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Sunil Chaudhary, S/o Shri Lashkari Ram v. Union of India, through Secretary - Case No. 2346/2006 [2008] INCAT 524 (1 May 2008)

Central Administrative Tribunal

Principal Bench

OA No.2346/2006

New Delhi this the 1st day of May, 2008.

Honble Mr. Shanker Raju, Member (J)

Honble Mr. Shailendra Pandey, Member (A)

Sunil Chaudhary,

S/o Shri Lashkari Ram,

IV/15 Officers Colony,

Delhi Road, Saharanpur (U.P.). -Applicant

(By Advocate Shri Narender Hooda with Shri Praveen Gupta, Advocate)

-Versus-

1. Union of India,

through Secretary,

Ministry of Environment & Forest,

Paryavaran Bhavan,

C.G.O. Complex, Lodi Road,

New Delhi-110 003.

2. Government of Uttar Pradesh,

through Principal Secretary (Forest),

Bapu Bhavan,

Uttar Pradesh, Sachivalaya,

Lucknow (UP).

3. Secretary,

Ministry of Personnel, Public Grievances

And Pensions, North Block,

New Delhi. -Respondents

(By Advocate Shri Rajesh Katyal with Shri B. Banerjee, Advocate)

O R D E R

Mr. Shanker Raju, Honble Member (J):

The applicant, an officer of the Indian Forest Service (hereinafter referred to as IFS), by virtue of this OA has impugned respondents order dated 8.2.2006, wherein his request to treat the period from 20.2.1993 to 29.7.1996 towards seniority, promotion and qualifying service has been turned down and the period has been treated as dies non.

2. A brief factual matrix transpires that the applicant was selected by way of direct recruitment in the year 1988 into IFS and was allotted 1989 batch of UP cadre. On completion of the foundation course at Mussoorie and probationer training at Dehra Dun, the applicant was appointed on 27.6.1990. The applicant appeared in the Civil Services Examination (CSE) in the year 1992 and was selected in the Indian Railway Traffic Service (IRTS). No objection certificate was issued by the respondents on 17.2.1993 in order to enable the applicant to join the IRTS. The applicant tendered his resignation from IFS in February 1993. However, the same was pended but on no objection from the state of U.P. applicant was relieved to join IRTS. The applicant later decided not to pursue his service in IRTS and accordingly tendered his resignation on 17.2.94, which was accepted on 8.2.1995. The applicant had in his representation dated 17.2.1994 sought permission to rejoin IFS, which was allowed by the Union of India on 8.2.1995. The aforesaid period during which applicant was in IRTS has been decided to be regularized by respondent No.1 as extraordinary leave (EOL) which was from 17.2.1993 to 8.2.1995.

3. Although the applicant had been permitted to re-join the IFS on 8.2.1995, he did not join the IFS due (according to him) to prolonged illness and after production of a medical record, the applicant approached respondent No.2 on 30.7.1996 to join IFS but was not permitted. However, on 18.9.1996 Government of U.P. as a condition precedent sought an undertaking from the applicant to forego pensionary benefits and seniority for the period during which he absented himself from the IFS. Applicant, having no other recourse, gave an undertaking, foregoing his monthly pension and seniority benefits. However, taking resort to several Government of Indias instructions, he made a representation preferred on 29.12.1996 and sought condonation of the period of interruption in service with treatment of the period for service benefits. One of the contentions raised was that promissory estoppel or undertaking would not be valid, against the Statute. Another representation was also filed on 5.12.1998, which was followed by one more representation on 3.5.2000.

4. Getting no positive response from the respondents applicant filed OA-1295/2004, which was disposed of on 26.5.2004 with a direction to respondents to pass a speaking order. Through an order passed on 8.2.2006 the aforesaid period was decided to be treated as dies non and the interruption of service was declined to be condoned.

5. The applicant was subsequently granted senior time scale w.e.f. 1.4.1997 whereas his junior was given the same on 1.1.1993. JAG was granted to the applicant on 1.1.2002 but to his junior on 1.1.1997. The applicant was also granted selection grade on 1.4.2006. Apprehending his non-consideration for promotion to the post of Conservator of Forests, the applicant filed the present OA.

6. Before we advert to the rival contentions and the legal issues, the rule position which governs the issue is also relevant to be highlighted. Admittedly the IFS is an All India Service where Conditions of Service of leave and retiral benefits are governed by All India Services (Leave) Rules 1955 and All India Services (Death-cum-Retirement Benefits) Rules, 1958.

7. Rule 11 of the IFS (Probation) Rules, 1958 insofar as seniority of probationers is concerned, places the probationer on result of the competitive examination as per the merit obtained. However, IFS Regulations of Seniority Rules, 1997 assigns year of allotment to a direct recruit in the year following the year in which the competitive examination was held and inter-se-seniority of direct recruit officers shall be determined as per Rule 10 of the Probation Rules ibid. This makes it clear that even the probation period has to be reckoned as seniority of a directly recruited IFS.

8. All India Services (Leave) Rules, 1955 in Rule 7 provides maximum of five years grant of leave for a continuous period. EOL can be provided under Rule 15 of the Leave Rules when no other kind of leave is admissible. Rule 32 of the Rules in case of undue hardship to a member of the service, provides for relaxation by the Government.

9. Under the All India Services (Retirement Benefits) Rules, Rule 5 entails forfeiture of retiral benefits on resignation to Rule 5 (2) as an exception subject to the provisions of Rules 5-9 where a member of the service is permanently absorbed under a Corporation/Company or a Body when resigns as a condition of his appointment in other body, the retiral benefits cannot be curtailed.

10. Qualifying service is defined under Rule 8 of the Retirement Rules ibid. Rule 8 (1) reckons initiation of qualifying service for a member of the service from the date of appointment on probation.

11. Rule 9 of the Retirement Benefits Rules allows period of EOL granted on the basis of medical leave as qualifying service. However, Rule 11 also permits EOL to be counted towards qualifying service.

12. Rule-12 of the Rules as a non-obstinate clause in absence of any thing contrary allows interruption between two spells of service to be condoned and the service to be rendered as qualifying service except when it is not caused by resignation.

13. Rule 29 of the Rules ibid in case of any question as to interpretation of the rules prescribes Central Government to decide the same.

14. All India Services (Conditions of Service Residuary Matters) Rules, 1960 under Rule 3 provides relaxation of the rules or regulations in equitable manner when undue hardship is caused, which as per G.I.M.H.A. letter dated 1.1.1996, includes a situation which is not contemplated under the Rules or which does not cover any ordinary hardship or inconvenience.

15. Having regard to the above provisions of the Rules, learned counsel of applicant contends that once the respondents have taken a decision to treat the period of absence as EOL they cannot resile from their earlier stand to act to the detriment of the applicant.

16. Learned counsel refers to the undertaking, which has resulted in treatment of the period from 20.2.1993 to 29.7.1996 as dies non, and states that as no condition has been imposed earlier by the respondents in their letter dated 8.2.1995, the aforesaid condition was unconscionable being contrary to the fundamental right of the applicant, and no estoppel or acquiescence could be applied.

17. Learned counsel has relied upon the decision of the Apex Court in Jeet Ram Shiv Kumar v. State of Haryana, [1980] INSC 85; AIR 1980 SC 1285 and also on the following decisions to substantiate his plea:

i) K.L. Kohli v. State of Punjab, 1995 (4) SCT 280.

ii) Nar Singh Pal v. Union of India & Others, 2000 (3) SCC 588.

iii) Mohan Lal Aggrawal and others v. Bhubaneswari Prasad Mishra and others, 2002 (1) LLJ SC 463=JT 2001(9) SC 21.

iv) State of Tripura v. K.K. Roy, 2004 (9) SCC 65.

18. It is contended that on withdrawal of resignation on 17.2.1994 the request was acceded on 8.2.1995 and prior to it the applicant remained in IRTS. As such, there was no break in service and the period from 8.2.1995 till he re-joined the service of the respondents on 30.7.1996 was on account of his prolonged illness for which, before treating the period as dies non, no reasonable opportunity has been afforded, which amounts to denial of a reasonable opportunity. It is contended that when civil consequences ensue, non-opportunity is in contravention of principles of natural justice. Learned counsel states that in the case of a resignation to take up with prior permission another appointment for want of any provisions under the All India Services Rules, Rule 26 (2) of the CCS (Pension) Rules, 1972 is to apply.

19. Learned counsel further states that according to Rule 28 of the CCS (Pension) Rules, an interruption between the two spells of civil service rendered by a Government servant has to be treated as qualifying service, as resignation is a technical formality and once the request for withdrawal is accepted, no resignation exists to entail forfeiture of past service.

20. Learned counsel also states that EOL as per Rule 21 of the Leave Rules on medical grounds is to be granted and as the certificate was from a Government hospital, the decision of the Ministry to grant EOL has been passed under Rule 21 ibid. Accordingly, at this stage the authenticity of medical record can not be challenged on the principle of estoppel.

21. It is further stated that the period from 20.2.1993 to 26.4.1994 was on account of permission from IFS to join IRTS and both the spells were under active service under the Union of India and accordingly the same has to be treated as spent on duty and qualifying service as well. Learned counsel invokes the doctrine of estoppel to contend that even after such a decision applicant has been shown to be a 1989 batch IFS officer, as such all the implications as per the Rules cannot be curtailed by the respondents, which shall be against the Rules.

22. On the other hand, respondents have vehemently opposed the contentions. Learned counsel of respondent No.2, i.e., State of U.P. states that while undergoing job training in IFS the applicant on the basis of CSE, 1989 was selected in IRTS. Accordingly, he was relieved to join IRTS in February 1993 but subsequently on a request to resign from IRTS and to rejoin IFS due to compelling circumstances the applicant was asked to join duty on 8.2.1995 but he finally joined on 29.7.1996. As such, applicant was out of active service from 26.4.1994 to 30.7.1996. As such an undertaking was obtained and accordingly the period was treated as dies non.

23. Learned counsel of rest of the respondents, including Union of India, vehemently opposed the contentions and decision of the Apex Court in T.R. Arcot Educational Institution v. E.A.T., 2000 (3) SLJ SC 123 has been relied upon to contend that non-reporting for duty entails termination. It is stated that though the State Government relieved the applicant to join the IRTS, the resignation tendered was still under consideration of the competent authority and as there was no formal communication to the applicant that the resignation would be treated as technical, the presumption is wrong.

24. Learned counsel states that applicant had resigned with an intention to appear in CSE, 1993 as per Rule 4, Note-IV (b), of CSE, 1993. His resignation was accepted on 26/4/1994 by the IRTS. Although the applicant waited for one year even after resignation from IRTS to represent for rejoining IFS because of his failure to make it for CSE, 1993, it is stated that as an exceptional case on humanitarian grounds the applicant was allowed to join by a letter dated 28.2.1995 with a direction to report immediately. In the circumstances the period from 17.2.1994 to 8.2.1995 could have been treated as EOL under Rule 15 (2) of the Leave Rules. However, in view of the subsequent absence of the applicant for 18 months without any reasonable basis without any intimation whatsoever he cannot claim EOL for the entire period and he is also estopped to seek the reliefs prayed for in the OA in view of the waiver undertaking given by him.

25. Learned counsel further states that as joining back with all benefits would have created administrative problems with repercussion in cadre management of the service. The undertaking to forego the claim of this period of unauthorized absence for pension, seniority and promotion was obtained and the applicant was taken back.

26. Learned counsel states that as applicant was not in service from 20.2.1993 to 29.7.1996, the period has rightly been treated as dies non.

27. It is stated that All India Services Rules do not provide for unauthorized absence to be treated as qualifying service. Further, the decision to treat the period of unauthorized absence as dies non was taken on the advice tendered by the DoP&T on 19.1.2006.

28. Rejoinder reiterates the contentions taken in the OA. It is stated that there is no requirement of acceptance of resignation to join another service under the Union of India after leaving IFS, but once he has been allowed to join back, Rule 9 of the Death-cum-Retirement Benefits Rules allows leave to be counted as EOL and Rule 12 of the Rules provides for condonation of interruption in service except when it is not caused by resignation, and since the resignation was never accepted formally, the period of absence should be treated as EOL.

29. We have carefully considered the rival contentions of the parties and perused the material on record.

30. An undertaking, which alters the position cannot be resiled. The principles of promissory estoppel, waiver and acquiescence have been dealt with in several pronouncements of the Apex Court. However, the genesis of these is in a Constitution Bench in Olga Tellis v. Bombay Municipal Corporation, [1985] INSC 155; 1985 (3) SCC 545, where the following observations have been made:

28. It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise. that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits., Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitiners is well founded is another matter. But, the argument has to be examined despite the concession.

29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath v. Commr. of Income-tax, Delhi, (1959) Supp (1) SCR 528 : [1958] INSC 117; (AIR 1959 SC 149), a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N. H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.

31. Having regard to the above, it is no more res integra that there cannot be an estoppel against a fundamental right.

32. In Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 SCC (L&S) 1213 in a majority view, an unconscionable contract has been found to be against public policy and contrary to the right to livelihood, which is an integral part of right to life with the following observations:-

230. There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law.

231. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimiscal. With capricious . service conditions, both discipline and devotion are endangered, and efficiency is impaired.

232. The right to life includes right to livelihood, The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.

233. Both the society and the individual employees, therefore, have an anxious interest in service conditions being well-defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any service conditions.

33. The Apex Court in Government of Andhra Pradesh. v. M.A. Kareem, 1991 Supp. (2) SCC 183, in a situation where on transfer to another Organization when an undertaking was given to forego previous service insofar as issue of estoppel against law with regard to the seniority, ruled that impliedly one is not estopped from making a challenge to the seniority even after an undertaking to forego, on new grounds.

34. In Rakesh Ranjan Verma v. Union of India, 1982 Supp. (2) SCC 343 on an unconscionable agreement and an undertaking sought from the employees the Apex Court ruled that such undertaking will not bind the employees when their fundamental right is in question.

35. No doubt, as ruled by the Apex Court recently in S.B. Bhattacharjee v. S.D. Mazumdar, JT 2007 (7) SC 381 that right to be considered for promotion is a fundamental right of promotion.

36. Moreover, insofar as seniority is concerned, though it is not a fundamental right but being a civil right if it is curtailed or this right is to be infringed, it is only on the basis of valid rules, as ruled by the Apex Court in State of U.P. v. Dinkar Sinha, 2008 (1) SCC (L&S) 38.

37. Moreover, payment of pension for services rendered has been held to be a fundamental right guaranteed to a Government servant as per the decision of the Constitution Bench of the Apex Court in D.S. Nakara v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145.

38. In S.I. Rooplal v. Lieutenant Governor, 2000 (1) SCC 644 the Apex Court has dealt with a situation where counting of service on deputation towards seniority, which entails consideration for promotion, an undertaking given to forego erstwhile service has been found to be contrary to the fundamental right guaranteed and the defence of estoppel and waiver has been negated.

39. In Bank of India v. O.P. Swarnkar, 2003 SCC (L&S) 200 insofar as the issue of waiver and estoppel is concerned, a general principle that one who knowingly accepts the benefit of a contract is estopped to deny the validity or binding effect on him is not allowed to be applied in such a manner, where the principles of right and good conscience are violated.

40. Waiver has a resemblance to doctrine of election. A right to option exercised cannot be resiled. The doctrine of waiver has been well explained in B.S.N.L. v. Subhash Chandra Kanchan, 2006 (8) SCC 276, wherein as a practice and procedure legal right of a person if waived off, enforcement cannot be insisted later on, would not have any application to fundamental right guaranteed to a person.

41. As explained in Jai Narain Parasrampuria v. Pushpa Devi Saraf, 2006 (7) SCC 756 estoppel by acquiescence it unconscionable for a party to deny what he has knowingly allowed to be acted to his detriment. However, this principle has not been viewed in the light of an enforceable fundamental right of a person.

42. Having regard to the above, what is discerned from the cumulative reading of the case-law is that though a statutory right can be waived of but a fundamental right guaranteed under the Constitution of India can neither be bartered nor waived of on estoppel. Though it is trite in law that one should not be allowed to take advantage of his own wrong, yet the peculiar circumstances and preceding and attending of a case decides the applicability of the equity-based doctrine. However, above all, doctrine of legitimate expectation though a equity-based principle is a test to check arbitrariness though may not be an enforceable right but whenever a conduct of the party when pitted against deprivation of fundamental right, the legitimate expectation would have to be brought in operation to prevent miscarriage of justice. The Apex Court recently reiterated the doctrine of legitimate expectation Sourthern Petro-chemical Industries v. Electricity Inspector, 2007 (7) SCALE 392.

43. As the above proposition of law being explicit and binding, the applicant after induction as a direct recruit in IFS, on allotment of UP cadre, had undergone certain courses and was appointed on probation. His seniority as well as qualifying service as per the seniority list ibid would commence from the date of initial appointment on probation and the year of allotment which has to be allotted, has been rightly allotted to the applicant of 1989, which has been held good even subsequently while according promotion to the applicant in different grades. However, although the year of allotment has not been changed, the intervening period from 1993-1996 has been scored off from the service of the applicant deeming him to be a fresh recruitee in 1996, which would have certainly entailed a change in the date of allotment. It can be contended that since inter-se-seniority of IFS officers has to be dealt with under Rule 3 of the Seniority Rules of 1968 ibid and is to be determined primarily on the year of allotment, by their own conduct, whereby the year of allotment of applicant has remained unaltered, the respondents are estopped from affecting the seniority of the applicant merely on the basis an undertaking that for the period from 1993-1996 seniority etc. would not be claimed.

44. Being a civil right no infringement in the seniority is to be made except on the basis of rules. The undertaking given to the respondents by the applicant not to claim seniority would have to be over-ridden by the statutory rules. Moreover, when the applicant has sought resignation from IFS and thereafter on his resignation after joining IRTS his request for allowing him to re-join IFS and not to accept the resignation was finally acceded to on 8.2.1995, the period from 20.2.1993 to 8.2.1995 has already been decided to be treated as EOL and would not entail any break in service as per the statutory rules. Moreover, the order passed on 8.2.1995 whereby the applicant has been allowed to re-join IFS is an order without any condition attached. However, it is contended, that the applicant due to his illness could not comply with this order immediately, and subsequently requested to join on probation and produced a medical certificate for the intervening period, but was allowed to re-join by the State of U.P. on giving an undertaking for foregoing monetary, seniority and pensionary benefits for the aforesaid period as per law. It is contended that this act of the respondents to allow the applicant to join with an undertaking to forego his service benefits for which the only justification come-forth is that there would be administrative problems and cadre management would be affected, has not superseded the earlier decision of the Government whereby the applicant was allowed to join with treatment of intervening period as EOL. This decision of the respondent-Union of India, it may be contended is an unconscionable decision, which impedes the fundamental right of the applicant of being considered for promotion and also impacts the period of qualifying service for pension. No doubt, in consideration of the fundamental right of promotion, seniority and length of service plays an important role and decisions as to administrative exigencies are the prerogative of the Government, yet the discretion exercised should be as per the Rules and judicious, as ruled by the Apex Court in Union of India v. Kuldeep Singh, 2004 (2) SCC 590. When applicants resignation was not accepted by the respondents and he remained in the cadre of IFS at best the intervening period would have to be proceeded with, and absence of the applicant and the grounds adduced therein by the applicant for his absence will need to be examined and considered before a decision is taken to treat the period as dies non with all implications of seniority, promotion and qualifying service. Merely because an undertaking has been given knowingly or unknowingly one cannot relinquish his fundamental right guaranteed under the Constitution of India. Moreover, after the undertaking immediately representations have been preferred to condone this period. It will be contended that the aforesaid was not considered in the right perspective as per law by the respondents.

45. Undue hardship has been defined under the Residuary Matters Rules, where a situation has not been foreseen or included in the All India Services Rules or when injustice is done to an incumbent of All India Services. Rule 3 of the Rules empowers the Central Government to relax any of the provisions to mitigate such hardship. In the instant case, having decided to treat the period upto 8.2.1995 as EOL, and the subsequent period till rejoining of the applicant in IFS having been stated by the applicant to be on medical grounds, it would be in the fitness of things for the authorities concerned to look into the authenticity and genuineness and reasonableness of the medical record provided and then to take a decision. The aforesaid certificate was issued from a Government hospital and if not found reasonable should have been referred to an expert or the applicant should have been subjected to a second medical examination and given an opportunity to be heard. Without following the due process of law the rejection is certainly not in keeping with natural justice. Moreover, Rule 15 of the Leave Rules ibid, subject to limitation of five years on grant of leave, provides for the absence period to be treated as EOL when no other leave is admissible. Leave Rules also authorize the Government to treat leave on medical grounds as EOL. The effect of such a leave under the Gratuity Rules is that it would not be treated as break in service and shall be counted as qualifying service.

46. Rule 32 of the Leave Rules empowers Government to relax the provisions in individual cases to mitigate undue hardship. Respondents have not proceeded in the matter of the applicant in accordance with the Rules.

47. Apart from the period of 18 months where the applicant was sick and was on medical rest as per the Retirement Benefits Rules, Rule 12 allows condonation of interruption of service and treatment as qualifying service of interruption between two spells of service, which have to be treated as condoned except when such an interruption is not caused by resignation. Admittedly, in the present case the resignation tendered by the applicant while in IFS was kept pended by the respondents and was not accepted. Rather, the representation of applicant to re-join IFS, abandoning his request for resignation, once applicant has been allowed to re-join it cannot be assumed in law as per Rules that applicant either has resigned or the resignation on acceptance has attained finality. If it is so, then applicant by virtue of joining IRTS and on his release from IRTS the interruption in two spells of service can be condoned and treated as qualifying service, if the Govt. so desires. While the Govt. retain the right to take a final decision in the matter, it must base its decision on justified grounds not merely on an undertaking.

48. Moreover, as the respondents have treated vide their letter dated 8.2.2006 the period from 20.2.1993 to 19.7.1996 as dies non, which is a break in service, the action must be preceded by a show cause notice. As civil consequences ensued upon applicant it obligated a prior reasonable opportunity in the light of the decision of the Apex Court in Shekhar Ghosh v. Union of India, 2007 (1) SCC 331.

49. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to re-examine the claim of the applicant for treating the period from 20.2.1993 to 19.7.1996, as qualifying service for all purposes, by passing a reasoned order, within three months from the date of receipt of a certified copy of this order. It is needless to observe that on such a consideration, our observations shall also be kept in view. No costs.

(Shailendra Pandey) (Shanker Raju)

Member (A) Member (J)

San.