KANA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE short question which arises for consideration in this writ petition is as to whether the petitioner had completed 25 years of qualifying service', within the meaning of Sub -rule (2) of Rule 244 of the Rajasthan Service Rules (hereinafter referred to as 'the Rules'), on the date when he was compulsorily retired from Government Service. The brief facts which have given rise to this question and which are not in dispute between the parties are the petitioner was appointed as a Nakedar in the Excise and Customs Department of the State Government on January 22, 1948. His services were subsequently transferred to the Irrigation Department where he continued to serve for some time but on March 3, 1958 he resigned from his post. Subsequently, he applied again for an appointment and on December 26, 1958, he was appointed as a Patwari in the Revenue Department of the State. Thereafter, on the request of the petitioner himself, the State Government condoned the interruption in his service from March 4, 1958 to December 25, 1958 under Rule 212 of the Rules by an order dated July 3, 1967 and an entry in respect of the condonation of break in the service of the petitioner was made in his service book.

(2.) ACCORDING to the petitioner, the period of his 'qualifying service for the purposes of Rule 244(2) of the Rules, should be counted from December 26, 1958 when he was employed 'afresh' as a Patwari in the Revenue Department of the State. But the case of the respondents is that the 'qualifying service' of the petitioner should be counted from January 22, 1948 when he was initially employed in the service of the State and the subsequent appointment of the petitioner as a Patwari did not give rise to a new set vice, because the interruption in the service of the petitioner was condoned by the State Government under Rule 212, at the request of the petitioner himself. If the petitioner's 'qualifying service' is counted with effect' from December 26, 1958 there can be no doubt that he did not complete 25 years,' qualifying service' on the date when the notice of compulsory retirement' under Rule 244(2) was served upon him and in that event, the compulsory retirement of the petitioner cannot be upheld But in case the 'qualifying service' of the petitioner is to be counted with effect from the date, of his initial employment under the State Government, namely, from January 22, 1948 and his service is considered as a continuous one during the entire period, hen the contention of the learned Counsel for the petitioner would be untenable.

(3.) THE argument of the learned Counsel for the petitioner is that on account of the order passed under passed under Rule 212, only the past service rendered by the petitioner could be revived and his past service could be counted as 'qualifying service' but the period from March 4, 1958 to December 25, 1958 'when the petitioner' was not in'service' at all should not' be counted towards qualifying service. It is not possible to accept this contention of the learned Counsel because of the simple reason that once the interruption in the service of the petitioner was condoned under Rule 212, there was only ore continuous service as if there was no break in his service. Consequently, it could not thereafter be said that the petitioner was not in set vice of the State Government during the intervening period. As a matter of fact, the effect of condonation of interruption in the service of the petitioner is that the entire period, beginning from the date of first appointment of the petitioner, should be counted towards 'qualifying service' for purpose of pension as well as for purposes of Rule 244(2). 'The fact that the petitioner was not paid salary or emoluments for the period during which he was not actually in service is not material so far as the question of counting the 'qualifying service' of the petitioner is concerned. I am firm of the view that after the break in service was condoned by the State Government, under Rule 212, the service rendered by the petitioner cannot be compartmentalised The period -of service rendered by him upto the date of his resignation and the period of his Service after his reappointment cannot Be kept as separate and distinct services. But on account of the order of condonation of break in his 'Beryice', both these periods were linked together to 'one' and continuous service, which is only' possible when the period of break from March 4, 1958 to December 25/1958 was considered as part of his 'qualifying service'. It was this period, the break in respect of which was actually condoned. Thereafter by a fiction of law the petitioner should be considered to have, been in Government service during the aforesaid period, in which he did not actually render any service. The condonation of interruption cannot have any other effect. Counting the petitioner's qualifying' service with effect from January 22, 1948, there, is no doubt that he completed more than 25 years' qualifying service on May 16, 1973 where three month's' notice under Rule 244(2) of the Rules was served upon the petitioner. The contention of the learned Counsel, therefore, cannot be accepted.