Partly allowed

State of Rajasthan v. Smt Suresh Kumari W/O Shri Rajendra Kumar Sharma

Rajasthan HC2 Apr 2019SAW/848/2018

Case brief

AI extract

What is this about?

The Division Bench allowed the Special Appeal in part, upholding the direction to count the absent period (29.07.1998 to 10.09.2002) for qualifying pension service but rejecting the claim for salary payment during that period, while affirming salary entitlement for the initial 77-day leave gap.

What did the court decide?

The period 29.07.1998 to 10.09.2002 to be counted for pension/gratuity; salary due only for 77 days (29.07.1998 to 13.10.1998); order denying count for pension set aside.

State of Rajasthan Vs Smt Suresh Kumari… — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal (Writ) No.848/2018

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With

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D.B. Civil Misc. Stay Application No.12804/2018

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

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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, District Bharatpur

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----Appellants

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Versus

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Smt Suresh Kumari 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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Director, Pension And Pensioners Welfare Department, Jyoti Nagar, Jaipur (Raj.)

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----Respondents

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For Appellant(s) : Mr. C.L. Saini, Additional Advocate General For Respondent(s) : Mr. N.K. Singhal

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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02/04/2019

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This special appeal is directed against the judgment of learned single Judge dated 04.09.2017, whereby the writ petition filed by the petitioner has been allowed in the following terms:

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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

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(2 of 5)

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[SAW-848/2018]

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interest @ 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 of three months.”

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The petitioner joined the services of the appellant department on

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the post of Teacher Gr.III on 18.03.1975 and later on was promoted as Headmistress and posted in the Government Upper Primary School, Malipura, Bayana, District Bharatpur, from where she proceeded on medical leaves from 29.07.1998 to 13.10.1998. There were holidays on account of ‘diwali’ festival from 14.10.1998 to 25.10.1998. When she went to rejoin the duties in the School on 26.10.1998, she was told that she has been transferred to Senior Secondary School, Raini, District Alwar. According to the writ-petitioner, when she went to join her duties pursuant to transfer order she was told that owing to enforcement of Model Code of Conduct, she cannot be allowed to join. Aggrieved thereby, she, by way of an application, approached the Rajasthan Civil Services Appellate Tribunal, which dismissed her application. Thereafter, the writ-petitioner filed Writ Petition before this court, which was also dismissed. It is thereafter that the writ-petitioner approached the Division Bench of this court by filing Special Appeal (Writ) No.448/2001, which disposed of the same vide order dated 20.08.2002 by passing following:-

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“In the facts and circumstances of the case, we hereby order that should the appellant Smt. Suresh Kumari Sharma report 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

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(3 of 5)

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[SAW-848/2018]

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orders shall be passed in accordance with rules by him for the intervening period in question.”

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Pursuant to the order dated 20.08.2002 of the Division Bench of this Court, the writ-petitioner was allowed to join the duties on 22.09.2002 at Government Senior Secondary School, Malpura, District Tonk. Thereafter, the writ-petitioner applied for voluntary retirement on 02.07.2008 seeking the same on expiry of three months, i.e., 02.10.2008. Even on 01.10.2008, she was not granted ‘no dues certificate’ and thus she submitted an application on 03.10.2008 that since three months period had already expired, she stood retired from service with effect from 02.10.2008 and prayed for release of her retiral dues admissible under the pension rules, however, no action was taken by the respondents. The writ-petitioner, therefore, filed S.B. Civil Writ Petition No.1892/2009, which was allowed by this court vide order dated 27.08.2010, 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 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. Co costs.”

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The writ-petitioner then approached this court by filing S.B. Civil Writ Petition No.285/2015 as another order was passed by the appellant-department on 28.03.2012 whereby the period from 29.07.1998 to 10.09.2002 has been treated as extraordinary leave with further directions that the said period would not be counted for

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(4 of 5)

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[SAW-848/2018]

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pension purpose. It is in this background that the learned Single Judge has allowed the writ petition in the terms indicated above.

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We have heard learned counsel for the parties and perused the material on record.

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Even though this court by order dated 20.08.2002 in D.B. Civil Special Appeal (Writ) No.448/2001 directed the appellant-department to determine whether or not the writ-petitioner was at fault in the matter of joining or not joining at either of places when she was transferred and gave a finding thereabout but the appellantdepartment sit over the matter and it is only when she filed the writ petition after voluntary retirement that they issued a charge-sheet dated 21.07.2009 (Annexure-R/10) against her for willful absence. This court had to therefore by judgment dated 27.08.2010 quash the charge-sheet. The order passed by the respondent on 28.03.2012 now seeks to even deny counting the period from 29.07.1998 to 10.09.2002, i.e., 1506 days, towards qualifying period of service for grant of pension and other retiral benefits. The learned Single Judge taking note of the Rule 26(2) of the Rajasthan Civil Service Rules (Pension) Rules, 1996 has directed that the aforesaid period of service ought to be counted towards the pensionable service and has further directed that apart from payment of salary of 77 days, i.e., from 29.07.1998 to 13.10.1998, she ought to be also paid salary for the period from 29.07.1998 to 10.09.2002 together with interest at the rate of 9% per annum and also to count the same for the purpose of pension.

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While we are inclined to uphold the direction of the learned Single Judge to pay to the writ-petitioner the salary and other emoluments for the period of 77 days from 29.07.1998 to 13.10.1998,

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(5 of 5)

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[SAW-848/2018]

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we are not persuaded to uphold that part of the direction wherein the appellant-department has been directed to pay the actual salary for the period of absence from 29.07.1998 to 10.09.2002 but at the same time we are of the view that this period cannot be excluded for the purpose of counting total qualifying period of service for grant of pension, gratuity and other retiral benefits and even for payment of increments.

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The appeal is therefore allowed in part. The appellants are required to treat the aforesaid period from 29.07.1998 to 10.09.2002 as part of service for the purpose of counting the qualifying period of service considering that they themselves have in the order 28.03.2002 regularized the same by converting such period by sanctioning extraordinary leaves for 1506 days. The part of the direction in the aforesaid order dated 28.03.2012 not to count the said period as qualifying service for grant of pension, gratuity and other retiral benefits, is set aside. The writ-petitioner is held entitled to receive payment of salary for the period of 77 days from 29.07.1998 to 13.10.1998 but not for the period from 29.07.1998 to 10.09.2002, however, it be counted towards the period of qualifying service for the purpose of the pension, gratuity and other retiral benefits, and the same be paid to her within a period of three months.

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This also disposes of stay application.

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(GOVERDHAN BARDHAR),J

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(MOHAMMAD RAFIQ),J

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//Jaiman//63

State of Rajasthan v. Smt Suresh Kumari W/O Shri Rajendra Kumar Sharma

Case brief

What is this about?

What did the court decide?

State of Rajasthan v. Smt Suresh Kumari W/O Shri Rajendra Kumar Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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