V.K.Bist, J. -
(1.) PRESENT petition has been filed by the petitioner for the following reliefs:
I. Issue a writ, order or direction in the nature of Mandamus, quashing the order dated 18 -03 -2010 passed by the District Development Officer, Almora.
II. Issue a writ, order or direction in the nature of Mandamus, declaring a portion of the orders dated 07 -05 -2008 and 13 -06 -2003, passed by the Chief Development Officer, Almora as ineffective, inoperative and illegal to the extent, it provides that the period of 'sanctioned leave without pay' would be treated to be the period of interruption in service and would be inadmissible for determination of pension.
III. Issue a writ, order or direction in the nature of Mandamus, commanding the respondents to reckon entire period of sanctioned leave of the petitioner, for determining pension and granting voluntary retirement to the petitioner.
IV. Issue a writ, order or direction in the nature of Mandamus, commanding the respondents to grant voluntary retirement to the petitioner with full pension, on completion of 20 years service in the department.
V. Issue a writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
VI. Award cost of petition to the petitioner.
Brief facts of the case, as narrated in the writ petition, are that on 21 -03 -1990, the petitioner was initially appointed on the post of Junior Clerk (Junior Assistant) and was posted in the District Development office, Almora. Right from the date of initial appointment till 1991, the petitioner discharged the duties of her post continuously. In the year 1992, the petitioner felt acute pains in her back region below the shoulder and contacted the medical consultant at Almora, who advised the petitioner to take complete rest, as and when she feels pain in her back region. The husband of the petitioner is a businessman and is settled at Jaipur. In the year 1993, petitioner got her medically treated at Government Hospital, Jaipur, in the State of Rajasthan. From the mid of 1995, the petitioner felt herself unable to do her duties in the office of the respondent no. 3 due to backache. After 9 February 1998, petitioner resumed her duties at District Development Office, Almora. In February 1998, the petitioner was advised by the Doctor to get herself medically examined before the Regional Medical Board, Kumaun Mandal, Nainital. On 24 -02 -1998, petitioner got examined herself before the Regional Medical Board, Kumaun Mandal, Nainital. All the members of the Regional Medical Board, Kumaun Mandal, Nainital, after thoroughly examining and checking -up the petitioner, found the disease of the petitioner as genuine disease with which she was found to be suffering for long, and also found the Medical certificates issued from the Government Hospital, Jaipur, Rajasthan, as genuine and reliable. The Regional Medical Board, Kumaun Mandal, Nainital advised the departmental authorities to relax the entire period of medical treatment of petitioner as Medical leave since 1995 till 30 -10 -1997. Thereafter, in March 1998, petitioner again felt acute pains of 'backache' and she had to again go on medical leave and get herself medically treated from March 1998 to April 2000 at Government Hospital, Jaipur, Rajasthan, barring few days when she attended duties. Petitioner always submitted her medical certificates from time to time to the District Development Officer, Almora or to any other competent authority. Since it was found that the petitioner had been medically treated genuinely at Government Hospital, Jaipur, Rajasthan, for a long period of time in connection with her disease of 'backache', her absence from duty for a period of about 3 years 3 months and 13 days, during the period 21 -08 -1995 to 09 -04 -2000, was sanctioned as extraordinary leave by the department and was adjusted in service by the Chief Development Officer, Almora as 'leave without pay' vide letter/order dated 13 -06 -2003. Thereafter, w.e.f. 10 -04 -2000 till 14 -6 -2004, i.e. for a period of about 3 years & 8 months, the petitioner continuously served the department, barring the period of her maternity leave. On 15 -06 -2004, petitioner again felt acute pains of 'backache' and she went on medical leave w.e.f. 15 -06 -2004. She then, proceeded to Jaipur, Rajasthan for her medical treatment and got herself medically treated there, from June 2004 to June 2007. The period of absence of the petitioner from duty due to medical treatment w.e.f. 15 -06 -2004 to 11 -12 -2004 i.e. 180 days, was also regularized by the department, sanctioning extraordinary medical leave for the said period and the period of medical treatment w.e.f. 12 -12 -2004 to 12 -06 -2007 i.e. 2 years 6 months and 2 days, was also sanctioned by the department as extraordinary leave. Petitioner, being under medical treatment for a long period of time, is not completely cured and she often feels acute pains in her back region below shoulder, due to the disease of 'backache', and since the petitioner feels that she cannot properly serve the department as a Government servant to the satisfaction of the departmental authorities due to the said disease, she felt it necessary in the interest of the department as also in the interest of her health to seek voluntary retirement from her service. Therefore, the petitioner moved applications to the concerned departmental authorities on 02 -01 -2010, 19 -01 -2010 and 26 -04 -2010, so as to grant her voluntary retirement. The District Development officer, Almora in its order dated 18.03.2010, rejected the claim of the petitioner for voluntary retirement on the ground that since the period of sanctioned leave of 5 years 9 months and 15 days, is an interruption in service, the petitioner cannot be said to have completed 20 years qualifying service, and, therefore, petitioner cannot be granted voluntary retirement. Aggrieved thereby, the present writ petition has been filed by the petitioner.
(2.) LEARNED Counsel for the petitioner submitted that the period of absence of the petitioner from duty, due to her illness, from 14 -10 -2000 to June 2007, stands regularized and the service of the petitioner was never terminated by any departmental authority during the period of her absence from duty. He argued that since entire period of absence from duty has already been regularized by the competent authority of the department by sanctioning medical leave for the said period and the leave has been sanctioned without pay, the said period of sanctioned leave, requires to be added in total period of service of the petitioner, for purpose of granting voluntary retirement to her as also for reckoning the said period, for determination of pension. Learned Counsel for the petitioner submitted that under clause (c) of Rule 56 of the Fundamental Rules, contained in the Financial Hand Book, a right has been conferred on every Government employee to seek voluntary retirement after due notice to the department concerned, which is an absolute right, in -as -much as, an employee before seeking voluntary retirement, is not required to fulfill any pre -condition except either attaining 45 years of age or completing 20 years of service in the department. Therefore, after notice to the department, every Government employee is legally entitled to seek voluntary retirement. Clause (c) of Rule 56 of the Fundamental Rules is being reproduced below:
(c) -Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years.
Learned Counsel for the petitioner further submitted that if the respondent department refuses to grant voluntary retirement to the petitioner, it would not only be arbitrary action on the part of the respondent department, but would also be violative of clause (c) of Rule 56 of the Fundamental Rules. He submitted that vide impugned order dated 13.06.2003, the Chief development Officer, Almora, condoned the period of absence of the petitioner from duty on medical ground w.e.f. 21 -08 -1995 till 09 -04 -2000, totaling 3 years 3 months and 13 days, barring few periods of duties, and leave without pay was sanctioned for the said period. Again vide order dated 07.05.2008, the Chief Development officer, Almora again condoned the absence of the petitioner on medical ground for a further period of 180 days and 2 years 6 months & 2 days and sanctioned leave, and thus, adjusted it in service. Learned Counsel for the petitioner argued that natural consequence of condoning the period of absence from duty, would be to regularize the period of absence. He submitted that there is no justification on the part of the Chief Development officer, Almora or the District Development officer, Almora to treat the aforesaid period of sanctioned leave, as the period of interruption in service. After sanction of leave by the department for any particular period, the natural corollary follows, that the said particular period of absence stands regularized at the behest of the department. Therefore, the concept of interruption in service after sanction of leave, is totally foreign in the service jurisprudence. He argued that the observation of the Chief Development Officer, Almora, in the impugned order, to the effect that the period of sanctioned leave would not be reckonable for purpose of pension, is not sustainable in law, inasmuch as, any rule of pension does not contemplate that the period of extraordinary leave would not qualify for pension. He also submitted that it is a well known phenomenal fact that only 10 years qualifying service is required for admissibility of pension and not 20 years qualifying service. Therefore, the petitioner is entitled for pension on completion of 10 years qualifying service. He submitted that Article 408 of the Civil Services Regulations provides that all extraordinary leave shall qualify for pension, if it was granted (sanctioned). Article 408 of the Civil Services Regulations, is being reproduced below:
Article -408. Notwithstanding anything contained in Article 407, all periods of leave with allowances, except the leave refused under Fundamental Rules 86 or 86 -A, shall count as service.
Extraordinary leave shall qualify for pension, if it was granted -
(i) On medical certificate by competent medical authority.
(ii) due to his inability to join or re -join duty on account of civil commotion or
(iii) for prosecuting higher technical and scientific studies.
Learned Counsel for the petitioner relied on the Government Order no.lkekU; 3/2085 nl/207/77 dated 13 -12 -1977 issued by Government of Uttar Pradesh, which provides that the benefit of extraordinary leave would qualify for pension, if it is based on a certificate issued by competent authority. He contended that the period of medical treatment w.e.f. 21 -08 -1995 till 30 -10 -1997, has already been certified by the Medical Board and therefore, this period of extra ordinary leave already stands regularized and all other medical leave have also been granted/sanctioned by the department. In view of the above, it stands clarified that the entire period of extraordinary leave was regularized by the department as leave without pay. Therefore, any observations made by the departmental authorities in the impugned orders, treating the entire period of sanctioned leave as the period of interruption in service, not reckonable for pension or not qualifying for pension, are liable to be declared as illegal.
(3.) THE respondents filed Counter affidavit, in which they have submitted that the petitioner, in her entire tenure of service, remained absent from service for a period of 5 years 9 months and 15 days which has been treated as break in service, and therefore, the petitioner has not completed 20 years continuous qualifying service and thus, she is not entitled for voluntary retirement. It is also mentioned in the counter affidavit that since the petitioner is serving in the temporary employment in the department, and is not confirmed as yet, the writ petition filed by the petitioner deserves to be dismissed. It is also submitted in the counter affidavit, prayer for voluntary retirement could not be accepted, inasmuch as, she has not completed 20 years qualifying service and 45 years of age.;