Mohammad Rafiq, J. - (1.) Petitioner is aggrieved by the order dated 1/1/1996 by which, earlier order dated 18/9/1992 has been superseded and it has been directed that husband of the Petitioner shall be deemed to have voluntary retired from service w.e.f. 10/7/1992 and that the period of service from 25/1/1984 to 10/7/1992 shall not be liable to be counted for the purpose of pensionary benefits.
(2.) Contention of Shri D.K. Bhardwaj, learned Counsel for Petitioner is that Petitioner's husband was appointed as Senior Teacher in the Education Department, Government of Rajasthan vide order dated 31/7/1961. While in service with the Respondents, he became mentally ill in 1984 and was not in a position to render service. An application was made by his wife on his behalf that he may be granted voluntary retirement but for quite some time, the application was not processed. Ultimately, Joint Director Education Department vide order dated 18/9/1992 accepted the request of the Petitioner by retiring her husband on medical ground under Rules 228 & 229 of the Rajasthan Service Rules, 1951 (shall hereinafter be referred as "RSR") w.e.f. 25/1/1984 and directed that he shall be entitled to pensionary benefits. However, when this order was not implemented for a petty long time, Petitioner preferred writ petition bearing S.B. Civil Writ Petition No. 1330/1994. Notices of that writ petition were issued and served upon the Respondents. During pendency of that writ petition, Respondents vide impugned -order dated 1/1/1996 revoked the earlier order dated 18/9/1992 as indicated above. Learned Counsel for Petitioner has argued that by the impugned order dated 1/1/1996, Respondents have now illegally deprived the Petitioner's husband from entitlement to receive pensionary benefits payable to him. If the period of 25/1/1984 to 10/7/1992 would have been counted towards pensionary benefits, husband of the Petitioner would have been entitled to receive more amount of pension. While passing the impugned order, no notice or opportunity of hearing was given to the Petitioner. This order is absolutely illegal. Even otherwise, so long formal order of retirement is not passed, a government servant is deemed to be in service. Absence of the Petitioner's husband from duties was not owing to any fault on his part but due to the compelling circumstances beyond his control. It is therefore prayed that writ petition be allowed and part of the impugned -order to the extent it directed that the period w.e.f. 25/1/1984 to 10/7/1992 shall not be counted as part of service for pension be quashed and set -aside.
(3.) Shri Gajanand Manav Mishra, learned Deputy Government Counsel has opposed the writ petition and submitted that government has itself adopted a very liberal approach in passing the impugned -order by granting SBCWP No. 342/03. voluntary retirement to the husband of the Petitioner under Rule 244(1) of RSR w.e.f. 10/7/1992 but in doing so, period of absence w.e.f. 25/1/1984 to 10/7/1992 has been held to be not countable towards the pensionary benefits because he did not at all render service. Therefore no notice was required to be served upon him. Further, the earlier order dated 18/9/1992 was not in conformity with the rules and therefore subsequent order dated 1/1/1996 had to be passed under the correct rule. It is therefore prayed that the writ petition be dismissed.;