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Writ Petition No. 12255 of 1980, decided on 29th June, 1981.
‑‑ R. 2.11 read with Police Rules, rr. 9.2 (6) & 9.29 (I)‑Interrup tion in service of Foot Constable of Police‑Competent authority to commute such interruption‑Held: Superintendent of Police and no one else.
‑‑ Regln. 423 read with Police Rules, rr. 9.2 (6) & 9.29‑Regula tion 423 deals with a deficiency in service and not an interruption as covered by r. 9.29 or r. 9.2 (6) of Police Rules.
Ch. Mushtaq Masood for Petitioner.
K. N. Bhindhari, A. A.‑G. for Respondents.
Date of hearing : 29th June, 1981.
The petitioner assails the refusal on the part of the respondents to grant him pensionary benefits and prays that the respondents be directed to prepare his pension papers on the basis of the correct and not incorrect record of service.
2. Briefly, the facts of this case are that the petitioner joined police service as a Foot Constable on 9th June, 1942. On 20th October, 1958, he tendered his resignation in view of certain domestic problems. Later, on 1st January, 1959, he requested for withdrawal of the same. The request was granted by the Superintendent of Police, Sargodha, who also allowed to count his previous service under rule 9.2 (6) of the Police Rules. The interruption between the resignation and re‑entry was also condoned under Article 423 of the Civil Service Regulations by treating it its leave without pay.
3. The petitioner retired on 4th October, 1979, after attaining his age of superannuation, His pension papers were, however, returned with certain objections by the District Accounts Officer on 6th December, 1979. Respondent No. 1 removed these objections by informing the District Accounts Officer that the service gap from 9th June, 1942, to 19th October, 1959, had been bridged by the Superintendent of Police who allowed his previous service to be counted towards pension. It was thus clarified that the total service of the petitioner for the purpose of pension was to be counted from 9th June, 1942.
4. The District Accounts Officer, respondent No. 3, again returned the petitioner's pension papers on 26th February,. 1980, with the remarks that the service prior to the date of resignation could not be counted towards pension as per provisions of rule 2.11 of the Civil Servants Pension Rules. It is that order which has been challenged through the present writ petition.
5. The facts above do go to show that the only question arising for consideration in this case is whether the order passed by the Superinten dent of Police allowing the interruption in service to be treated as leave without pay and granting continuity of the previous service is a valid order for the purpose of pension Rule 2.11 of the Civil Servants Pension Rules relied upon by respondent No. 3 reads as under :‑
"2.11. A Government servant forfeits his past service in the follow ing cases :‑
(a) Resignation of a post unless it is to take up another post, service in which counts for pension.
(b) Removal or dismissal from service.
(c) Absence from duty without leave.
Note : The authority which sanctions the pension may commute retrospectively periods of absence with leave into extraordi nary leave."
6. It will be noticed that the Note' under the above rule authorises the pension sanctioning authority to commute retrospectively periods of absence with leave into extraordinary leave. This rule is rather an enabling provision to condone such interruption even at the time of sanc tion or computation if it had not been done earlier. Obviously, this would be called for only if an authority competent to do so has not already commuted the interruption caused in the service. Further, the. tenor of the rule is in favour of condonation rather than rejection of it.
7. As said above the Superintendent of Police acted under rule 9.2(6) which reads as under:‑
"When a lower subordinate is re‑enrolled the Superintendent of Police may, allow his previous police service to count for pension, subject to the conditions contained in rule 12.24."
Rule 12.24 noted above is for the guidance of the Superintendent of Police at the time of passing an order under rule 9.2 (6) and he has to apply his mind to the situation at the time he passes the order, I shall therefore presume that the Superintendent of Police did consider the same before passing his order. At any rate, it has not even alleged that there was some provision of the rule which affected the petitioner's case adversely.
8. Thus rule 2.11 of the Civil Servants Pension Rules read with rule 9.2 (6) of the Police Rules makes it abundantly clear that the compe tent authority to commute interruption, in service is the Superintendent or Police and no one else. The contention of the respondents that only the Inspector‑General of Police is competent to condone the interruption is further belied by rule 9.29 (1) of the Police Rules which goes as under :‑
"The Inspector‑General of Police is empowered to condone all interruption in the service of inspectors; Deputy Inspectors‑General in the service of other upper subordinates and Superintendents of Police in the service of lower subordinates. Condonation of breaks of service and admission of military service to count for police pension rules are conditioned by rules 9.2, 9.3 and 12.24."
9. It is possible that the respondents were misled by rule 9.29 (2) which refers to Article 423 of the Civil Service Regulation. It reads as under :‑
"The authority competent to sanction the pension of an officer may condone a deficiency of three months in qualifying service, while the Government of India and Provincial Government may similarly condone a deficiency not exceeding twelve months, vide Article 423, Civil Servants Regulations."
It will be seen that this regulation refers to condonation of deficiency in qualifying service which may come up for consideration only after the civil servant had already retired. Even rule 9.29 will be operative after superannuation while rule 9.2 (6) and rule 12.24 referred to above come into play on re‑enrolment. The two sets of rules thus cover two different situations.
10. Article 423 of the Civil Service Regulations relied upon by the respondents reads as under :‑
"423.‑(1) Upon any conditions which it may think fit to impose the authority competent to sanction the pension of an officer may condone a deficiency of three months in his qualifying service.
(2) The Government of India and Provincial Governments may simi larly condone a deficiency not exceeding twelve months.
(3) If an officer claiming superior service has also rendered inferior service, the Government of India or the Provincial Government under whom he is serving may condone a deficiency in his qualifying service for pension on the superior stale not exceeding one‑half his inferior service, subject to a maximum of twelve months in all."
This regulation deals with a deficiency in service and not an interrup tion as covered by rule 9.29 or rule 9.2 (6) reproduced above. Article 423 is thus not applicable.
11. The upshot of the above discussion is that as the competent authority has already condoned the interruption in service to be treated as leave without pay, no further sanction was needed under rule 9.29 or regulation 423.
In view of the above, the impugned order is declared to be without lawful authority and of no legal effect. The respondents are thus directed to finalise the pension case of the petitioner. There will be no order as to costs.
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