Pramod Kumar Gaur vs Union Of India & Others

L. Narasimha Reddy, J

The applicant joined the service of the Department of Telecommunications (DoT) in March, 1991 as Junior Engineer (Civil). Thereafter, he was

promoted to the post of Assistant Engineer (Civil) in March, 1996. Mahanagar Telephone Nigam Limited (MTNL) was formed in the year 2000. The

applicant was permanently absorbed in that organization, in October, 2000. The MTNL framed the Sabbatical Scheme in the year 2009 for the benefit

of its employees. The Scheme provided for the sanction of leave up to five years, to the permanent employees without pay. The employees are given

an option to join the service on expiry of leave, or to seek voluntary retirement, in case he is covered by the CCS (Pension) Rules, 1972.

The applicant availed this sabbatical leave for the full length of five years, and it expired on 15.01.2016. He issued a notice on 15.01.2016 seeking

voluntary retirement, effective from 24.01.2011. The correspondence ensued, as regards the form of application or the contents thereof and ultimately,

his request was accepted on 30.06.2016, w.e.f. 24.01.2016. The applicant went on making requests, after the expiry of the said period, stating that his

voluntary retirement shall be effective from 24.01.2011 and instead, the respondents have accepted the same w.e.f. 24.01.2016. Through an order

dated 04.07.2016, the respondents declined to modify the effective date of his voluntary retirement and it was reiterated through an office order dated

30.08.2016. This OA is filed challenging the two orders.

The applicant contends that the very purpose of claiming the Sabbatical Scheme was to encourage the employees of MTNL either to acquire

additional qualifications or to seek employment elsewhere, so that the financial burden of the organization is lessened and it is clearly mentioned in

clause 6 that whenever the voluntary retirement is sought by an employee, who is covered by CCS (Pension) Rules, 1972, the retirement would be

effective from the date on which the employee proceeds on sabbatical leave and such a benefit was not extended to him. It is also pleaded that the

relevant rules were amended at a later point of time and the purport thereof cannot be applied to him.

The respondents filed detailed counter affidavit. They did not dispute the fact that the applicant was initially an employee of the DoT and became

an employee of the MTNL and that he has availed the sabbatical leave w.e.f. 24.01.2011. It is stated that though the applicant sought voluntary

retirement, effective from 24.01.2011, there cannot be any acceptance of voluntary retirement anterior to the date on which the request is made. They

have referred to various clauses contained in the Scheme and stated that when there was scope for uncertainty as to the understanding clause 6,

clarificatory steps were taken and that the claim of the applicant cannot be accepted at all.

Ms. Shikha Yarlagadda, learned counsel for the applicant submits that the very purpose of the applicant to avail the sabbatical leave was to seek

voluntary retirement, effective from the date on which he proceeded on sabbatical leave and in fact, clause 6 provides for this. According to her, the

respondents themselves were convinced that the clause 6, as it stood originally, permits an employee to seek voluntary retirement from the date on

which he went on sabbatical leave, and amended the clause in such a way that the voluntary retirement, if sought by an employee, would be effective

prospectively. Learned counsel for the applicant submits that an amended provision cannot be operated retrospectively and the right vested with the

applicant cannot be disturned.

Sh. A.C. Mishra, learned counsel for the respondents â€"MTNL, on the other hand, submits that it was never the intention of the Scheme to permit

an employee to retire much before his application for VRS is accepted. It is stated that when there existed some scope for improper understanding of

the rule, clarification was sought, and a clarificatory amendment in that behalf was carried out.

It is a matter of record that the applicant was initially an employee of DoT and became an employee of MTNL. The Sabbatical Scheme was

introduced in the MTNL in the year 2009. It is relevant to extract the Clause 6 of the Scheme. It reads as under:

“6.0 Notice

An employee will be required to give one month’s notice in writing prior to joining after Sabbatical leave. The employee will have the

option to rejoin during the course of I is Sabbatical Leave after fulfilling the stipulated one month’s notice but not during the first six

months. In case an employee does not wish to rejoin, he/she will have to submit his/her resignation and no notice period will be insisted

upon.

In the case of those employees covered under CCS (Pension) Rules 1972 and are provided with voluntary retirement provision therein,

stipulated notice shall be served to the parent company. In such cases, terminal benefits will be settled as if the employee resigned/retired

the company on the date of leaving on Sabbatical.â€​

The sabbatical scheme is not something which was introduced in the MTNL alone. This facility is created in various other government organizations

also, to enable the employee to improve their qualifications. In addition to their improving the qualifications or expertise, the Scheme framed by the

MTNL gave an opportunity to the employees to migrate to another organization also. In a way, it was one of the economy measure to improve the

establishment.

A perusal of clause 5 discloses that the employees, who have availed the sabbatical leave, are not eligible for regular salary and other benefits,

though continuity of service is provided. This includes the periodical increments or other benefits. Under clause 6, an employee is given option to join

the organization on expiry of sabbatical or halfway through. Another option is to seek voluntary retirement if the employee is covered by the CCS

(Pension) Rules, 1972. The applicant belongs to second category.

The applicant availed the sabbatical leave from 24.01.2011 initially for a period of one year and got extended till 24.01.2016. Before expiry of the

period of five years, he submitted an application seeking voluntary retirement and he mentioned it “as on 24.01.2016â€. Initially the respondents

took objection for the notice period. After some correspondence ensued, they have ultimately accepted the request on 30.06.2016 w.e.f. 24.01.2016.

The applicant is not satisfied with that and insists that the effective date must be 24.01.2011. Heavy reliance is place upon the last sentence of the

clause 6 of the Scheme, which is already extracted in paragraph 7 above.

If the sentence is read in isolation, one would get an impression that an employee, who avails sabbatical leave and seeks voluntary retirement, he

would stand retired from the date on which he proceeded on leave. However, if one takes into account, the basic principles of service law, it becomes

impermissible for an employee to seek voluntary retirement, covering a period during which he was very much in service. The very fact that the

application for voluntary retirement was made on 15.01.2016 and it came to be accepted on 30.06.2016, discloses that till that date, the applicant was

in service and he was entitled to join the duties as of right, on completion of leave.

It is not without any reason that the last sentence in clause 6 is incorporated. The objective was to ensure that the service conditions of the

employee, including that of the pay structure, would stand frozen, from the date on which he applied sabbatical, and the same is evident from clause 5.

Obviously, keeping this in view, the respondents have mentioned in clause 6 that it is with reference to the date on which the employee went on

sabbatical, that benefit shall be reckoned. This aspect was clarified on 24.02.2017 and 02.11.2017. The letter reads as under:

“Please refer to DO letter No. DPG/T/2016/00209, dated 17th October, 2017 addressed to Secretary (T). Secretary (T) has instructed me

to look into the matter and address the issues. I have accordingly, obtained the details of the case which are summarized below:

MTNL introduces a sabbatical scheme in the year 2009. The scheme provides 5 years’ sabbatical leave to all employees wherein their

lien is protected. During sabbatical leave, the employee is not provided any salary or allowances i.e. there will no cash flow from the

company. The period of sabbatical leave is also not reckoned for pension. (It is submitted that pension of MTNL employees under the CCS

(Pension) rules, 1972 are paid by the Government. During the period of service in the company, the pension contribution at the maximum

scale is paid by the company to the government. However, during the period of sabbatical leave, no such pension contribution is paid by the

company to the Government, since no salary has been paid to the employee on sabbatical leave.)

Mr. P. K. Gaur, the petitioner, served as Sub-Divisional Engineer (Civil) in MTNL. He applied under the sabbatical scheme and went on

leave from 2/1/2011. The sabbatical period duration extended upto 24.1.2016. However, on 15/1/2016, he has applied for voluntary

retirement with effect from 25.1.2011, the date of commencement of his sabbatical. The process of voluntary retirement under the rules

requires three months’ notice. M/s MTNL approved the prospective retirement with effect from 24.1.2016 rejecting his claim for

acceptance of his voluntary retirement with effect from 25.1.2011 but accepting substantially his request for waiver of notice period and

waiving the remaining balance notice period, strictly in accordance with the rules governing voluntary retirement.

It is very clear from the above that the retirement of the petitioner was accepted strictly according to the rules. Mr. Gaur is not entitled for

pension for the sabbatical period since no pensionable service has been rendered by him during the sabbatical leave period and no pension

contribution has also been made by the company to the government for this period for the same reason that there has been no service

rendered by him in the company during this period.

The Board of MTNL considered application of Mr. Gaur and certain ‘amendments’ made to the scheme. It is not necessary to dwell

on the ‘amendments’ as they will have prospective effect and shall not apply to the case of the petitioner. The scheme as it stood

before the ‘amendments will have effect in the case of the petitioner. However, a plain reading of the proposal on the file of MTNL

Agenda notes and the Decision of the Board lend credence to the understanding that the ‘amendments’ are more clarificatory in

nature and do not vary the scheme in any manner. But since the term ‘amendment’ have legal implication, we may even ignore them

for the purpose of appreciating the petitioner’s case.

An employee retiring/resigning under CCS pension Rules, 1972 has to provide notice for his voluntary retirement. In the Instant case, the

officer served notice on 15/1/2016 with a request for waiver of notice period and acceptance from the date he proceeded on sabbatical

leave. MTNL substantially accepted his request for waiver of notice period making the retirement effective from 24.01.2016 coinciding with

the ending of his sabbatical leave period but rejected his request for acceptance of voluntary retirement with effect from 25.01.2011, the

date of commencement of his sabbatical and made his retirement effective from 24.01.2016, i.e. date of ending of his sabbatical, waiving of

the balance notice period. In the circumstances, the office is entitled to pension with effect from 24/1/2016, the date of acceptance of his

retirement application.

It appears that the petitioner is under the impression that acceptance of his retirement retrospectively with effect from 25.01.2011 will

enable him to get pension for the sabbatical period as well. He cannot be drawing pension for the period when he had a lien to a post in the

company. The pension is payable only on the acceptance of his retirement from the services of the company that also extinguishes his lien to

a post held by him substantively in the company. Hence, the grant of his pension with effect from 25/1/2011 is untenable and not

maintainable. He is eligible for pension only from 24.01.2016 on acceptance of his voluntary retirement. I am informed by MTNL officers

present at the meeting that the officer has been repeatedly advised to file pension papers but the officer has refused to do so. This is for

your information.â€​

Though clause 6 was amended at a later stage, it was clarificatory in nature and it was not an effort to modify the purport thereof. A clarification,

as and when issued, would operate from the date on which the rule/provision was framed.

A serious inconsistency would arise in case the plea of the applicant is accepted. Take the case of an employee who avails the sabbatical leave

for five years and joins thereafter. On joining, he would not be entitled for any benefit for the period of five years and he would not draw the salary for

that period. In contrast, an employee who avails the sabbatical leave for five years, as did the applicant, and seeks voluntary retirement at the end of

that period, he would be entitled for pension during that period. That can never be the contemplation of any rule making authority, nor is such course

permissible in service law.

We do not find any merit in the OA. It is accordingly dismissed.

Pending MAs, if any, shall stand disposed of.

There shall be no order as to costs.