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Judgment
Heard learned counsel for the parties.
Deceased Indra Kumar Sharma was appointed as a Teacher on 03/08/1962 and on 15/02/1982 was transferred to Government Secondary School,
Hariyadhana. Claiming to be suffered from bad-health, he remained on leave from 16/02/1982 till 30/05/1982. He reported for duty on 31/05/1982. It
was the last working day before the summer vacations. Post summer vacations being over, he had to report on 01/07/1982 but he did not do so. He
remained on leave and sent letters seeking leave to be sanctioned till 30/06/1983 arrived. He joined for a day on 01/07/1983 and submitted a letter
seeking voluntary retirement. He neither received any acceptance nor a rejection and on the ground that if application for voluntary retirement was not
rejected, it would be deemed to have been accepted, he sought pension pleading that he was entitled to half pay leave/medical leave totality 420 days
i.e. he sought adjustment of the leave period against his claim for leave which had accumulated for reasons which are obvious. The Department was
negligent. On 27/03/2001 an order was passed terminated his services on account of unauthorized absence from retrospective date i.e. 30/06/1982.
Had he been alive, Indra Kumar Sharma would have superannuated from service on 31/12/1996 i.e. before the order dated 27/03/2001 was
passed.
Prabhat Kumar Sharma, brother of Indra Kumar Sharma obtained a succession certificate and claimed from the Department that the pensionary
dues of his brother which his brother ought to have received till he died be paid to him on the strength of the succession certificate which he had
obtained.
Unfortunately, the counsel who drafted the writ petition sued in the name of the deceased brother claiming to be the legal heir and vide order dated
24/04/2008, the writ petition was dismissed on the ground that a writ petition in the name of a dead person cannot be filed.
Meaningful read Prabhat Kumar Sharma, the brother of Indra Kumar Sharma was claiming the right under the succession certificate concerning
the pension which Indra Kumar Sharma would have received.
Claim is premised on the plea that on 27/03/2001, services could not be terminated with retrospective effect being 30/06/1982. That the late
government servant had submitted an application for voluntary retirement on 01/07/1983 which was not rejected and thus would be deemed to have
been accepted.
In view of the facts noted hereinabove, suffice it to state that once application seeking voluntary retirement dated 01/07/1983 was not rejected, it
would have to be treated that the application was deemed to be accepted and thus on 27/03/2001, the order terminating the services with retrospective
date being 30/06/1982 could not be passed.
We allow the appeal granting a declaration that Indra Kumar Sharma would be deemed to have voluntary retired from service pursuant to his
request dated 01/07/1983.
On the issue of pension, qualifying service has to be 20 years. We direct the Department to compute whether the deceased had rendered
qualifying service taking into account that after 16/02/1982, he only worked for two days till he submitted his application seeking voluntary retirement.
The period from 15/05/1982 till 01/07/1983 would be looked into with reference to the leave being any due to the deceased for the reason if leave was
due, said period can be adjusted against the leave for purposes of computing pensionable service. If the department finds that the deceased
government servant had rendered 20 years pensionary service after adjustment of leaves, if any due, pension would be determined and arrears paid to
the appellant till the date the deceased died.
Reasoned decision would be taken within four months from today and communicated to the appellant.