D.P.GUPTA, J. - (1.) THE petitioner was working on the post of District Medical and Health Officer, Barmer on November 7, 1968 when he attained the age of 55 years. Much prior to the aforesaid date, the petitioner, Dr. Kalla by his letter dated December 15, 1967 (Ex. R.2) brought it to the notice of the Director of Medical and Health Services, Rajasthan, Jaipur that he would attain the age of 55 years on November 7, 1968 and that proper action may be taken in that matter. The Director, Medical and Health Services, Rajasthan, by his letter dated July 26, 1968 (Ex. R.4) recommended to the State Government that the petitioner may be allowed to continue in service upto the age of 58 years as he was mentally and physically fit to discharge his duties. In view of the recommendation made by the Director, Medical and Health Services, the petitioner continued to perform the duties and functions of his office of District Medical and health Officer, in anticipation of Government sanction. However, it must be observed that the State Government exhibited gross negligence and inaction in the matter and no decision was conveyed for almost a year Then on July 21, 1969, the Director of Medical and Health Services again sent a reminder to the State Government and requested that necessary Government sanction may be conveyed in the matter M the petitioner was pressing hard for the same.
(2.) THE State Government by its order dated July 13, 1973 (Ex. 1) purported to retire the petitioner retrospectively with effect from November 8, 1968 on his attaining the age of superannuation, It is difficult for a person of ordinary commonsense to understand as to how on July 13, 1970 the petition could have been retired with effect from November 8, 1968? Moreover, it is beyond imagination as to what prevented the State Government from taking a decision about the retirement of the petitioner as soon as he attained the superannuation age on November 8, 1968, particularly when the petitioner was agitating the question ever since December 15, 1967. The story does not end here, because on February 10, 1970, earlier to the order dated July 13, 1970 was passed, the State Government extended the tenure of service of the petitioner by its order dated February 10, 1970 upto February 28, 1971. It is difficult to understand as to why the order dated July 13, 1970 was, passed retiring the petitioner from November 8, 1968 on attaining the age of superannuation. However, on receiving the order of the State Government dated July 13, 1970, the petitioner was asked to hand over charge of his post and on August 3, 1970, the petitioner applied for leave, probably because he was not allowed to continue to work any longer. No order was passed sanctioning the leave to the petitioner or refusing the same. But then sense seems to have prevailed and the State Government probably realised its mistake and by the order dated January 5, 1971, the earlier order dated July 13, 1970 was superceded and sanction for extention of the tenture of service of the petitioner from November 8, 1968 to February 28, 1971 was accorded. The petitioner was ultimately retired from Government service with effect from March 1, 1971. Thus, in ultimate analysis, it appears that the petitioner's service was continued beyond the age of super -animation and he was accorded extension in service from November 8, 1961 upto February 28, 1971. But then the question arose as to how should the period from August 3, 1970 to January 5, 1971 during which the petitioner was not allowed to work should be considered? The respondents took the view that as the petitioner did not apply for any leave prior to the date of his attaining the age of superannuation and there being no refusal of any such leave preparatory to retirement, as envisaged under the second proviso to Rule 89, the petitioner was only entitled to leave which accrued due to him during the period of extension of service, because leave which might have been due to the petitioner prior to November 7, 1968 had lapsed after the date of his attaining the age of compulsory retirement. The Director of Medical and Health Services was of the view that in the case of the petitioner, the entire period from August 3, 1970 to Jan. 5, 1971 should be considered as privilege leave because leave already due to the petitioner prior to the date of his compulsory retirement should be considered to have been carried forward and the petitioner should be allowed to avail of the same along with the privilege leave earned by him during the period of extension in service Thus a cording to the view of the Director of Medical and Health Services, the entire period of extension could be availed of by him during the period of extension of his service. The Accountant General, however, did not agree with this view and on a strict interpretation of Rule 89 of the Rajasthan Service Rules, he took the view that the petitioner was only entitled to privilege leave which he earned during the period of extension of service, as the leave due to him earlier had lapsed on attaining the age of superannuation on the aforesaid basis, the Director of Medical and Health Services by his older dated May 17, 1971 (Ex. 3) intimated the petitioner that 57 days privilege leave from August 3, 1970 to September 28, 1970 was admissible to him and the remaining period from September 29, 1970 to January 5, 1971, was considered partly as half -pay leave and partly extraordinary leave.
(3.) THE submission of the learned Counsel for the petitioner in this writ petition is that the petitioner continued to work on his post after attaining the age of superannuation, in view of the fact that the Director of Medical and Health Services had recommended grant of extension to him, in accordance with the Government order dated September 25, 1963 and that the State Government by its order dated February 10, 1970 actually extended the period of petitioner's employment upto February 28, 1971. But the petitioner was not allowed to perform the dutier of his office with effect from August 3, 1970 for no fault on his part because of the order of the state Government dated July 13, 1970 until the same was superseded by the order dated January 5, 1970, when the petitioner rejoined his duties and continued to work on his post of District Medical and Health Officer upto February 28, 1971. His contention is that in view of the aforesaid facts, the entire period from August 3, 1970 to January 5, 1971 should be treated as leave due to the petitioner and in these circumstances the leave earned by the petitioner prior to November 8, 1968 could not be treated to have lapsed Mr. H.N. Calla appearing for the respondents urged that the interpretation put by the Accountant General is correct.;