Allowed

Smt Suresh Kumari v. State Education Departmentors

Rajasthan HC4 Sept 2017CW/285/2015

Case brief

AI extract

What is this about?

The High Court held that treating the petitioner's period of not joining duty as extraordinary leave forfeiting pension was illegal. The Court directed the respondents to count the period for pension, pay arrears with interest at 9%, and release revised gratuity.

What did the court decide?

Order dated 28/03/2012 quashed; period counted for pension; salary with 9% interest paid; revised pension and gratuity released.

Smt Suresh Kumari Vs State Education… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 285 / 2015

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Smt Suresh Kumari Sharma W/o Shri Rajendra Kumar Sharma, aged about 64 years, R/o 533-A, Gali No. 4, Devi Nagar, New Sanganer Road, Sodala, Jaipur (Raj.)

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----Petitioner

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Versus

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State of Rajasthan through its Secretary Education Department, Secretariat, Jaipur.

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Director, Elementary Education, Rajasthan, Bikaner.

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District Education officer, Elementary Education, Bharatpur.

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Block Elementary Education, Bayana, Distt. Bharatpur (Raj.)

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Director, Pension and Pensioners Welfare Department, Jyoti Nagar, Jaipur (Raj.)

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----Respondents

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For Petitioner(s) : Mr. N.K.Singhal

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For Respondent(s) : Mr. Parikshit Singh, ADD.G.C

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment / Order

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04/09/2017

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The petitioner has approached this Court third time for redressal of his grievance.

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The petitioner was holding the post of Headmaster at Upper Primary School, Malipura, Bayana, District Bharatpur in the year 1998. She proceeded on medical leave on 29^th July, 1998 and rejoined on 14.10.1998. Leave for this period was sanctioned by the respondents vide order dated 28^th March, 2008 from 14.10.1998 onward. Counsel for the petitioner has taken this Court to the order passed by the Division Bench in D.B. Special Appeal (Writ) No.448/2001 preferred by the petitioner, dated 20^th

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(2 of 6)

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[CW-285/2015]

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August, 2002, wherein following order was passed:-

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“In the facts and circumstances of the case. We hereby order that should the appellant Smt. Suresh Kumari Sharma reports before the District Education Officer, Elementary, Bharatpur even now within a period of two weeks from today, the concerned District Education officer Elementary, Bharatpur will now give further posting orders to her immediately without any delay. The period which has been spent so far after the transfer order i.e. the period for which she has not been allowed to join at either of the places as alleged by her, shall be looked into and dealt with by the concerned District Education Officer Elementary, Bharatpur in accordance with law and depending upon his finding as to whether she was at fault or not in the matter of joining or not joining at either of the places, appropriate orders shall be passed in accordance with rules by him for the intervening period in question”

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It has been submitted that in terms of the order passed by

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the Division Bench, the petitioner joined her duties on 11.9.2002 at Government Girls Upper Primary School, Mehalpur Chura, Bharatpur. The petitioner submitted an application seeking voluntary retirement on 2^nd July, 2008. After expiry of period of three months, the petitioner stood retired with effect from 02.10.2008. She submitted documents for grant of pension and other retiral benefits, but no order came to be passed and she had again to file S.B. Civil Writ Petition No.1892/2009, wherein it was declared that the petitioner stood retired with effect from 02.10.2008 and no disciplinary action can be initiated against her. This Court vide its order dated 27^th August, 2010 allowed the writ petition, the operative part whereof reads thus,

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“Consequently, writ petition succeeds and is hereby allowed. It is declared that petitioner stood retired from service w.e.f. 02/10/2008 by fiction of law and therefore, disciplinary action under charge sheet dt.21/07/2009 (Ann.R/10) can not be initiated against her and accordingly memo of charge sheet and the proceedings if initiated thereafter are quashed & set aside. As a consequence whereof (supra), petitioner

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(3 of 6)

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[CW-285/2015]

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will be entitled for retiral dues (pension as well as gratuity etc. as admissible under law) taking note of date of her voluntary retirement w.e.f.02/10/2008 alongwith interest @9% per annum as admissible U/r 89 of Pension Rules, 1996. All exercise to comply with aforesaid direction be completed within three months from today.”

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The petitioner has again knocked the doors of justice as another order has been passed now by the respondent on 28^th March, 2012 whereby the period from 29^th July, 1998 to 10^th September, 2002 has been treated as extra-ordinary leave with further directions that the said period would not be counted for the purpose of pension.

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Learned counsel for the petitioner submits that the said order, apart from having been passed without giving any opportunity of hearing to the petitioner, is illegal and contrary to the provision of Section 26(2) of the Rajasthan Civil Services (Pension) Rules, 1996. It is submitted that the period from 29^th July, 1998 to 10^th September, 2002 had been considered and salary for the said period had been released. The issue is only relating to the period from the date the petitioner was not being allowed to join till the date she was allowed to join as per directions issued by the Division Bench. The said period was required to be regularized in terms of the Court’s order and the same could not be treated as absence without leave and therefore the said period could not be treated as dies non for the purpose of increment, leave encashment and pension.

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Per contra, learned counsel for the respondent submits that action is in consonance with law and no interference is required to

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(4 of 6)

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[CW-285/2015]

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be made by this Court. It is contended that the period for which the petitioner did not join, was to be treated as period spent without leave and thus it was a voluntary absence on the part of the petitioner for which benefit could not be granted to the petitioner for granting increment, leave encashment and pension and that could be counted as with the only purpose to say the forfeiture of past service.

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Having noted above, it would be useful to quote Rule 26(2) of the Pension Rules, 1996 as under:

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“Notwithstanding anything contained in sub-rule(1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.

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Government of Rajasthan’s Decisions

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Treatment of willful absence from duty: --In accordance with Government of Rajasthan’s Decision NO.1 below Rule 86 of Rajasthan Service Rules, willful absence from duty, even though not covered by grant of leave shall have to be treated as “dies non” for all purposes, viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its power under rule 23(2) of R.C.S.(Pension) Rules to treat the period as extra ordinary leave, the entire past service will stand forfeited.

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The power under this rule to commute retrospectively periods of absence without leave into extra ordinary leave is absolute, the purpose of the rule being merely to obviate for purposes of pension, the forfeiture of past service.”

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A careful look at the aforesaid Rule shows that the power has to commute retrospectively with the view to allow pension for the period prior to that during for which concerned person has remained absent without leave. It is essentially in relation to Rules86 of the Rajasthan Civil Service Rules, 1951 where there is a provision for forfeiture of past service.

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(5 of 6)

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[CW-285/2015]

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A look at the judgment passed by the Division Bench(supra). It is apparent that the respondents were required to take a decision and hold whether the intervening period spent by the petitioner, after the transfer order and before joining as per directions of the Division Bench, was deliberate on her part or on account of fault of the Department, but, I find that no decision in terms of the directions issued by the Division Bench had been taken by the respondent. The contention of the learned counsel for the respondent that the order dated 28^th March, 2012, was decision in terms of the order passed by the Division Bench is not acceptable. Apparently the order seeks to treat the said period to be absent from duty willfully. If the said contention of the respondent is accepted, the order passed by the Division Bench would lose its significance and therefore the order passed by the respondent cannot be allowed to be sustained. As during the said period the petitioner was not allowed to join, it cannot be treated as willful absence from duty. Even if the said period is treated as extra-ordinary leave, the same would not come within of Rule 26(2) of the Rules of 1996 and has to be counted for the purpose of pension. Accordingly, the order passed by the respondents dated 28^th March, 2012 is held to be illegal with further directions to treat the said period as countable for the purpose of pension and retiral benefits.

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Accordingly, apart of the salary which was paid to the petitioner for the intervening period for which already leave had been granted. The respondents are directed to pay to the petitioner the salary for the aforesaid period along with interest

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(6 of 6)

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[CW-285/2015]

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@9% per annum. The said period of service be counted now for pension purpose and revised pension and the gratuity benefit shall be released, The arrears thereto shall be calculated within a period

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of three months.

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The writ petition is accordingly allowed.

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No costs.

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(SANJEEV PRAKASH SHARMA)J.

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Anu/49

Smt Suresh Kumari v. State Education Departmentors

Case brief

What is this about?

What did the court decide?

Smt Suresh Kumari v. State Education Departmentors

Case brief

What is this about?

What did the court decide?

What the court decided

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