Mahavir Shah vs State of Uttarakhand & Others

K.M. JOSEPH, C.J. (Oral), SHARAD KUMAR SHARMA, J

Appellant is the Writ Petitioner. The writ petitioner sought the following reliefs:

“(a) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the salary of month of August,

2010 to July, 2011, October, 2011 to July, 2012 and February, 2014 till date alongwith interest @ 8% per annum from the date when the salary became

due till its payment.

(b) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to grant Assured Career Progression

(A.C.P.) to petitioner.

(c) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 8 to transfer/handover the service record

of the petitioner to respondent no. 9 forthwith i.e. prior to retirement of the petitioner on 28.02.2015, so that the pension of the petitioner may be fixed

accordingly.

(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to release the retiral benefit of the petitioner alongwith interest

@ 12% from the date when these became due till the actual payment.â€​

Pleadings were exchanged.

Learned Single Judge by the impugned judgment took note of the contentions in the counter affidavit of the respondents that the petitioner was on

unauthorized leave for the periods, namely, August, 2010 to July, 2011; October, 2011 to July, 2012; & February, 2014 till date. The petitioner has

retired from service w.e.f. 28.02.2015. Learned Single Judge disposed of the matter as follows:

“Petitioner has been denied the salary from August, 2010 to July, 2011, October, 2011 to July, 2012 and February, 2014 till date. Petitioner has also

been denied the benefit of Assured Career Progression Scheme (ACP).

A counter affidavit has been filed by the respondents. It is averred in the counter affidavit that the petitioner has been on un-authorized leaves for the

period, cited hereinabove, and in case he moves an application, the un-authorized absence would be regularized and the petitioner would be released

the benefits i.e. arrears of salary as well the benefit of ACP Scheme.

Petitioner has retired from service. He has not been paid his retiral benefits also. Petitioner has put in requisite number of years entitling him to get the

pension. The pension should have been paid to the petitioner on the due date. Pension is the property of an employee and not a bounty. It is the

property of an employee within the meaning of Article 300-A of the Constitution of India.

Accordingly, the petition is disposed of. The petitioner is directed to file the leave application before the respondents within two weeks from today and

the same shall be considered sympathetically and after regularizing the period, cited hereinabove, the petitioner shall be paid the salary as well as the

benefit of ACP Scheme within ten weeks thereafter. The respondents are further directed to pay the pension/retiral benefits to the petitioner, if not

already paid, within the same period.

Pending application, if any, stands disposed of.â€​

We heard Mr. B.D. Pande, Advocate for the appellant and Mr. Vikas Pande, Standing Counsel for the State/respondents.

Mr. B.D. Pande, learned counsel for the appellant would take exception to the portion contained in last paragraph of the judgment, which we have

extracted hereinbefore.

He would submit that there is now a direction given by the learned Single Judge to the appellant to file leave application before respondents. He

would submit that premise for doing that is that the petitioner was absent from duty. He would point out that if indeed, the appellant was absent from

duty, certainly disciplinary action could have been taken. No such disciplinary action has been taken. It is also his case that he has denied that he was

absent from duty.

The respondents have clearly set out the periods when the appellant was absent from duty. Though there is a denial in the rejoinder affidavit, what

is essentially stated is that it is a case being set up for the first time and no disciplinary action has been taken.

In the facts of this case, we do not see any error in the directions which have been issued, which in fact, are in favour of the appellant as this

application for leave to be filed in compliance thereto has been directed to be considered sympathetically, and the learned Single Judge has disposed of

the Writ Petition with various other directions of which the ultimate beneficiary would be the petitioner only, as we see it. We see no ground to

interfere.

The Appeals fails and the same is dismissed. No order as to costs.