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Judgment
S. Abdul Nazeer, J.—This writ petition is directed against the order in Application No. 1533/2006 dated 14.08.2012, whereby the Karnataka Administrative Tribunal, Bangalore has allowed the application and has quashed the endorsement at Annexure-A.22 issued by the first respondent.
The respondent herein joined the services of petitioner No. 1 as Professor in Botany in the year 1961. From 04.1.1997 to 03.01.1973 the respondent was on study leave to pursue Ph.D. On 03.01.1973, the study leave was further extended till 03.01.1974. The respondent made a further request to extend the study leave which was rejected by the petitioners on 14.11.1975. He was directed to join duty at Kolar on 01.12.1975. The respondent started working in a college at Kolar on 03.12.1975. It is the case of the respondent that he had worked for six months at Kolar. Since he was not paid salary, he remained unauthorisedly absent. He was superannuated on 25.6.1992. It appears that the petitioners held an enquiry against the respondent in relation to his unauthorized absence. The first respondent issued an endorsement at Annexure-A.22 treating the period of unauthorized absence from 04.01.1971 to 11.4.1992 (except 2.12.1975) as suspension period and that he is not eligible for pensionary benefits on account of non-completion of ten years of qualifying service. The Tribunal has allowed the application in the following terms:
(I) The Application is allowed-in-part.
(II) The impugned order No. ED.196.DCE.91 dated 11.8.2005 is upheld except to the following extent;
(i) treating the period from 4.10.1971 to 11.4.1992 (except 2.12.1975) as ''dies non'' is ordered to be treated as ''leave without salary'' in accordance with the provisions of Rule 106-A of the KCSRs.
(ii) The order portion that the Applicant has not completed ten years of qualifying service in accordance with Rules 222 and 291 of the KCSRs, is quashed. The endorsement dated 5.10.2005 issued by the Director, Collegiate Education, is also quashed;
(iii) The respondents are directed to recalculate the qualifying service of the applicant by considering counting of extraordinary leave to the extent of maximum three years to the qualifying service;
(iv) The respondents are directed to fix his eligible pensionary benefits in accordance with the provisions of Rules 292 and 201-B to 291-E of the KCSRs, since a Government Servant who has completed five years of qualifying service is eligible for pensionary benefits.
(v) The respondents are directed to comply with the order within three months from the date of receipt of the certified copy of this order.
The contention of the learned AGA appearing for the petitioners is that having regard to the proviso to Rule 106-A of the KCSR, the direction of the Tribunal to treat the period from 04.10.1971 to 11.04.1992 (except 02.12.1975) as leave without salary'' is illegal and contrary to law. The other directions contained in the order are also not in accordance with law. The respondent has not put in minimum qualifying services for grant of pensionary benefits as per Rules 222 and 291 of KCSRs''.
On the other hand, learned Advocate appearing for the respondent has sought to justify the impugned order. It is contended that a Proviso to Rule 106-A of KCSR has been inserted by notification No. FD 8 SRA 2004 dated 20.10.2004 which has come into force from 28.10.2004. This proviso is prospective in nature. The respondent had attained the age of superannuation on 25.6.1992. Therefore, treating the unauthorized absence as ''dies non'' is not permissible in law.
We have carefully considered the arguments made at the Bar and perused the material placed on record.
Rule 106-A of KCSR states a Government servant who absents himself from duty without leave will not be entitled to any salary for the days of absence and the period of such absence shall be debited to his leave account as though it were half pay leave to the extent such leave is due and as extraordinary leave to the extent the period of half pay leave falls short of the period of such absence unless leave is granted by a Competent Authority for the days of such absence.
In the instant case, the period of absence has been debited to his leave account as though it were half pay leave to the extent such leave is due. When the period of half pay leave had fallen short of the period of such absence, it has been treated as extraordinary leave. This is in conformity with Rule 106-A of the KCSR.
Proviso to Rule 106-A of KCSR has been inserted by notification No. FD-8-SRA-2004 dated 20.10.2004, which has come into force from 28.10.2004. It is not the case of the petitioners that the said proviso has retrospective effect. Rule 8(14-A) defines the meaning of ''dies non'' as non-duty period or period not spent on duty. It further states that the period treated as ''dies non'' will not count as service nor will it be construed as break in service. This definition has also been inserted by Notification No. FD-6-SRA-99 dated 15.12.1999, which has come into force from 20.01.2000. Therefore, proviso to Rule 106-A of the KCSR has no application to this case as the respondent was superannuated on 25.6.1992. Taking note of Rule 106-A of KCSR, the Tribunal has rightly directed the authorities to treat the period from 4.10.1971 to 11.4.1992 (except 2.12.1975) as leave without salary'' in accordance with Rule 106-A of KCSR. We do not find any error in the said order. Writ petition fails and it is accordingly dismissed. The petitioners are granted two months time from the date of receipt of copy of this order for implementation of the order of the Tribunal. No costs.