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Judgment
ORDER
The applicant was appointed as a Safaiwala in the Northern Railway on 16.06.1977 and superannuated on 31.07.2017 while serving under the Station Superintendent, Patel Nagar, New Delhi.
The brief factual matrix as narrated by the learned counsel for the applicant is that the applicant met with a road accident on 15.04.2012 at Gurgaon and sustained multiple injuries. He was initially admitted to Kamla Hospital and thereafter shifted to the Central Railway Hospital, New Delhi, where he Central Administrative Tribunalremained under treatment on several occasions until October 2013. After his discharge, he approached the Station Superintendent in October 2013 to resume duty but was allegedly not permitted to join unless he produced a medical fitness certificate through the Divisional Railway Manager's office. Learned counsel for the applicant contended that despite repeated requests, the medical authorities did not issue the requisite fitness certificate and no Medical Board was constituted to declare him medically unfit, resulting in his prolonged absence from duty without any fault on his part.
Aggrieved by the refusal to permit him to rejoin duty, the applicant approached the Tribunal by filing O.A. No. 240/2017, which was disposed of on 02.01.2017 directing the respondents to consider the legal notice dated 05.10.2016 and pass an appropriate speaking order within 30 days. Upon alleged non-compliance of the said directions, the applicant instituted Contempt Petition No. 240/2017. During the pendency of the contempt proceedings, he was permitted to resume duty. On 29.04.2017, he was directed to obtain a medical fitness certificate and, thereafter, the Divisional Medical Officer issued a fitness memo dated 01.05.2017 declaring him fit for light duty, pursuant to which he resumed duties on 19.05.2017.
Learned counsel for the applicant submitted that instead of treating the intervening period from 24.08.2012 to 29.04.2017 as duty or qualifying service, the respondents passed an order dated 25.07.2018 treating the entire period as "Leave Without Pay". According to the applicant, the said order was passed by the Senior Divisional Commercial Manager, who was not the competent authority, as the cadre controlling authority was the Divisional Medical Officer. It is further contended that the contempt petition was thereafter closed on 03.08.2018 with liberty to avail appropriate legal remedies against the said order.
It is submitted that detailed representations dated 13.06.2018 and 25.09.2018 seeking, inter alia, treatment of the period from 2012 to May 2017 as duty for all purposes, grant of three financial upgradations under the MACP Scheme, revision of pension and retirement benefits on the basis of the last drawn pay of Rs.32,000/-, computation of gratuity by counting his entire qualifying service exceeding 40, and supply of his service book, were made before the respondents, however, these representations were not effectively decided.
The applicant again approached the Tribunal by filing O.A. No. 1446/2020. By order dated 05.10.2020, the Tribunal directed the respondents to consider and dispose of his pending representations by passing a reasoned and speaking order. In purported compliance, the respondents issued the impugned order dated 10.05.2021, again treating the period from 24.08.2012 to 29.04.2017 as „Leave Without Pay‟. The applicant alleged that the respondents considered only one of the several reliefs sought in his representation while failing to address the remaining issues, rendering the order passed by the Tribunal in the aforesaid OA non-speaking and contrary to the directions of the Tribunal. Hence, the present OA has been filed by the applicant, seeking the following relief(s) :-
“(i)That the Hon‟ble Tribunal may graciously be pleased to pass an order directing the respondents to re-fix the pension and retirement benefit of the applicant on the basis of last pay drawn with all the consequential benefits including arrears of difference of retirement benefits with interest.
(ii)That the Hon‟ble Tribunal may graciously be pleased to pass an order directing the respondents to treat the entire period from 24.8.2012 to 29.4,2017 as qualifying service for all the purpose including annual increments, pension, retirement benefits, financial upgradations with all the consequential benefits.
(iii)That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 25.7.2018 (Annex.A/1) and 10.05.2021 (Annex.A/2) with all the consequential benefits.
(iv)Any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation.”
Apart from challenging the orders dated 25.07.2018 and 10.05.2021, learned counsel for the applicant contended that the pension and retiral benefits of the applicant have been wrongly calculated. He asserted that his last basic pay at the time of retirement was Rs.32,000/- with Grade Pay of Rs.2,000/-, whereas the Pension Payment Order erroneously adopted Rs.30,200/- as the last pay, thereby reducing his pension and other retiral dues. He also alleged that although the applicant rendered more than 40 of service from 16.06.1977 to 31.07.2017, the respondents counted only 29 years as qualifying service for pensionary benefits. The applicant further claimed entitlement to the 3rd financial upgradation under the MACP Scheme with all consequential benefits. In support of his contentions, the learned counsel for the applicant has relied upon the earlier orders of the Tribunal in O.A. No. 240/2017, the order passed in the contempt proceedings, and the order dated 05.10.2020 in O.A. No. 1446/2020.
The applicant has also filed written synopsis in the matter. It is stated that since the applicant rendered more than 40 years of service, as per the guidelines issued under MACP Scheme, he is entitled for 3rd MACP w.e.f. 01.09.2008 in the grade pay of Rs.2400/- and denial of the same is totally illegal, arbitrary and discriminatory.
With regard to treating period from 24.8.2012 to 29.04.2017 as LWP on account of sickness, it is submitted that once leave has been granted on sickness ground, as per Rule 37 of RS (Pension) Rules, 1993, such period is treated as qualifying service for retirement benefits. It is submitted that respondents calculated the service of the applicant as 29 years after deducting the leave without pay period i.e. 10 years, 6 months and 16 days, while as per para 11 of the MACP Scheme, regular service includes all kinds of leave, therefore, the aforesaid period of EOL should be treated as regular service making the applicant eligible for grant of 3rd MACP.
Secondly, so far as reducing the pay of the applicant at the time of retirement, it is submitted that as per the Railway Board Circular dated 02.01.1971,
“at the time of retirement/termination of service of employees, scrutiny of their leave accounts should be restricted to the last three years of their service all cases.” The same has been reiterated by the Railway Board in the circular dated 06.02.2009. In this connection reliance is placed on the order of the Tribunal in the case of Gokul Chand Koslia Vs. Union of India in OA No.956/2017 decided on 29.08.2024, upheld by the Hon‟ble High Court of Delhi.
The respondents, in their counter affidavit, opposed the Original Application and contended that it is devoid of merit and liable to be dismissed. While admitting the applicant's appointment on 16.06.1977 and retirement on 31.07.2017, they denied that the applicant was unlawfully prevented from joining duty after his accident. According to the respondents, the intervening period was validly decided as “Leave Without Pay” by order dated 25.07.2018 in accordance with the applicable Railway rules and delegated powers. They further contended that, at the time of scrutiny of the applicant's service records for retirement, it was found that he had remained absent for 3726 days, resulting in revision of his pay and fixation of his last pay at Rs.30,200/-.
Learned counsel for the respondents also denied the applicant's claim regarding qualifying service. According to him, the applicant, being a screened employee, was governed by the Railway rules under which only half of the service between the date of appointment and the date of screening is counted. After deducting the period of “Leave Without Pay” amounting to 3726 days, his qualifying service was correctly determined as 29 years. On this basis, he submitted that the applicant was not eligible for the 3rd financial upgradation under the MACP Scheme and that the pension and retiral benefits were correctly calculated. In support of their stand, the respondents have relied upon the Railway letter dated 24.07.2017 regarding denial of increments during the period of absence and the Associate Finance calculation sheet annexed with the counter affidavit.
The respondents have also filed written synopsis maintaining their stand. It is stated that the last pay of the applicant has been fixed as Rs.30200/- as per letter dated 24.07.2017 because the applicant had not been given the increment during the period of 01.01.2013 to 18.05.2017, as the applicant was absent in this period. Since the applicant is a screened employee who was appointed on 16.06.1977 and screened on 01.10.1978, so as per the extant rules of the Railways, the half of the service is added to qualifying service between the period of date of appointment and date of screening.
We have heard the learned counsel for the parties and perused the material placed on record as well as gone through the written submissions filed by the respective parties.
The controversy in the present matter centres upon whether the period from 24.08.2012 to 29.04.2017 ought to be treated as Leave Without Pay or as qualifying service in view of the applicant's medical condition and the earlier directions of the Central Administrative TribunalTribunal; whether the impugned orders dated 25.07.2018 and 10.05.2021 comply with the judicial directions issued in O.A. No. 240/2017 and O.A. No. 1446/2020; whether the applicant's last pay and qualifying service have been correctly determined for pensionary benefits; and whether he is entitled to revision of pension, gratuity, MACP benefits, and other consequential retiral dues.
Before adverting to the rival contentions, it would be apposite to recall the settled position that pensionary and retiral benefits are neither a bounty nor a matter of grace, but property earned by service, which cannot be reduced or withheld save by authority of law.
In State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, the Hon'ble Supreme Court held that
“8.It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S Nakara v. Union of India (1983) 1 SCC 305 by D.A Desai, J. who spoke for the Bench, in his inimitable style, in the following words:
“18.The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?
19.What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20.The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330, 1971 Supp SCR 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh (1976) 2 SCC 1, (1976) 2 LLJ 377.” It is thus a hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.”
It is against this touchstone that the reduction of the applicant's last pay and the truncation of his qualifying service must be tested.
The controversy, as framed in the preceding paragraph, turns principally on the character to be assigned to the period from 24.08.2012 to 29.04.2017. On the applicant's own showing, and as is not seriously in dispute on the record, he met with a road accident on 15.04.2012, remained under treatment until October 2013, and thereafter presented himself to resume duty in October 2013. He was, however, not permitted to join unless he produced a medical fitness certificate through the office of the Divisional Railway Manager; the medical authorities did not issue the requisite certificate; and no Medical Board was constituted to declare him fit or unfit. It was only during the pendency of the contempt proceedings that he was directed on 29.04.2017 to obtain a fitness certificate, was found fit for light duty by the memo dated 01.05.2017, and resumed on 19.05.2017. The period during 24.08.2012 to 29.04.2017 where the applicant was not working/not allowed to work was thus occasioned not by any default of the applicant, but by the failure of the respondents to have him medically examined and to constitute the Board that alone could have decided his fitness.
Once this fact is appreciated as such, the respondents' plea that the period was validly treated as “Leave Without Pay” cannot be accepted. It is a settled principle that no party may take advantage of a state of affairs which it has itself brought about. In Kusheshwar Prasad Singh v. State of Bihar, (2007) 11 SCC 447, the Hon'ble Supreme Court reiterated the maxim commodum ex injuria sua nemo habere debet, holding that “he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned” and that “a man cannot be permitted to take undue and unfair advantage of his own wrong.” The same principle was recently applied in High Court of Judicature for Rajasthan v. Abhay Jain, 2026 INSC 762, where it was held that “the consequential benefits of seniority, pay, promotion and the like, cannot be refused merely because fulfilment of the eligibility conditions had been rendered impossible by the employer‟s own wrongful act of causing impediment in the service tenure of the employee.” The respondents, having themselves withheld the fitness certificate and omitted to constitute the Medical Board, cannot rely on the resulting absence to visit the applicant with loss of pay, increments, qualifying service and pension.
For the same reason, the principle of “no work, no pay” can have no application. That principle is not attracted where an employee was willing and able to serve but was kept out of employment by the employer's own act. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, the Hon'ble Supreme Court, summarising the governing principles, laid down that “in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule”, and that an employee kept away from work through no fault of his own is not to be denied the benefits of the intervening period. Here there was not even a termination — only an enforced absence; the principle applies with greater force.
The applicant's case does not, however, rest on equity alone; it is reinforced by the statutory scheme. Under Rule 37 of the Railway Services (Pension) Rules, 1993, extraordinary leave granted on a medical certificate counts as qualifying service. The applicant's absence, being referable entirely to his accident and consequent medical condition, squarely answers that description; even if the period is treated as leave, it is leave on medical grounds, which the Rules command to be reckoned as qualifying service. Further, in terms of para 11 of the MACP Scheme, “regular service” for the purpose of financial upgradation includes all kinds of leave. The respondents' act of deducting this very period, styled as “Leave Without Pay” amounting to 3726 days (about 10 years, 6 months and 16 days), and thereby reducing the applicant's qualifying service to 29 years, is contrary to both the equitable principle noticed above and the statutory scheme.
As regards the reduction of the applicant's last pay from Rs. 32,000/- to Rs. 30,200/-, the respondents' stand is that increments were withheld for the period of absence (01.01.2013 to 18.05.2017) in terms of the Railway letter dated 24.07.2017, and the pay re-fixed on a scrutiny of the service record at the retirement stage. This exercise is impermissible. The Railway Board Circular dated 02.01.1971, reiterated on 06.02.2009, directs that “at the time of retirement/termination of service of employees, scrutiny of their leave accounts should be restricted to the last three years of their service all cases.” The respondents could not, therefore, reopen absences of the years 2012 to 2017 to depress the applicant's pay at the fag end of his career. This is precisely the view taken by a coordinate Bench in Gokul Chand Koslia v. Union of India, O.A. No. 956/2017 (decided on 29.08.2024), which has been upheld by the Hon'ble High Court of Delhi, and which, being a decision on a cognate question affirmed by the jurisdictional High Court, we respectfully follow for the sake of consistency.
There is a further, and independent, infirmity in the impugned orders. The order dated 25.07.2018 is stated to have been passed by the Senior Divisional Commercial Manager, who, on the applicant's showing, was not the cadre-controlling authority for a member of the medical/health cadre, the competent authority being the Divisional Medical Officer. More fundamentally, the impugned order dated 10.05.2021 — passed in purported compliance with the direction in O.A. No. 1446/2020 to dispose of the pending representations by a reasoned and speaking order — addressed only one of the several reliefs claimed and left the remaining grievances undecided, merely reiterating the earlier characterisation of the period as “Leave Without Pay”. Such an order is neither a speaking order nor compliance with the Tribunal's directions. The obligation to record reasons in support of an order affecting rights is well settled: Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496. The impugned orders fall short of that standard and, having been passed in disregard of the binding directions in O.A. No. 240/2017 and O.A. No. 1446/2020, cannot be sustained.
The respondents' reliance on the applicant being a “screened” employee, and on the rule that only half of the service between the date of appointment (16.06.1977) and the date of screening (01.10.1978) is to be counted, does not advance their case on the real controversy. That rule, even if applicable, operates only upon the short pre-screening span of about fifteen months; it has no bearing on, and cannot justify, the exclusion of the medical-absence period of 2012 to 2017. Once the latter period is held to be qualifying service, the computation of the applicant's qualifying service at 29 years — arrived at by deducting 3726 days — cannot stand and must be re-worked.
It follows that the applicant's claim to financial upgradation under the MACP Scheme has been rejected on a foundation that is itself unsound. The denial of the 3rd financial upgradation proceeded solely from the truncated qualifying service. Once the intervening period is counted, the applicant, who entered service on 16.06.1977 and retired on 31.07.2017, has rendered well over the service required, and his entitlement to the 3rd financial upgradation must be considered afresh on merits in accordance with the MACP Scheme, uninfluenced by the earlier erroneous exclusion of the medical-absence period.
The cumulative effect of the foregoing is that the applicant's pension and retiral dues have been computed on a doubly erroneous basis — an artificially reduced last pay and an artificially shortened qualifying service — with the result that he has been deprived of a part of his earned pension without authority of law. That, as held in Jitendra Kumar Srivastava (supra), the Constitution does not permit.
In the result, the Original Application is allowed in the following terms:
The impugned orders dated 25.07.2018 (Annexure A/1) and 10.05.2021 (Annexure A/2), treating the period from 24.08.2012 to 29.04.2017 as “Leave Without Pay”, are quashed and set aside.
The respondents shall treat the entire period from 24.08.2012 to 29.04.2017 as duty / qualifying service for all purposes, including annual increments, pension, gratuity and financial upgradation.
The respondents shall re-fix the applicant's last pay drawn at Rs. 32,000/- (with Grade Pay of Rs. 2,000/-), the scrutiny of the leave account at the stage of retirement being confined, in terms of the Railway Board Circulars dated 02.01.1971 and 06.02.2009, to the last three years of service.
The respondents shall accordingly re-compute the applicant's qualifying service, pension, gratuity and commutation, and re-fix his pension on the basis of the last pay so determined, together with all consequential benefits.
The applicant's claim to the 3rd financial upgradation under the MACP Scheme shall be considered and decided afresh, on merits and by a speaking order, treating the aforesaid period as regular service in terms of para 11 of the Scheme.
The arrears of the difference of pay and retiral dues arising from the above shall be paid to the applicant together with interest at the rate of 6% per annum from the date the respective amounts fell due till the date of actual payment.
The entire exercise shall be completed and the arrears released within three months from the date of receipt of a certified copy of this order, failing which the arrears shall carry interest at 9% per annum for the period of default.
All the pending MAs, if any, shall stand disposed of. There shall be no order as to costs.