IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.3600/2008 Reserved on: 28.6.2010 Decided on: 7.7. 2010. Narinder Singh. ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. Vikash Rathore, Deputy Advocate General for respondents No.1 to 4. Mr. Ashwani Pathak, Advocate for respondents No.5. Justice Rajiv Sharma, J. Petitioner joined as Master Craftsman in the pay scale of Rs. 75- 120 in the Industries Department in the month of June, 1963. The Wood Working Centre, Jubbal was transferred from Industries Department to Forest Department in the year 1967 under the control of Divisional Forest Officer, Logging Forest Division, Sabra alongwith entire staff. Petitioner fell ill on 3.8.1977 and remained under treatment upto 30.11.1978. The Logging Forest Division was taken over by the Himachal Pradesh Forest Corporation and it came under the control of Divisional Manager, Timber Extraction Division, Sabra. Petitioner submitted joining alongwith medical certificate on 1.12.1978 to Divisional Manager, Sabra. It was not accepted by him. Petitioner submitted representation on 15.1.1979 to Secretary 1 . Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 (Forest) to apprise him where he should join. However, the fact of the matter is that petitioner was not permitted to join. He was retired from Government service with effect from 7.6.1990 vide order dated 6.6.1995. The period with effect from 1.12.1978 to 7.6.1990 was treated as duty pursuant to the opinion of the Law Department dated 1.10.1994. Petitioner was sanctioned pension with effect from 8.6.1990. He filed original application bearing OA No. 717/1997 for the redressal of his grievances. The same was dismissed with permission to the petitioner to make representation to the competent authority. 2. Mr. Dilip Sharma has fairly submitted that during the pendency of the petition, some reliefs were granted to the petitioner. The petitioner has been given benefit of one year nine days for counting pensionary benefits. Similarly, he has been given benefit of five years as per Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976. Mr. Dilip Sharma has strenuously argued that the respondents have not calculated 132 days of extraordinary leave granted to him by the Industries Department towards qualifying service as per rule 21 of the Central Civil Services (Pension) Rules, 1972. He then contended that extraordinary leave of 618 days was granted with effect from 24.3.1968 to 27.2.1969 for 318 days and 1.7.1969 to 26.4.1970 for 300 days. According to him there is shortage of 23 days, which have not been counted by the respondents. He further contended that petitioner was entitled to benefit of proficiency increments after putting in 8 and 18 years with effect from 1.12.1978 to 7.6.1990. He lastly contended that the petitioner is entitled to interest on the delayed payment of retiral/pensionary benefits. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that rule 21 of the Central Civil Services (Pension) Rules, 1972 is not applicable qua the petitioner and there is no mis- 3 calculation as far as days is concerned. He further contended that since the petitioner has not remained on actual duty with effect from 1.12.1978 to 7.6.1990, he is not entitled to proficiency increments. He lastly contended that further benefits could not be granted to him on the ground of absence of Annual Confidential Reports. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner has been granted 132 days extraordinary leave by the Industries Department. The extraordinary leave has been granted to the petitioner on medical ground. It will be apt at this stage to take note of Government of India’s decision No.1 below rule 21 of the Central Civil Services (Pension) Rules, 1972, which reads thus: “(1) Need for making proper entries for treatment of extraordinary leave for pensionary benefits.- Under Rule 21 of the CCS (Pension) Rules, 1972, extraordinary leave granted on medical certificate qualifies for pension. The Appointing Authority may, at the time of granting extraordinary leave, also allow the period of such leave to count as qualifying for pension if the leave is granted to a Government servant- (i) due to his inability to join or rejoin duty on account of civil commotion, or (ii) for prosecuting higher technical and scientific studies. Extraordinary leave taken on other grounds is treated as non-qualifying and, therefore, a definite entry is to be made in the service records to that effect. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event. Even where this is not done, it should still be possible to rectify the omission during the period allowed for preparatory action, i.e. from two years in advance of the retirement date up to eight months before retirement. At the end of that period, however (i.e., when the actual preparation of the pension papers is take in hand), no 4 further enquiry into past events or check of past records should be undertaken. Specific entries in the service records regarding non-qualifying periods will be taken note of and such periods excluded from the service. All spells of extraordinary leave not covered by such specific entries will be deemed to be qualifying service.” 6. A bare perusal of Government of India’s decision No.1 (supra) reveals that extraordinary leave sanctioned on the strength of medical certificate is to be counted towards qualifying service. There is miscalculation while counting extraordinary leave and total days from 24.3.1968 to 27.2.1969 comes to 341 days and not 318 days. This period of 23 days is to be counted towards qualifying service. In total, petitioner is held entitled to the benefit of 132 + 23 days i.e. 155 days for qualifying service. He had been making representations to permit him to join his duties. Representations made by the petitioner were not heeded to and ultimately, he was retired on 7.6.1990. Petitioner cannot be faulted for not actually working with effect from 1.12.1978 to 7.6.1990. Respondents cannot take advantage of their own wrongs. In these circumstances, petitioner is held entitled to proficiency increments after 8 and 18 years. Petitioner has retired with effect from 7.6.1990 vide office order dated 6.6.1995. He has not been paid any interest on the delayed payment of retiral/pensionary benefits with effect from 8.6.1990 to 6.6.1995. It is settled law by now that employer has to release the retiral/pensionary benefits immediately on the date of retirement. Accordingly, the petitioner is held entitled to interest on delayed payment of retiral/pensionary benefits with effect from 8.6.1990 to 6.6.1995 @ 9% per annum. 7. Now, the Court has to advert whether the petitioner is entitled to pay scale at par with Sh. Dharam Pal Sarswati or not. Sh. Dharam Pal Sarswati was on deputation as Instructor Carpentry in Gram Sewak Training Centre Mashobra under Department of Agriculture in the pay 5 scale of Rs. 160-400, which was further revised to Rs. 570-1080. He was permanently absorbed and confirmed in the Department of Agriculture with effect from 4.5.1984 as Instructor Carpentry. In these circumstances when the pay scale of Instructor Carpentry has been further revised from Rs. 570-1080 to Rs. 1500-2640 with effect from 1.1.1986, case of the petitioner is not comparable with Sh. Dharam Pal Sarswati. 8. No other point was urged. 9. Accordingly, in view of the observations made hereinabove, the petition is partly allowed. Respondents are directed to count 155 more days towards qualifying service with further direction to the respondents to release proficiency increments after putting in 8 and 18 years of service. Petitioner is held entitled to the interest on the delayed payment of retiral/pensionary benefits. He is also held entitled to leave encashment for the period, w.e.f. 1.12.1978 to 7.6.1990. The amount ordered to be paid to the petitioner shall carry interest @ 9% per annum. No costs. (Justice Rajiv Sharma) Judge. 7.7. 2010. *awasthi*