State Of Uttarakhand & others vs Anupam Chaturvedi

Judgment

1. State has challenged the judgment rendered by Uttarakhand Public Services Tribunal on 15.01.2021, whereby claim petition filed by respondent, challenging an order dated 28.08.2019 passed by Additional Secretary, Medical Department, was partly allowed. Operative portion of the impugned judgment, rendered in Claim Petition No. 72/DB/2020, is reproduced below:- “20. The claim petition is partly allowed to the following extent: The entire service period after the regular appointment of the petitioner in 1994 till his retirement shall be counted for pension except the following periods.

01.09.1998 to 27.11.1998 02.12.1998 to 18.02.2000 11.04.2000 to 21.04.2000 24.04.2000 to 25.04.2000 28.04.2000 to 29.04.2000 01.06.2001 to 24.06.2005 (i) (ii) (iii) (iv) (v) (vi) The petitioner will not be entitled to any salary for the above periods and for the period 24.06.2005 to 15.05.2006. 1 The salary for other intermittent periods of his working, if not paid to him so far, shall be paid to him within a period of 90 days from the date of presentation of certified copy of this order. The prayer for regularization of petitioner’s ad hoc service from 15.12.1990 to 18.12.1994 is dismissed, as time barred.”

2. In the order dated 28.08.2019 passed by Additional Secretary, impugned in the claim petition, it was provided the period of respondent’s unauthorised absence from duty shall be treated as “break in service” and he shall not be entitled to any monetary or service benefits for the said period.

3. It is not in dispute that respondent was initially appointed as Medical Officer on ad hoc basis in erstwhile State of Uttar Pradesh w.e.f. 15.12.1990 and he was thereafter regularly appointed as Medical Officer in Provincial Medical & Health Service in the year 1994, after being selected by Uttar Pradesh Public Service Commission. It is also not in dispute that upon State Re-orgsnisation, he was finally allotted State of Uttarakhand.

4. Respondent remained unauthorisedly absent from duty on six different occasions between

01.09.1998 to 24.06.2005. Learned Tribunal relied upon a Government Order dated 13.12.1977 for partly

allowing the claim in aforesaid terms. Para 4 of said Government Order provides that in the absence of any contrary indication in the service record, interruption in service of a Government Servant, shall be deemed to have been condoned and the services rendered by him, prior to such interruption in service will be counted as 2 qualifying service, provided such interruption in service is not due to resignation, dismissal/removal or due to participation in a strike. The Government Order further provides that the duration of interruption in service or the period, during which a Government Servant did not perform duties, shall not be counted as qualifying service for pension under any circumstances.

5. In the aforesaid Government Order dated

13.12.1977, there is a reference to Article 422 of Civil Service Regulations, which is extracted below for ready reference:- “422. Interruptions in service either between to spells of permanent and temporary service or between a spell of temporary and permanent service or vice versa may be condoned by the Pension Sanctioning Authority subject to the following conditions, namely:- (1) the interruptions should have been caused by reasons beyond the control of the government concerned. (2) Service preceding the interruptions should not be less than of five year’s duration, and in cases where there are two or more such interruption, the total service, pensionary benefits in respect of which will be lost if the interruption are not condoned should not be less than five years, and (3) Interruptions should not be more than of one year’s duration and in cases where there are two or more such interruptions the total period of interruptions sought to be condoned, should not exceed one year.”

6. Learned Senior Counsel for the respondent submits that Civil Service Regulations is a compilation of orders/instructions issued by the State Government from time to time and they are not statutory in nature and the expression “Regulations” is a misnomer. Thus, 3 submits the provision for automatic condonation of period of interruption in service of a Government servant, made in para no. 4 of Government Order dated 13.12.1977 has to be read into Article 422 of the Civil Service Regulations.

7. Learned State Counsel did not dispute the said submission made by learned counsel for the respondent.

8. The opening sentence of para 4 of Government Order dated 13.12.1977 reveals that earlier, interruption in service between two periods if not condoned by the competent authority, then the service rendered by a Government Servant before such interruption in service, was not to be treated as qualifying service. However, the State Government then decided that in the absence of any contrary indication in the service record of the Government Servant, interruption in service between two periods, shall be deemed to be condoned and the service rendered by such Government Servant earlier, i.e. before interruption in service, shall be counted towards qualifying service for pension. Thus, by Government Order dated 13.12.1977, the rigour of Article 422 of Civil Service Regulations was relaxed and benefit of past services, except the period of interruption, was made available to the Government Servant, unless there was any contrary indication in the service record. 4

9. It is not the case of petitioner that there is any contrary indication in service record of the respondent which may disentitle him to the benefit of past services rendered as Medical Officer. State had admitted before learned Tribunal that Government Order dated 13.12.1977 is still applicable Uttarakhand, therefore, learned Tribunal was justified in holding that the entire service period, after regular appointment of respondent in 1994, till his retirement, shall be counted for pension, except the period during which he remained unauthorisedly absent from duty.

10. Regarding the period between 24.06.2005 to

15.05.2006, learned Tribunal held respondent made a request on 24.06.2005 to give joining to him and it took about eleven months for taking decision on such request; respondent ultimately was permitted to join duties on 15.05.2006, therefore, respondent although will not be entitled to salary for this period on the principle of “no work no pay”, however, the said period shall be taken as pensionable service. The said determination made by learned Tribunal also cannot be faulted, as respondent cannot be penalised for the inaction on the part of the authorities in taking decision on his request.

11. Learned State Counsel relies upon Rule 18 of the Financial Hand Book (Vol. II, Part II to IV), for challenging the judgment rendered by learned Tribunal. Rule 18 of the Financial Hand Book is extracted below:- “18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years’ continuous absence from duty elsewhere than on 5 foreign service in India, whether with or without leave, a the Government government servant ceases employment.” to be

12. The said Rule is not applicable to the facts of the case, as it provides that after five years continuous absence from duty, whether with or without leave, a Government Servant ceases to be in Government employment. In other words, a Government servant would lose lien on the post, if he remains continuously absent for a period of five years or more.

13. It is not the case of the petitioner that service of the respondent was terminated on account of unauthorised absence. Learned Tribunal has recorded a finding that the total period of absence of respondent from duty was less than five years. The State Government initiated disciplinary proceedings against respondent for his unauthorised absence from duty, but that was never done. Every time, respondent was permitted to resume duties, ignoring his conduct. Thus, reliance on Rule 18 is misplaced.

14. Perusal of the impugned judgment reveals that respondent had tendered resignation, but it was not accepted. Impugned judgment reveals respondent did not participate in any strike nor there was any contrary indication in his service record which may disentitle him to the benefit of policy contained in Government Order dated 13.12.1977. Thus, impugned judgment cannot be faulted. 6

15. In such view of the matter, we do not find any reason to interfere with the impugned judgment. The writ petition, thus, fails and is dismissed. The benefit, in terms of impugned judgment, shall be released to the respondent, within 90 days from the date of production of certified copy of this order. (Ashish Naithani, J.) (Manoj Kumar Tiwari, J.)

21.05.2025 Aswal 7