1 aswp-7680-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7680 OF 2011 1. State of Maharashta and ors. .. Petitioners Vs. Shri M.A.A.R. Ahamadi .. Respondent Mr. A.B. Vagyani, AGP for petitioners. Mr. K.K. Waghmare for respondent. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. November 29, 2011. P.C. 1. Heard Mr. Vagyani, the learned AGP for the petitioners, who are aggrieved by the order dated 3/1/2011 passed by the Maharashtra Administrative Tribunal (for short the Tribunal), thereby allowing O.A. No. 697 of 2008 filed by the present respondent. The OA has been allowed in terms of prayer clause 9 (b), (c) and (d), which read as under:- (b) To quash and set aside the impugned orders dated 27/11/2007 passed by respondent no.1 and 23/9/2008 passed by the respondent no.3. (c) To direct the respondents to count the absent period as qualifying service for the purpose of Pension/gratuity. 2 aswp-7680-11 (d) To direct the respondents to revise the Pension/gratuity of the applicant after counting the absent period as qualifying service for the purpose of Pension/Gratuity. 2. Mr. Vagyani, the learned AGP, referred to the scheme of Rule 48 of the Maharashtra Civil Services (Pension) Rules 1982 (for short the Pension Rules) and submitted that the period of interruption condoned shall not count as qualifying service and the Tribunal was not justified in overlooking the entire scheme of the said Rule. He further submitted that the respondent was called upon to appear before respondent no.3 for medical examination but he never appeared and, therefore, the order dated 27/11/2007 passed by the petitioner no.1 cannot per se allow the petitioners to count the leave period treating as extra ordinary leave for any other purpose, including pension. We are not impressed by these submissions. 3. Admittedly, two spells of medical leave have been regularized by the order dated 27/11/2007 passed by the Secretary and these two spells are (a) 11/2/1995 to 12/9/1996 (277 days) and (b) 17/9/1997 to 31/7/2005 (7 years, 10 months and 14 days). Both these spells have been sanctioned as extra ordinary leave on medical grounds. When the respondent had submitted his application along with two medical certificates to petitioner no.3, the said petitioner had confirmed by communication dated 29/5/2007 that the respondent was on medical leave. Two medical certificates were annexed along with the application and the letter dated 29/5/2007 forwarded by the petitioner no.3 clearly 3 aswp-7680-11 mentioned grant of extra ordinary leave on medical ground. It is not in dispute that as per the order dated 27/11/2007 both the spells of leave of absence have been regularized as extra ordinary leave on medical grounds. 4. Mr. Vagyani, the learned AGP, submitted that in the order dated 27/11/2007 it has been specifically stated that the regularized period of two spells will not be counted for any other purpose. This submission has no merit while challenging the order passed by the Tribunal and more so on the face of the scheme of Rule 35 of the Pension Rules. The said Rule reads as under:- “35. The counting of leave for pension - All leave during the period of continuous service for which leave salary is payable and all extra-ordinary leave granted on medical certificate shall count as qualifying service for pension.” 5. Thus, Rule 35 has two parts and in the first part all leave during the period on continuous service for which leave salary is payable is covered, whereas in the second part of extra-ordinary leave granted on medical certificate is covered so as to count as qualifying service for pension. Having passed the order dated 27/11/2007, for regularizing both the spells as absence as ordinary leave on medical ground, the State Government had no choice but to extend the pensionery benefits by counting said period in view of the scheme of Rule 35. The Tribunal has 4 aswp-7680-11 rightly compared the scheme of Rule 35 unamended and Rule 35 after its amendment and relied upon the amended Rule. Rule 48 of the Pension Rules is applicable for condonation of interruption in service and in the instant petition, there is no case of interruption in service. No interference is called for in the view taken by the Tribunal. 6. Hence, this petition fails and the same is hereby rejected. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)