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Judgment
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s) :-
“(a)Quash the impugned orders of the ACIT Finance for not applying the rules on verification and merely referring the matter to AD VI section of the CBDT and that of the DCIT HQ (personnel) for not applying the relevant rules on verification and that of the ZAO dated 26-06-2024 being arbitrary, malafide, discriminatory and illegal and prejudicial.
(b)To Direct the Pr. DGIT(HRD) or the Pr. CCIT, New Delhi to verify the service book entry in the view of the fact that the break-in-service although within contemplation of DPCwas upon conscious consideration and deliberation not imposed, nor was the salary ever stopped during this period of absence and minor penalty so imposed, would imply that the services stood verified. The Grant or sanction of leave being a formality thereupon
(C)To direct the CBDT to exercise its discretion to grant or sanction of leave, now that break-in service cannot be imposed and that various kinds of leave earned leave, commuted leave, extraordinary leave stood to the credit of the applicant at the relevant point of time.
- The CBDT maybe directed to give effect to the Status-Quo in the alternative, wherein in view of the fact that Break in Service is not contemplated, the status-quo ante of leave without pay, the logical corollary may be officially sanctioned.
-Direct the CBDT to give effect to findings consequent upon adjudication.
(D)DIRECT the ZAO to furnish the basis of provisional pension order under rule 69 of the CCS Pension Rules dated 26-06-2024 especially in the face of a complete absence of any pending on contemplated departmental or judicial proceeding.
(E)Direct the CBDT to furnish reasons for non compliance of the CAT ORDER DESPITE SERVICE OF A CERTIFIED COPY AND DUE CORRESPONDENCE BETWEEN THE DGIT HRD AND AD VI SECTION WHEREIN THE VARIOUS DEPARTMENTAL AUTHORITIES HAVE CONSISTENTLY SOUGHT INSTRUCTIONS FROM THE AD VI SECTION only to be met by a studied indifference to action on any of the said requests and a perverse consideration.‟
The applicant was appointed as the Assistant Commissioner of Income Tax on 09.01.1989, and was later promoted as Joint Commissioner in the year 2000 and Additional Commissioner in 2002. While functioning in Mumbai, the applicant was transferred to the Tamil Nadu charge on 18.07.2001, and stood relieved from the Mumbai charge on 02.08.2001. The applicant proceeded on leave due to severe medical conditions of his parents and remained on leave from 02.08.2001, to 29.07.2003. In the interim, the board transferred the applicant from Tamil Nadu to the Uttar Pradesh West charge on 12.08.2002. The applicant subsequently joined the office of the Chief Commissioner of Income Tax at Meerut on 29.07.2003. The board issued a letter on 06.08.2003, seeking an explanation regarding the absence.
A formal memorandum was issued on 12.12.2007, initiating disciplinary proceedings and contemplating a break in service. These proceedings culminated on 17.02.2011, with the imposition of a minor penalty of reduction by two stages in the time scale of pay for a period of two years without cumulative effect, following the advice of the Union Public Service Commission dated 07.01.2011, proving only the unauthorized absence.
The applicant submitted applications and reminders for regularization of leave on 04.10.2007, and continuously kept sending reminders through proper channels on 24.05.2016, 21.10.2016, 14.12.2016, 17.01.2017, 31.01.2017, 02.05.2017, 17.07.2017, 19.09.2017, 12.10.2017, 17.10.2017, 09.02.2018, and 11.07.2023. Prior to superannuation, internal communications dated 26.02.2024, and 28.03.2024, pointed out that the service book entries for the disputed period were missing verification. The applicant superannuated on 30.04.2024, as a Commissioner of Income Tax after rendering over 35 years of service. Following this, the Principal Chief Commissioner of Income Tax issued a pay fixation order on 09.05.2024, revising the pay to Rs.2,18,200/-as of 01.07.2023. However, the Zonal Accounts Officer issued an order on 26.06.2024, granting only a provisional pension calculated on an unrevised last pay of Rs.2,11,800 under Rule 69 of the Central Civil Services Pension Rules, despite the total absence of any pending judicial or departmental proceedings. Aggrieved by the same, the applicant approached the Tribunal in OA No.2614/2024, wherein an order was passed on 08.07.2024, directing a considered disposal of the representation, which was served on 13.07.2024, but subsequently rejected in a perverse manner on 28.08.2024.
The applicant relied on the decision of the Srinagar Bench of the Tribunal in Kakajee Koul, OA No.276/2024, which establishes that withholding retiral benefits under the guise of administrative delay is completely unlawful.
Pursuant to notice, the respondents filed counter reply opposing the OA. Learned counsel for the respondents contended that the applicant failed to report to the Tamil Nadu charge upon being relieved from the Mumbai charge on 02.08.2001, and remained unauthorizedly absent from duty until he joined the Uttar Pradesh West charge. Disciplinary proceedings were properly instituted against the applicant for this gross misconduct under Rule 14 of the CCS(CCA) Rules, 1965, via a memorandum dated 12.12.2007. The inquiry officer in the report dated 22.05.2008, unequivocally found the charge of unauthorized absence from 03.08.2001 to 26.07.2003, to be fully proved, which led the disciplinary authority to impose a valid penalty on 17.02.2011.
Learned counsel for the respondents submitted that the contention of the applicant that the period from 03.08.2001 to 26.07.2003 be treated as verified since a Break in service cannot be countenanced pursuant to the penalty order is factually incorrect as it has not been mentioned anywhere in the charge sheet or penalty order that the said period was treated as Break in service. Since the period of service was unverified at the time of the applicant's superannuation on 30.04.2024, the Zonal Accounts Officer acted strictly in accordance with the law by issuing the order dated 26.06.2024, which authorized a provisional pension under the statutory frameworks of the pension rules. The respondents further submitted that the representation of the applicant was duly examined and ordered to be disposed of in compliance with the directions given by the Tribunal on 08.07.2024, in the previous Application, and the respondents are unable to regularize a long period of absence without complete compliance with the prescribed leave rules.
In response to the contentions raised by the respondents, the applicant in rejoinder submitted that once the disciplinary authority consciously dropped the charge of break in service and chose to impose only a minor penalty on 17.02.2011, the regularization of the period became a purely consequential administrative formality. The applicant highlighted that the deemed relieving order dated 03.04.2002, was issued by an officer who lacked proper jurisdiction over the applicant's circle, making it void from the beginning. Furthermore, the action of the Zonal Accounts Officer in invoking Rule 69 to issue a provisional pension is completely illegal and demonstrates a lack of basic legal application, as that specific rule strictly requires the actual pendency of departmental or judicial proceedings, whereas no such proceedings have been pending against the applicant since 2011. The respondents have also ignored the valid pay fixation order dated 09.05.2024, causing severe financial prejudice to the applicant. He further submitted that with respect to verification of service, Rule 57 of the CCS (Pension) Rules, 2021 is applicable. The said rule mandates that any letter written in respect of verification in the last two months pending superannuation to the head of office where posted in respect of the period of absence if unanswered the period is to be taken as verified. Besides, in the absence of any relevant entries in the Service Book, Rule 28 cannot be invoked in the last two months. The counter filed by the respondents is silent on the denial of pensionary benefits and fails consciously to address the grievance of the applicant. The respondents failed to exercise its discretion to apply relevant rules and abrogated its discretion to ZAO and AD VI who had no locus standi in the matter.
In sur-rejoinder, the respondents stated that the mere dropping of the break in service charge during a disciplinary inquiry does not automatically operate as a formal regularization or automatic sanction of leave for the period of unauthorized absence. It is submitted that since the period in question has already been held as unauthorized absence with the approval of the competent authority, it cannot be treated as duty period. It is submitted that the delay referred to by the applicant is part of the standard procedural timeline and cannot be attributed to any negligence by the department. The request of the applicant for grant of leave was found covered almost the whole period of his unauthorized absence for which disciplinary proceedings were initiated and penalty was imposed in consultation of the UPSC on the basis of proven charges by the IO. It is submitted that the matter of leave regularization was pending on the issue of unauthorized absence for the period from 03.08.2001 to 26.07.2003. Moreover, the penalty proceeding in respect of unauthorized absence was also pending. Hence, provisionally fixation of pay was made, at that time and on finalization of penalty proceedings on 23.08.2024, regular pay fixation order dated 09.05.2024 was passed and there is no denial of pensionary benefits as claimed by the applicant. The action taken by the department is purely administrative and contains no malice or intent to harass the applicant.
Again in sur-rejoinder, the applicant concluded by stating that the arguments presented by the respondents are self-contradictory and legally unsustainable. The respondents admitted that no judicial or departmental proceedings are pending, yet they continued to maintain the validity of a provisional pension order. In support of his contentions, the applicant has relied upon the judgment of Hon’ble Supreme Court in the cases of Union of India & Ors. Vs. B.V. Gopinath 2014 (1) SCC 352; Pradeep Mehra Vs. Harijivan J. Jethwa in Civil Appeal No.6375/2023; Vishnu Vardhan Vs. The State of Uttar Pradesh & Ors. 2025 INSC 884 Supreme Court; and decisions of the Hon’ble High Court in WP(C) No.2742/2024 dated 10.10.2025 in the matter of Union of India Vs. S.K. Jasra; and in WP(C) No.13223/2019 dated 24.07.2025;
I have heard the learned counsel for the parties and perused the material available on record, as well as the sur-rejoinders filed by the respective parties.
On the pleadings, the following points arise for determination:
Whether the Zonal Accounts Officer could, by order dated 26.06.2024, sanction only a provisional pension to the applicant, when no departmental or judicial proceeding was pending against him on the date of his superannuation, i.e., 30.04.2024;
What is the effect of the penalty order dated 17.02.2011 on the period of absence from 03.08.2001 to 26.07.2003, and whether the non-regularisation of that period could justify withholding the final pension;
Whether the pension of the applicant is to be computed on the pay of Rs. 2,18,200/- as fixed by order dated 09.05.2024, or on the unrevised pay of Rs. 2,11,800/-;
What relief, if any, the applicant is entitled to.
Before adverting to the points, the applicable rules must be identified. The applicant superannuated on 30.04.2024. Rule 5(1) of the Central Civil Services (Pension) Rules, 2021 (hereinafter "the 2021 Rules") provides that any claim to pension shall be regulated by the provisions of those rules in force at the time when the Government servant retires. The 2021 Rules were notified on 20.12.2021 vide G.S.R. 868(E). The claim of the applicant is, therefore, governed by the 2021 Rules. The impugned order dated 26.06.2024 refers to Rule 69 of the Central Civil Services (Pension) Rules, 1972. The corresponding provision in the 2021 Rules is Rule 8(3) to (5). Nothing turns on the difference in numbering, since the two provisions are in pari materia, but the matter is examined under the 2021 Rules.
Point (i): Provisional pension
Rule 8(3) and 8(4)(a) and (b) of the 2021 Rules read as under:
"(3)In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings instituted under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are continued under sub-rule (2), a provisional pension as provided in sub-rule (4) shall be sanctioned.
(4)(a) In respect of a Government servant referred to in sub-rule (3), the Accounts Officer shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.
(b)The provisional pension shall be authorised by the Accounts Officer during the period commencing from the date following the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority."
Clause (d) of sub-rule (4) then provides:
"(d)The provisions of this sub-rule shall not be applicable where allegations of misconduct are under investigation against a Government servant or where departmental or judicial proceedings are contemplated against a Government servant but have not actually been instituted or deemed to have been instituted in accordance with sub-rule (9) till the date of retirement of the Government servant. The pension and gratuity in such cases shall be authorised to be paid to the Government servant on his retirement in accordance with rule 63"
Under Explanation (1)(a) to Rule 8, departmental proceedings are deemed to be instituted on the date on which the statement of charges is issued to the Government servant.
A plain reading of these provisions shows that provisional pension is a mechanism tied to the pendency of a departmental or judicial proceeding, instituted before retirement and continued thereafter, or instituted after retirement. It ends when final orders are passed in that proceeding. Clause (d) makes it explicit that even a proceeding which is merely contemplated, or an allegation which is merely under investigation, will not attract provisional pension; in such cases pension and gratuity are to be paid in the ordinary course. A fortiori, provisional pension cannot be sanctioned where the only proceeding ever instituted had concluded long before retirement.
In the present case, the only statement of charges issued to the applicant is the memorandum dated 12.12.2007 under Rule 14 of the CCS (CCA) Rules, 1965. The inquiry officer reported on 22.05.2008, the Union Public Service Commission tendered its advice on 07.01.2011, and the disciplinary authority imposed the minor penalty of reduction by two stages in the time scale of pay for two years without cumulative effect by order dated 17.02.2011. The respondents themselves describe this as a valid penalty (para 6 above). The penalty has not been challenged and has attained finality. On 30.04.2024, therefore, no departmental proceeding was pending against the applicant, and it is nobody's case that any judicial proceeding was pending.
In their sur-rejoinder (para 9 above), the respondents have stated that the "penalty proceeding" in respect of the unauthorised absence was also pending, that pay was fixed provisionally for that reason, and that on finalisation of the penalty proceedings on 23.08.2024, the regular pay fixation order dated 09.05.2024 was passed. This plea cannot be accepted. No charge memorandum other than that dated 12.12.2007 has been placed on record, nor any order dated 23.08.2024 concluding any proceeding. The plea is contrary to the respondents' own stand in the counter reply that the penalty was validly imposed on 17.02.2011. It is also internally inconsistent: an order dated 09.05.2024 could not have been passed upon the finalisation of a proceeding on 23.08.2024. The applicant is right in his submission (para 10 above) that the respondents, while accepting that no proceeding is pending, continue to defend a provisional pension order.
The real reason for the impugned order, as the respondents themselves put it in the counter reply (para 7 above), is that the period of service from 03.08.2001 to 26.07.2003 was unverified on the date of superannuation. That is not a ground on which Rule 8 permits provisional pension. Pension is not a bounty but a right earned by service, and it can be withheld or curtailed only under the authority of a statutory rule; executive instructions or administrative convenience will not suffice. This is the settled position in State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr., (2013) 12 SCC 210 wherein the Hon’ble Supreme Court held that the right to receive pension is a right identified under Art. 300 A of the Constitution. The Court held-
“16.The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:
“300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law. Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
The Hon’ble Supreme Court in Jitendra Kumar Srivastava (supra) also relied upon Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 in following words,
“14.The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330, 1971 Supp SCR 634, as is apparent from the following discussion:
“27.The last question to be considered, is, whether the right to receive pension by a government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
28.According to the petitioner the right to receive pension is property and the respondents by an executive order dated 12-6-1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on 5-8-1996. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.
29.We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of qualifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. The rules, we have already pointed out, clearly recognise the right of persons like the petitioners to receive pension under the circumstances mentioned therein.
30.The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India AIR 1962 Punj 503. It was held that such a right constitutes „property‟ and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh ILR (1965) 2 Punj 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is „property‟ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as „property‟ cannot possibly undergo such mutation at the whim of a particular person or authority. 31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R Erry v. State of Punjab AIR 1967 Punj 279, ILR (1967) 1 Punj 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
32.This Court in State of M.P v. Ranojirao Shinde AIR 1968 SC 1053, (1968) 3 SCR 489 had to consider the question whether a „cash grant‟ is „property‟ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing „it is obvious that a right to sum of money is property‟.
33.Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.”
It is amply clear and settled from the catena of judgments that the withholding of a part of pension and gratuity on the basis of circulars is impermissible until a statutory rule authorising it came into force.
The recent decision of the Supreme Court in Bikram Chand Rana v. Himachal Pradesh Road Transport Corporation, 2026 INSC 326, construing Rule 69(1)(c) of the 1972 Rules as a bar on payment of gratuity so long as either a departmental or a judicial proceeding remains pending, does not assist the respondents. That decision proceeds on the admitted pendency of a criminal proceeding at the time of retirement and in the present case no proceeding of either kind was pending.
Point (i) is accordingly answered in the negative. The order dated 26.06.2024, to the extent it sanctions only a provisional pension under Rule 69 of the 1972 Rules (Rule 8 of the 2021 Rules), is without authority of law.
Point (ii): The absence period 03.08.2001 to 26.07.2003
The applicant contends that once the disciplinary authority dropped the proposal of break in service and imposed only a minor penalty, regularisation of the period became a purely consequential formality. The respondents contend that dropping the break in service does not by itself amount to sanction of leave, and that a period held to be unauthorised absence cannot be treated as duty.
Neither contention can be accepted in its entirety. In State of Punjab v. Dr. P. L. Singla, (2008) 8 SCC 469, the Supreme Court explained that when an employee absents himself without authority, the employer may either condone the absence by sanctioning leave, or treat it as misconduct and impose a penalty after inquiry. The Court further explained that, even where a penalty is imposed, the period of absence still has to be accounted for, since an absence which remains unaccounted results in a break in service affecting pay, seniority and pension; and that such accounting, for instance by grant of extraordinary leave, neither exonerates the employee nor wipes out the penalty. The Hon’ble Court held thus:
“11.Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.
12.An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorised absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorised absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorised absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.”
It follows that the penalty of 17.02.2011 did not, by itself, regularise the period as duty or leave, as the respondents rightly say. It equally follows that the respondents were bound to account for the period by an appropriate order, which they have not done in the thirteen years between the penalty and the applicant's superannuation.
The consequences of an interruption in service, and the power to deal with it, are now found in Rules 27 and 28 of the 2021 Rules. Rule 27 reads:
"27.Effect of interruption in service.- (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases, namely:-
(a)authorised leave of absence ;
(b)unauthorised absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively; ...
(2)Notwithstanding anything contained in sub-rule (1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave." Rule 28, insofar as relevant, provides:
"28.Condonation of interruption in service.- (1) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government ... shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. ...
(3)The period of interruption referred to in sub-rule (1) shall not count as qualifying service. ...
(5)The appointing authority may take a decision not to condone interruption in service only in exceptional and grave circumstances.
(6)No such order against condonation of interruption in service shall be passed by the appointing authority without extending to the Government servant a reasonable opportunity of representation and being heard in person."
On the respondents' own showing, neither the charge sheet nor the penalty order treats the period as a break in service (para 7 above). No order under Rule 28(5) has been passed, and no opportunity under Rule 28(6) has been extended. The internal communications dated 26.02.2024 and 28.03.2024 record only that the service book entries for the period were awaiting verification, not that the service book contains any specific indication against condonation. In these circumstances, the interruption, if it be one, stands condoned by operation of Rule 28(1), and the service of the applicant prior to 03.08.2001 cannot be forfeited. What remains open is a narrower question: whether the period from 03.08.2001 to 26.07.2003 itself is to be counted, and if so how it is to be treated (as leave of the kind due, or as extraordinary leave under Rule 27(2), with or without counting as qualifying service). That is a decision which the rules vest in the appointing authority, to be taken by a reasoned order after considering the applicant's applications for leave pending since 04.10.2007 and the reasons he has given for his absence. In taking that decision, the authority will also have regard to the Explanation to Rule 21 of the 2021 Rules, which requires that where extraordinary leave is not to count as qualifying service, a definite entry to that effect be made in the service book not later than six months before superannuation, failing which the period of extraordinary leave is to be treated as qualifying service.
The delay in taking that decision is attributable entirely to the respondents. The applicant applied for regularisation of leave on 04.10.2007 and followed it with reminders dated 24.05.2016, 21.10.2016, 14.12.2016, 17.01.2017, 31.01.2017, 02.05.2017, 17.07.2017, 19.09.2017, 12.10.2017, 17.10.2017, 09.02.2018 and 11.07.2023. Moreover the Rule 30 of the 2021 Rules obliged the Head of Office to verify the applicant's service, and to communicate the qualifying service so determined, on his completing eighteen years of service and again when he was left with five years before superannuation. The respondents' submission that the delay is part of the standard procedural timeline (para 9 above) is not borne out by the record. A retiring officer cannot be made to bear the consequences of the department's own inaction by being placed on provisional pension.
The applicant has also invoked Rule 57 of the 2021 Rules to contend that the period must be taken as verified, since the letters sent in the last two months before superannuation went unanswered. In view of the conclusions above, it is unnecessary to decide the precise scope of Rule 57, and the question is left open.
It must also be noticed that the disputed period does not, on the material placed before me, affect the amount of pension. The applicant joined service on 09.01.1989 and superannuated on 30.04.2024, a span of over thirty-five years. Even if the period from 03.08.2001 to 26.07.2003 was wholly excluded, his qualifying service would exceed thirty-three years. Under Rule 44(1) of the 2021 Rules, a Government servant who retires after completing qualifying service of not less than ten years is eligible for pension calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial. The respondents have not shown that the treatment of the disputed period would alter the pension payable. Withholding the regular pension of the applicant pending a decision on that period was, therefore, also wholly disproportionate. Whether the treatment of the period has any bearing on other retiral dues is for the competent authority to work out in accordance with the rules.
Point (ii) is answered accordingly: the penalty dated 17.02.2011 did not by itself regularise the period, but the pre-interruption service of the applicant cannot be forfeited, the treatment of the period remains to be decided by the appointing authority, and its pendency was no ground for withholding the final pension.
Point (iii) and the remaining contentions
By order dated 09.05.2024, the Principal Chief Commissioner of Income Tax revised the pay of the applicant to Rs. 2,18,200/- with effect from 01.07.2023, i.e., before his superannuation. That order has not been withdrawn or modified. The respondents themselves, in their sur-rejoinder, describe it as the regular pay fixation order (para 9 above). Under Rule 31 of the 2021 Rules, emoluments for the purpose of pension are the emoluments which the Government servant was receiving immediately before his retirement. The computation of pension on the unrevised pay of Rs. 2,11,800/- in the order dated 26.06.2024 is, therefore, contrary to the respondents' own fixation and cannot be sustained. Point (iii) is answered in favour of the applicant.
The applicant has also urged that the competent authority abdicated its discretion to the Zonal Accounts Officer and AD VI. There is substance in this. The powers to commute a period of absence retrospectively as extraordinary leave under Rule 27(2), and to decline condonation under Rule 28(5), vest in the appointing authority. The Zonal Accounts Officer, while authorising pension, could not decide the treatment of the period by default, nor could the period be left undecided indefinitely with provisional pension as the consequence. The order dated 28.08.2024 rejecting the applicant's representation suffers from the same infirmity.
The applicant has further contended that the deemed relieving order dated 03.04.2002 was issued by an officer lacking jurisdiction over his circle and is void, and in that context relied on Union of India & Ors. v. B.V. Gopinath, (2014) 1 SCC 351, and on the judgment of the Hon'ble High Court of Delhi in Union of India & Ors. v. S.K. Jasra, W.P.(C) No. 2742/2024, decided on 10.10.2025. Both decisions concern the requirement that a charge memorandum issued under Rule 14(3) of the CCS (CCA) Rules, 1965, be approved by the disciplinary authority, and the consequences of the absence of such approval. The validity of the memorandum dated 12.12.2007, or of the penalty dated 17.02.2011, is not an issue in this OA, and no relief is sought in respect of either. In view of the conclusions reached on points (i) to (iii), it is unnecessary to examine the validity of the order dated 03.04.2002, and the question is left open.
The other decisions cited by the applicant may be briefly noticed. Pradeep Mehra v. Harijivan J. Jethwa (since deceased) through LRs, Civil Appeal No. 6375/2023, 2023 INSC 958, concerns objections to the execution of a decree under Section 47 and Order XXI of the Code of Civil Procedure, 1908. Vishnu Vardhan @ Vishnu Pradhan v. State of Uttar Pradesh & Ors., 2025 INSC 884, concerns the limits of the doctrine of merger where an earlier order is alleged to have been obtained by fraud. Neither decision bears on the questions arising here. The order of the Srinagar Bench of this Tribunal in Kaka Jee Koul v. Government of J&K, O.A. No. 276/2024, arose under different rules and concerned retiral benefits withheld on account of a criminal case; it is of persuasive value only, though the general principle which is reiterated in that case, that retiral dues ought not to be withheld for long periods without lawful cause, is consistent with the view taken above.
Conclusion and directions
In view of the foregoing discussion, the OA is partly allowed in the following terms:
The order dated 26.06.2024 passed by the Zonal Accounts Officer, sanctioning provisional pension to the applicant under Rule 69 of the CCS (Pension) Rules, 1972 on the basis of an unrevised last pay of Rs. 2,11,800/-, and the order dated 28.08.2024 rejecting the representation of the applicant, are quashed and set aside.
The respondents shall finalise the pension of the applicant as a Government servant against whom no departmental or judicial proceeding was pending on the date of his superannuation, compute it on the basis of the pay of Rs. 2,18,200/- as fixed by order dated 09.05.2024, and issue the regular Pension Payment Order within eight weeks from the date of receipt of a certified copy of this order. The arrears, being the difference between the pension due and the provisional pension already paid, shall be released within the same period.
Retirement gratuity, the commuted value of pension (if commutation has been applied for), leave encashment and other retiral dues, to the extent withheld on account of the impugned orders, shall also be released within the same period of eight weeks.
The appointing authority shall, by a reasoned and speaking order, decide the manner in which the period from 03.08.2001 to 26.07.2003 is to be treated, in accordance with Rules 21, 27 and 28 of the CCS (Pension) Rules, 2021 and the applicable leave rules, after considering the applicant's applications and reminders on record and after affording him a reasonable opportunity of representation and of being heard in person. This shall be done within eight weeks from the date of receipt of a certified copy of this order, keeping in view the findings recorded in paras 24 to 31 above. In no event shall the service of the applicant prior to 03.08.2001 be treated as forfeited. The pendency of this exercise shall not delay compliance with directions (ii) and (iii). Any consequential adjustment of retiral dues arising from that decision shall be made in accordance with the rules after notice to the applicant.
The arrears of pension and the retiral dues referred to in directions (ii) and (iii) shall carry simple interest at the rate applicable to General Provident Fund deposits from time to time, from 01.08.2024 till the date of actual payment.
If the applicant remains aggrieved by the order passed under direction (iv), he shall be at liberty to seek his remedy in accordance with law.
All the pending MAs, if any, shall stand disposed of. There shall be no order as to costs.