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Kishan Chand Kalla Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1199 of 1973
Judge
Reported in1978WLN(UC)45
AppellantKishan Chand Kalla
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Excerpt:
.....account of erroneous decision of government--held, petitioner cannot be penalized for mistake of state government and cannot be deprived of his salary.;as the petitioner was prevented from performing the duties of his office on account of the order of the state government dated july 13, 1970 which was later on found to be erroneous, the petitioner could not be made to suffer the consequences emerging from the unlawful action of the state government in ordering his compulsory retirement retrospectively with effect from november 8, 1968 by the order dated july 13, 1970 although the petitioner's service already stood extended upto february 2(sic), 1971 by the order on the state government dated february 10, 1970. i would not be proper to penalise the petitioner for the non performance of..........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.....
Judgment:

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.

3. 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.

4. 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 & 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.

5. I have considered the rival contentions. It no doubt appears from the facts narrated above that the petitioner attained the age of superannuation, namely the age of 55 years on November 7, 1968 and that thereafter he was allowed to continue to work on account of the fact that the Director of Medical and Health services had recommended to the State Government that the petitioner should be continued in Government service and should be granted extension in view of the Government order dated September February 10, 1970, the services of the petitioner was, as a matter of fact, extended upto February 28, 1971 In the face of this order dated February, 10, 1970, the order dated July 13, 1970 purporting to retire the petitioner from service with effect from November 8, 1968 could not have beer, passed and it was on that basis that the said order dated July 13, 1970 was later on superseded by the subsequent order dated January 5, 1970. It appears that on account of the order dated July 13, 1970 the petitioner was not allowed to perform the duties of his office from August 3, 1970 to January 5, 1971 and as such he applied for leave. As no orders were passed on his application, the same should be deemed to have been refused. Ultimately, the mistake was realised and by the subsequent order dated January 5, 1971, the earlier order dated July 13, 1970 was superseded and the tenure of employment of the petitioner as District Medical and Health Officer was extended for the entire period from November 8, 1968 to February 28, 1971, It is, therefore, apparent that the petitioner's failure to perform his duties during the period from August 3, 1970 to January 5, 1971 was not because of his own volition but was brought about on account of the order of the State Government dated July 3, 1970 which was subsequent found to be erroneous and was superseded by the order dated January 5, 1971. How coule the petitioner be blamed for his absence from duty for the aforesaid period from August 3, 1970? The petitioner could only resume his duties on January 5, 1971 when the matter was clarified by the State Government and the tenure of his service was extended from November 8, 1968 to February 8, 1971.

6. In my view, as the petitioner was prevented from performing the duties of his office on account of the order of the State Government dated July 13, 1970 which was latter on found to be erroneous, the petitioner could not be made to suffer the consequences emerging from the unlawful action of the State Government in ordering his compulsory retirement retrospectively with effect from November 8, 1968 by the order dated July 13, 1970, although the petitioner's service already stood extended upto February 10, 1971 by the order of the State Government dated February 10, 1970. It would not be proper to penalise the petitioner for the non-performance of his duties during the period from August 3, 1970 to January 5, 1971 as he was not at fault in this respect. It appears to me that inspite of the repeated requests of the petitioner and the recommendation of the Director of Medical and Health Services, the indecision of the State Government in the matter of extension of the to vice of the petitioner was not only abnormal but also strange. As a matter of fact, the State Government took more than a year and a half in deriding the question as to whether extension should be granted to the petitioner or not and even after that decision was actually arrived at and was conveyed by the order dated February 10, 1970 how could the State Government proceed to pass the order dated July 13, 1970 in utter ignorance of its earlier order dated February 10, 1970? Thus, the State Government is wholly responsible for the mess which was created by it with the result that the petitioner could not for form the duties of his office from August 3, 1970 to January 5, 1971. In my view, in the aforesaid circumstances, the petitioner could not be deprived of the salary and other emoluments for the period during which he was not allowed to perform the duties of his office for reasons beyond his control and for which the State Government was entirely responsible.

7. Moreover, looking to the provisions of Rule 89, the respondents may be right in taking the view that the leave due to Government servant earlier to his attaining the age of superannuation could not be carried forward after the date of his compulsory retirement, unless the Government servant concerned had, before the date of his compulsory retirement formally applied for leave and the same had been refused, as envisaged by the first proviso to Rule 89. The same may also be true in the case when the service of a Government servant has been extended in the interest of public service beyond the elate of his compulsory retirement. But then the Government of Rajasthan's decisions appearing below Rule 89 show that the State Government has made an exception to the aforesaid general rule, in the case of employees who were granted extension of service after they had attained the age of superannuation upto February 28, 1971 or upto the date on which they attained the age of 58 years, whichever was earlier. In case of such Government servants, the decisions of the State Government appearing at Nos. 5 and 6 below Rule 89 would be applicable. The relevant portion of decision No 5 runs as under:.The matter has been examined and it is decided that as in their case the extension of service is automatic upto February 28, 1971 or upto the date on which they attain the age of 58 years, which ever is earlier, the amount of privilege leave as may be due before the date of superannuation may be carried forward beyond the date of superannuation and it may be availed of during the period of extension together with the privilege leave due in respect of the period of extension subject to the limits prescribed under Rule 91 of the Rajasthan Service Rules. However, the leave so carried forward and leave earned furing the period of extension will not be admissible automatically at the end of the period of extension but will be allowed only when it, has been denied in public interest.

8. Thus, on account of the automatic extension of the service of the Government servant falling within the aforesaid category upto February 28, 1971, or upto the date when he attained the age of 38 years which ever was earlier, the question of filing an earlier application for leave by him or the refusal thereof could not arise. On the other hand the State Government decided that the amount of privilege leave which may be due to such Government servant before the date of superannuation and may be availed of by him during the period of extension, together with the privilege leave which might have become due in respect of the period of extension, subject to the limit prescribed in Rule 91 of the Rajasthan Service Rules. Decision No. 6 of the State Government is by way of modification of the earlier decision No. 5 and specifically pertains to the case of medical officers. The relevant part of decision No. 6 appearing below Rule 89 which is applicable to the case of the petitioner runs as under: .In case orders of extension are issued after the officer has attained the age of superannuation and the leave applied for is also refused then the period between the date of attaining the age of superannuation and the date prior to the date of actually resuming duty on account of grant of extension in service shall be regularised by grant of refused leave of if no leave is due then extra ordinary leave will be granted.

9. This decision appears to be in consonance with equity and fair play, in as much as in such a case where the order of extension is passed subsequent to the Government servant attaining the age of superannuation, the period which elapsed between the date when the Government servant concerned attained the age of superannuation & the date when he was allowed to resume duty on account of the grant of extension in service must be regularised, because otherwise the grant of extension would not make the service of the Government servant concerned continuous with the service rendered by him upto the date of his compulsory retirement. In the instant case, the petitioner was allowed to resume duty on January 5, 1971 when the order of the same date was extended from November 8, 1963 to February 28, 1971. Now, when the petitioner was not allowed to perform the duties of his office on account of attaining the age of superannuation and the intercession on the part of the State Govt. in the matter of grant of extension to him, the subsequent grant of extension by the order dated January 5, 1971 in respect of the period from November 8, 1986 upto January 5, 1971 would have become meaning less, if the period between the date of his attaining the age of superannuation and the date of his actually resuming duty on account of such extension would not have been regularized. However the petitioner was actually allowed to perform the duties of his office, in the present case, beyond November 8, 1968 upto August 2, 1970. But then for the very same reason which impelled the State Govt. to take decision No. 6 appearing below Rule 89, the period between the date from which the petitioner was not allowed to perform his duties and the date prior to the date of actually resuming duty on account of the grant refused leave of if no leave was due to him, Government in decision No. 6 dated January 13, 1971. It is some what surprising that neither the petitioner not the State Government and not even the Accountant General took notice of the decision of the State Government dated March 7, 1970 (No. 5) and dated January 13, 1971 (No. 6). If these decisions would have considered, the Accountant General could not have come to the conclusion that the period from August 3, 1970 to January 5, 1971 should not be regularized in the case of the petitioner by grant of refused leave, so long as leave was due to him. All what the Accountant General has said in the letter dated May 27, 1972, is that the case of the petitioner is not governed by the decision of the State Government dated August 3, 1968 which was applicable only to the Government servants who writ granted extension in service with effect from June 1, 1967. That is no doubt correct. But the concerned authority was also bound to take notice of the decisions of the State Government dated March 7, 1970 and January 13, 1971 which are relevant and are fully applicable to the case of the petitioner who was a radical officer and was granted extension in service upto February 28, 1971. I am, therefore, of the view that the period between August 3, 1970 and January 5, 1971 should be regularised in the case of the petitioner by grant of refused leave or is no leave is due then only half pay or extraordinary leave should be granted to him. In arriving at the decision as to the quantum of leave which should be considered as 'refused leave' in the case of the petitioner, the leave which was due to the petitioner prior to his attaining the age of superannuation should be considered to have been carried forward beyond the date of his compulsory retirement and he should have been allowed to avail of the same during the period of extension of his service, along with the leave earned by the petitioner doing the period of such extension.

10. In the result, the writ petition is allowed and the order of the State Government dated July 13, 1970 is set aside, as also the decision of the Accountant General dated May 27, 1972 and the respondents are directed to decide the matter of refused leave of the petitioner afresh and regularise the period between August 3, 1970 & January 4, 1970 in the light of the observations made above. The petitioner would above be entitled to all consequential benefits. The parties are, however left to bear their own costs.


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