri M.R. Sharma. Thereafter, respondent no. 1 issued the order, Annexure-PL, which is dated 30th June 2001, in the name of Governor of Himachal Pradesh, regularizing the entire period of absence from 3rd January 1986 up to the date of death of Shri M.R. Sharma i.e. 14.11.1997. As per this order, period from 3.1.1986 to 25.2.1993 was regularized as Extra Ordinary Leave on medical grounds and the …3… remaining period was regularized as compulsory waiting period, which term is indicative of the fact that late Shri M.R. Sharma reported for duty but was not assigned any work, probably because of his sickness. Pay was re-fixed in terms of this order, Annexure-PL vide Annexure-PM, which is dated 21st August 2001. The pay was fixed at Rs. 7660/- as on 1.1.1997. Fresh papers for grant of family pension based on this revised pay fixation order, Annexure-PM, were prepared and submitted to the Accountant General. Accountant General was satisfied about the regularization of the absence period of late Shri M.R. Sharma vide order, Annexure-PL, as is clear from his reply filed before the State Administrative Tribunal. In the meanwhile, it appears, the Treasury Officer raised some objection about the order, Annexure –PL, and the fixation of pay in terms of said order vide Annexure-PM. The objection of the Treasury Officer was whether the salary for the waiting period was admissible under the rules or not. Since the petitioner had been waiting for too long for grant of family pension, she knocked at the doors of State Administrative Tribunal by filing O.A. No. 649 of 2002 in April 2002. In January 2003, respondent No. 1, i.e. the State of Himachal Pradesh, issued another order, Annexure-PO, dated 7th January 2003 superseding the order, Annexure-PL and treating the entire period during which late Shri M.R. Sharma remained absent as also the period of compulsory waiting as dies-non. Pursuant to this order, Annexure-PO, pay of late Shri M.R. Sharma, as on the date of his death was re-fixed, vide …4… Annexure-R-III at Rs. 5800/- and fresh pension papers were prepared treating the last drawn pay of the deceased as Rs. 5800/-. Respondent No. 1 after issuing the aforesaid order, Annexure-PO and re-fixing the pay vide, Annexure-R-III, filed reply before the Tribunal and took the stand that family pension was being fixed in accordance with the orders contained in these two annexures. Petitioner filed rejoinder alleging that Annexure- PO was bad having been issued without application of mind and prayed for quashing the same. Learned Tribunal vide order, Annexure-PV, dismissed the petition holding that Rule 12 of the CCS (Leave) Rules, 1972 fixes the maximum limit of period for leave which can be granted and the same is five years and since the order, Annexure-PL, had been objected to by the Treasury Officer, respondent No. 1 reconsidered the same and passed fresh order (Annexure-PO). 3. Petitioner is aggrieved by the order of the Tribunal. Besides, seeking the quashing of the order of the Tribunal, she has sought the quashing of order, Annexure-PO, dated 7th January 2003 passed by respondent No. 1 during the pendency of O.A. and the restoration of order, Annexure-PL and fixation and grant of family pension and arrears of pay, accordingly. 4. We have heard the learned counsel for the writ petitioner and Mr. P.M. Negi, Deputy Advocate General appearing for respondent No. 1 and gone through the record. We are of the considered view that the Learned Tribunal has misinterpreted the provisions of Rule 12 of CCS (Leave) Rules, 1972. Rule 12, itself …5… suggests that President in exceptional circumstances of the case may grant leave in excess of period of five years prescribed in the said rule. The rule reads as under:- “Unless the President, in view of the exceptional circumstances of the case otherwise determines, no Government servant shall be granted leave of any kind for a continuous period exceeding five years.” In the present case, initially leave for the period of alleged unauthorized absence had been granted by the Engineer-in-Chief vide order, Annexure-PD. Pay was accordingly re-fixed and papers submitted to the Accountant General, respondent No. 3 herein, accordingly. Accountant General raised objection that the Engineer-in-Chief was not competent to grant leave in excess of five years. Objection raised by the Accountant General was met by respondent No. 1 by getting the leave sanctioned from the Governor vide, Annexure-PL. We may notice that in the matter of application of the CCS (Leave) Rules to the employees of the Government of Himachal Pradesh instead of the President, Governor is taken to be the competent authority. That means after the Accountant General raised the objection, competent authority regularized the period of absence, which was in excess of five years by granting extra ordinary leave for 2580 days on medical grounds and treating the remaining period of 1723 days as compulsory waiting period. Reply filed by respondent No. 3 before the Tribunal shows that the objection raised by him was met to his satisfaction. Now, when the …6… Governor had the power under Rule 12 of the CCS (Leave) Rules to grant leave in excess of the limit of five years, prescribed in the same rule, in the first instance, Treasury Officer should not have raised any objection when the bill for withdrawal of the arrears of salary for the period of compulsory waiting was issued and then respondent No. 1 ought not to have reviewed its order contained in, Annexure-PL, by superseding it with order, Annexure-PO, to meet the objection raised by the Treasury Officer. Now, when the order, Annexure-PL, shows that late Shri M.R. Sharma had been granted extra ordinary leave on medical grounds and the rest of the period was treated as compulsory waiting period, it was a clear case of exceptional circumstances spoken of in Rule 12 of the CCS (Leave) Rules and unless respondent No. 1 on review found that the said circumstances did not exist the said order, Annexure-PL ought not to have been reviewed by issuing order Annexure-PO. In view of the above stated position, we have no doubt in our mind that Learned State Administrative Tribunal has failed to exercise the jurisdiction vested in it correctly which has resulted in miscarriage of justice. Consequently, we allow the writ petition, set-aside the impugned order of the Tribunal, which is Annexure- PV and is dated 7.6.2005 and also set aside the order of respondent No. 1, which is Annexure-PO and is dated 7.1.2003 and restore the office order issued in the name of Governor, i.e. Annexure-PL, whereby the period of absence of late Shri M.R. Sharma had been regularized partly by grant of extra ordinary …7… leave and partly by treating the same as compulsory waiting period. Consequently, we direct the respondents to re-fix the family pension payable to the petitioner in terms of pay fixation order, Annexure-PM, which was issued in accordance with Annexure-PL and also to pay the arrears of pension, accordingly. We also direct respondent No. 1 to pay the arrears of salary, if any, in accordance with the order of pay fixation, Annexure-PM. We further direct the respondents to comply with the aforesaid directions within three months. Writ petition stands disposed of accordingly. ( R.B. Misra ), J. October 24, 2008 ( Surjit Singh ), J. (vs)