IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 8395 of 2008 (OA No. 763 of 2002). Judgement reserved on: 29.6.2009. Date of decision: July 20, 2009. Dr. K.S.Larzoo …..Petitioner. Vs. State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 For the petitioner : Mr. Jeevesh Sharma, Advocate vice Mr. M.S.Thakur, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Addl. Advocate General with and Mr. A.K. Bansal, Additional Advocate General and Mr. R.P.Singh, Asstt. Advocate General, for respondent No.1. Mr. Lokinder Thakur, Advocate, for respondent No.2. Kuldip Singh, Judge.. On transfer of cases from H.P. Administrative Tribunal after its abolition vide notification dated 8th July, 2008 and thereafter in view of the Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008, O.A. No. 763 of 2002, which was filed in the erstwhile Tribunal, has been registered as CWP(T) No. 8395 of 2008 in this court. 2. The petitioner by way of present petition has raised grievance for not counting his service from 21.10.1984 to 4.3.1989 for pensionary benefits and for quashing of memo dated 1.6.2001 Annexure A-10. The further facts of the case in brief are that in the Whether the reporters of the local papers may be allowed to see the Judgment? …2… year 1984 petitioner had left India to take up an assignment in the Islamic Republic of Iran and returned to India after four weeks. On account of prolonged absence of the petitioner from duty, his services were terminated with effect from 12.4.1988. In appeal filed by the petitioner, the order of termination was revoked by the government vide order dated 1.3.1989 Annexure A-1. The Director of Health Services vide order dated 28.6.1989 Annexure A-2 had regularized the period from 20.9.1984 to 20.10.1984 as earned leave for 31 days and period with effect from 21.10.1984 to 3.3.1989 as extra-ordinary leave for 1595 days. 3. The petitioner had filed OA No. 198 of 1989 in the erstwhile Tribunal, which was disposed of vide order dated 31.7.1989 Annexure A-3 with the observation that period of absence has been so regularized, it follows that there will be no break in the continuity of service of the petitioner. The past period of service, has, therefore, to be counted as service for all purposes including seniority. 4. The respondent No. 1 had complied the order dated 31.7.1989 and the petitioner was granted full benefits in his pay fixation and granted increments for the period 21.10.1984 to 4.3.1989 vide order dated 1.7.1992 Annexure A-4. The period from 21.10.1984 to 3.3.1989 has been thus regularized for all intends and purposes. On the request of petitioner, he was pre-maturely retired from service vide notification dated 1.6.2000 Annexure A-6 and was relieved from his duties on 30.6.2000 vide office order dated 28.6.2000 Annexure A-7. …3… 5. The respondent No. 2 vide letter dated 20.2.2001 Annexure A-8 had asked respondent No. 1 to supply entire record alongwith the service book for granting extra-ordinary leave with effect from 21.10.1984 to 3.3.1989 towards qualifying service of the petitioner. The respondent No.2 vide letter dated 7.11.2000 had sought clarification about the period with effect from 21.10.1984 to 3.3.1989. The petitioner had made representation to respondent No. 2 for counting his service for the period with effect from 21.10.1984 to 3.3.1989 for pensionary benefits vide Annexure A-9. The respondent No. 1 vide memo dated 1.6.2001 Annexure A-10 had rejected the representation and in these circumstances, the petitioner has filed the petition. 6. The further case of the petitioner is that vide letter dated 1.3.1989 Annexure A-1, it has been specifically ordered that the period of unauthorized absence of the petitioner from duties with effect from21.10.1984 to the date of joining his duties shall not be treated as period spent on duty and the period as such shall be regularized by way of granting him extra-ordinary leave i.e. without pay and allowances etc. In these circumstances, the period with effect from 21.10.1984 to 3.3.1989 has been regularized as extra-ordinary leave by a specific order of the authority which has passed the order of reinstatement. Therefore, the period with effect from 21.10.1984 to 3.3.1989 is required to be counted as qualifying service for the purpose of pensionary benefits. In addition, the Tribunal vide order dated 31.7.1989 has also observed that since the period of absence has been regularized, it follows that there will be no break in the …4… continuity of service of the petitioner. The past period of service is to be counted for all purposes including seniority. The period with effect from 21.10.1984 to 3.3.1989 is otherwise required to be counted as per FR 17-A for the purpose of pensionary benefits of the petitioner. The Himachal Pradesh Financial Rules 1971, Volume-I, Chapter VII, para-7.15 (e)(iii) provides that orders of competent authority regarding counting or otherwise of periods of extra-ordinary leave or periods preceding breaks in service as qualifying service for pension should be obtained invariably at the same time as the occasion arises and not later. Such orders should be noted in the service book. Unless otherwise shown in the service book, it will be presumed that the orders of competent authority have been obtained and the periods of extra-ordinary leave and periods preceding break in service will count for pension. The order dated 1.3.1989 Annexure A-1 has been modified by the respondents as per order dated 1.7.1992 Annexure A-4 and letter dated 31.8.1992 Annexure A-5 and it has been ordered that petitioner shall be entitled to all the benefits in accordance with FR 26. 7. The petition has been contested by respondent No. 1 by filing reply and has taken the plea that period of unauthorized absence of the petitioner from 21.10.1984 to 3.3.1989 was ordered not to be treated as period spent on duty and the period as such shall be required by way of granting him extra-ordinary leave i.e. without pay and allowances. This does not mean that the period as such has been ordered to be considered as qualifying service towards pension, which is clear from para-8 of Annexure A-1. In pursuance to …5… the order dated 31.7.1989 Annexure A-3 of the Tribunal, benefit has been granted to the petitioner. The representation of the petitioner was considered and rejected. The respondent No. 1 has prayed for dismissal of the petition. 8. The respondent No. 2 has also filed the reply and has stated that order dated 1.6.2001 Annexure A-10 has been passed by respondent No. 1 and not by respondent No.2. It has, however, been pleaded by respondent No. 2 that at the time of finalization of the pension case of the petitioner, the period of extra-ordinary leave with effect from 21.10.1984 to 4.3.1989 was not treated as qualifying service towards pensionary benefits because no entry was found recorded in the service book of the petitioner that the period will be counted for pensionary benefit while reporting the admissible ;pensionary benefits vide certificate and report dated 7.11.2000 Annexure R-1. The department has issued impugned order dated 1.6.2001 Annexure A-10 and rejected the case of the petitioner for counting the period of extra ordinary leave with effect from 21.10.1984 to 3.3.1989 for pensionary benefits. The respondent No.2 has further stated that in case respondent No. 1 reconsiders the matter and specific entry is recorded in the service book that the period of extra-ordinary leave will count towards pensionary benefits and case is resubmitted to respondent No. 2, the respondent No. 2 will allow the benefit by revising the pensionary benefits. The petitioner in rejoinder to the reply of respondent No.1 has reiterated his case. …6… 9. Heard and perused the record. The respondent No. 2 has taken the stand in the reply that in case respondent No. 1 reconsiders the matter and a specific entry is recorded in the service book of the petitioner that period of extra-ordinary leave will be counted towards pensionary benefits and resubmits the case to respondent No.2, then respondent No.2 will allow the benefit by revising the pensionary benefits. In other words, the respondent No. 2 has no objection and according to him the decision is required to be taken by respondent No.1. The order dated 1.3.1989 Annexure A-1 provides that Governor of Himachal Pradesh is pleased to order that period of unauthorized absence of the petitioner from duties from 21.10.1984 to the date of joining his duties shall not be treated as period spent on duty and the period as such shall be regularized by way of granting him extra-ordinary leave. The past service rendered up to 20.10.1984 will not be forfeited and shall be reckoned as service rendered by the purpose of pensionary benefits only. 10. The question is with respect to counting of period with effect from 21.10.1984 to 3.3.1989 for pensionary benefits of the petitioner. The ex-post facto sanction for grant of extra-ordinary leave for 1595 days with effect from 21.10.1984 to 3.3.1989 was granted in favour of the petitioner vide office order dated 28.6.1989 Annexure A-2. The erstwhile Tribunal vide order dated 31.7.1989 in OA No. 198 of 1989 has observed that since the period of absence has been regularized, it follows that there will be no break in the continuity of service of the petitioner. The past period of service is to be counted for all purposes including seniority. This indicates that …7… after grant of extra-ordinary leave the past service of the petitioner is to be counted towards service for all purposes including seniority. The order dated 31.7.1989 of the Tribunal was implemented vide order dated 1.7.1992 Annexure A-4. In these circumstances, no doubt is left that the period in between 21.10.1984 to 3.3.1989 is to be counted for pensionary benefits of the petitioner. 11. The case of the petitioner is that Himachal Pradesh Financial Rules, 1971 provides that orders of competent authority regarding counting or otherwise of periods of extra-ordinary leave or periods preceding breaks in service as qualifying service for pension should be obtained invariably at the same time as the occasion arises and not thereafter, such orders should be noted in the service book. In absence of an indication to this effect in the service book, it will be presumed that the orders of the competent authority have been obtained and the periods of extra-ordinary leave and periods preceding break in service will count for pension. This stand of the petitioner has not been disputed by respondent No.1. The respondent No. 2 has stated that if respondent No. 1 reconsiders the matter and a specific entry is recorded in the service book that period of extra-ordinary leave will count towards pensionary benefits and the case is resubmitted to respondent No.2, then respondent No. 2 will allow the benefit by revising the pensionary benefits. 12. It appears that relevant entry has not been made by respondent No. 1 in the service record of the petitioner for giving him benefit for the period from 21.10.1984 to 3.3.1989 for the purpose of pensionary benefits. The respondent No. 1 cannot take benefit of its …8… own wrong. The extra-ordinary leave of the petitioner for the period 21.10.1984 to 3.3.1989 has already been sanctioned. The Tribunal in its judgement dated 31.7.1989 has specifically observed that since the absence period has been regularized, there is no break in continuity of service of the petitioner and the past period of service shall be counted for all purposes including seniority. In light of above discussion, the petition is allowed, the period with effect from 21.10.1984 to 3.3.1989 is to be counted for pensionary benefits also of the petitioner and consequently the memo dated 1.6.2001 Annexure A-10 is quashed. The respondents are directed to count the period with effect from 21.10.1984 to 3.3.1989 for pensionary benefits of the petitioner. The petition is disposed of in the terms indicated above. No costs. July 20, 2009. ( Kuldip Singh ), (Hem) Judge.