TaxTMI 
TaxTMI 
2019 (2) TMI 2105
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....ation by a larger Bench, of that view, was required. As a sequitur, the present appeal has been placed before us. 2. A perusal of the reference order dated 9.11.2016, shows that the disagreement with the view taken in Lillu Ram1 case emanated on various accounts: (a) if the employee has been sanctioned leave without pay, why such period should be treated as a period of unauthorised absence; (b) non-consideration of relevant Rules such as Rules 27 & 28 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the 'Pension Rules') and FR 17-A of the Fundamental Rules; (c) no adverse effect should be visited on the employee to receive pension, unless given notice by the appropriate authority, by an entry in the service book or through other notice, that his absence will be treated as unauthorised absence and will not be counted towards qualifying service for pension; (d) the VRS is permissible only on completion of 10 years of service and, thus, it may be unjust and harsh to inflict the employee with adverse consequences, in the absence of such notice. 3. The relevant facts for determination of the issue before us are that the employees of the Appel....
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....umber of cases coming up on this aspect. It is in these circumstances that the issue was examined in Lillu Ram's case. A reference was made to Rule 3(1)(q) of the Pension Rules, which reads as under: 3. Definitions: In these rules, unless the context otherwise requires - (1) (a) to (p) xxxx xxxx xxxx xxxx (q) 'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules; 7. It was opined that since the leave availed of was treated as absence from duty in an unauthorised manner, that period ought not to be counted towards the "qualifying service" as the very definition of "qualifying service" means service rendered while on duty or otherwise. Since the Pension Rules had been adopted, the provisions of the Pension Rules would have to be applied for determining the eligibility. A reference was also made to Rule 49(1) of the Pension Rules, which reads as under: 49. Amount of Pension: (1) In the case of a Government servant retiring in accordance with the provisions of these Rules before completing qualify....
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....f absentee is not filled substantively; (c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension; (d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest; (e) joining time while on transfer from one post to another. (2) Notwithstanding anything contained in Sub-rule (1), the [appointing authority] may, by order, commute retrospectively the periods of absence without leave as extraordinary leave. 28. Condonation of interruption in service (a) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government including civil service rendered and paid out of Defence Services Estimates or Railway Estimates shall be treated as automatically condoned and the pre-interruption service treated as qualifying service.....
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.... of and such periods excluded from the service. All spells of extraordinary leave not covered by such specific entries will be deemed to be qualifying service. 14. Learned Counsel emphasised that a definite entry is required to be made in the service record latest by 8 months before retirement. All spells of extraordinary leave not covered by such specific entry would be deemed to be qualifying service. 15. Learned Counsel also drew our attention to SR 200 of the Supplementary Rules (hereinafter referred to as the 'SR'), which reads as under: S.R. 200. Every period of suspension from employment and every other interruption of service must be noted, with full details of its duration, in an entry made across the page of the Service Book and must be attested by the Attesting Officer. It is the duty of the Attesting Officer to see that such entries are promptly made. 16. Learned Counsel also referred to the Government of India Order No. M.F., O.M. No. F. 18 (7)-E. V (B)/65-Part-V dated 24.6.1966, the relevant extract of which reads as under: Government of India's Orders (1) Annual verification of services. - xxxx xxxx xxxx xxxx ....
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....g the Respondents can be permitted to plead that they would be unaware of the Pension Rules, which have a statutory force and whose benefit they seek to avail. In fact, the VRS itself, more specifically Clause (g), makes these very Rules applicable. Rule 21 is quite clear in its terms, i.e., "all leave during service for which leave salary is payable" would count. The corollary is that if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension. Rule 3(1)(q), while defining "qualifying service" provides for service rendered while on duty "or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules." Thus, the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations. It is a well settled principle of interpretation that when the words of a statute are clear and unambiguous, there cannot be a recourse to any principle of interpretation other than the Rule of liter....