ORDER
Meera Chhibber, Member (J)
1. By this OA applicant has sought following relief:
Issue a direction quashing and setting aside impugned Memorandum dtd. 27.9.2005 annexed hereto as Annexure A-1;
Direct that the period from 4.2.1990 till 18.4.1996 be counted and treated as periods spent on duty along with all consequential benefits;
Direct that the Applicant is entitled to arrears of pay and allowances during the period 4.2.1990 till 18.4.1996;
Direct that the Applicant has spent more than 20 years of qualifying service and she is entitled to seek voluntary retirement.
2. The brief facts as stated are that applicant joined as PRT in Kendriya Vidyalaya on 01.7.1974. On 23.10.1989, she sought six months’ leave to see her husband who was in abroad. However, she was granted only three months’ leave w.e.f. 10.11.1989. Accordingly, she should have joined on 08.2.1990. But once she reached abroad she herself fell sick, so she sent applications along with medical certificates for extension of leave. However, no reply was sent to her. She finally reported at KV AFS, Agra for duty on 17.10.1994 but she was not allowed to join. The orders of posting were issued only on 18.4.1996, whereby she was posted to KV, Bhind. Applicant gave representation that she may be posted somewhere near Agra in view of her ailing health but no reply was given to her. She finally requested for voluntary retirement vide her request dated 21.10.2002 (page-31) as she was not being given posting of her choice. Since no reply was forthcoming on her that request also, she filed OA No. 2938/2003, which was disposed of on 27.5.2004 (page-39) by directing the respondents to consider her representation filed on 21.10.2002 and give due consideration to the prayers and pass a reasoned and speaking order within a period of two months from the date of receipt of a copy of the order.
3. Respondents then passed speaking order dated 01.9.2004 (page-43 at 45) but according to the applicant, respondents considered only the question of voluntary retirement by saying that she had not yet completed twenty years’ of service, therefore, her request for voluntary retirement could not be acceded to. However, her request for posting her near Agra was not even considered. Therefore, she filed another OA bearing No. 2714/2004, which was disposed of on 31.5.2005 (page-14 at 17). It is recorded in the order that in the meantime applicant had joined her duties at Bhind on 05.5.2005 therefore, nothing more survives. Respondents stated that they would now consider whether applicant would be entitled to any consequential benefits or not within a reasonable period. Accordingly, respondents were directed to pass orders for consequential benefits including arrears of pay with effect from 17.10.2004, if any, within a period of three months as per law.
4. Pursuant to this OA, respondents passed memorandum dated 27.9.2005, whereby period from 8.2.1990 to 05.5.2005 was treated as ‘dies-non’. It is this order, which has now been challenged by the applicant in the present OA.
5. It is submitted by the counsel for applicant that since applicant had reported for duty on 17.10.1994 and she was not given any posting by the respondents till 18.4.1996, this period could not have been treated as ‘dies-non’. Counsel for applicant also submitted that admittedly applicant had worked from 01.7.1974 to 07.2.1990, therefore, this period comes to 15 years and 7 months. Thereafter, she reported on 17.10.1994 and she was not given any posting till 18.4.1996, therefore, aforesaid period has also to be counted for computing the period of twenty years. Thereafter she joined on 06.5.2005 and is still working. Moreover, speaking order was passed on 01.9.2004 whereas this Tribunal had directed the respondents to decide the question of her posting vide judgment dated 27.5.2004, therefore, the period from 27.5.04 to 01.9.04 should also be counted in her favour and if all these periods are counted together, she would have completed twenty years’ of service to enable her to make request for voluntary retirement, therefore, her request for voluntary retirement should be considered now.
6. Apart from it, counsel for applicant also submitted that applicant has already given detailed representation on 28.7.2007 requesting the authorities to post her nearby Agra as she is not keeping good health (as she is suffering from cancer) and there are vacancy also available near Agra, which she has mentioned in representation dated 16.8.2007 (page-64 and 66 of the OA). Therefore, respondents may be directed to consider her case for posting her near Agra.
7. Counsel for respondents, on the other hand, very fairly conceded that in the impugned order the period from 17.10.1994 to 18.4.1996 could not have been treated as ‘dies-non’ because once she had reported for duties and no posting orders were issued, the said period could not have been treated as ‘dies-non’ against the applicant. As far as request for voluntary retirement is concerned, he submitted that since applicant has still not completed twenty years’ of service, she may make her request after she feels she has completed twenty years’ of service. Her request would be considered appropriately. On the question of her request for posting in Agra, counsel for respondents submitted that let applicant give a detailed representation along with her medical certificates to show that she is suffering from cancer and also point out the vacancies available in Agra or nearby Agra so that her request may be considered appropriately.
8. I have heard both the counsel and perused the pleadings as well. Admittedly, applicant was granted leave only for three months with effect from 10.11.1989 and thereafter, she did not join till 16.10.1994 and kept giving only applications, as per her saying, for granting extension of leave, which was indeed never granted. It is too well settled that leave cannot be taken as a matter of right unless it is sanctioned by the authorities, therefore, the period from 08.2.1990 till 16.10.1994 has rightly been treated as ‘dies-non’ by the respondents. However, I find force in the contention of applicant that her period from 17.10.1994 till 18.4.1996 could not have been treated as ‘dies-non’. It is seen from the pleadings that applicant had categorically stated in ground (C) that she had reported for duty at KV AFS, Agra on 17.10.1994 but respondents refused to give her any order of posting. This categorical averment has not been disputed by the respondents in para-20 of the reply. On the contrary, they have themselves stated that her long unauthorized absence from duties from 04.2.1990 to 17.10.1994 cannot be termed as a period, which could be counted for the purpose of granting voluntary retirement. Therefore, in other words, it is an admitted fact by them that applicant did report on 17.10.1994. This also finds mention in judgment dated 31.5.2005 in OA 2714/2004, as it is recorded therein that she returned on 17.10.1994 but was not allowed to join at Agra. In view of above, I am satisfied that applicant’s period from 17.10.1994 to 18.4.1996 could not have been treated as ‘dies-non’. It shall count as service for the purpose of counting qualifying service for voluntary retirement. Therefore, to this extent order dated 27.9.2005 is quashed and set aside. It is made clear that only the period from 17.10.1994 to 18.4.1996 cannot be treated as ‘dies-non’. Rest of the period has rightly been treated as ‘dies-non’ by the respondents because even after the respondents issued the order dated 18.4.1996 applicant did not join at Bhind and only kept giving her representations. She finally joined only on 05.5.2005 at Bhind during the pendency of her second OA No. 2714/2004. No fresh order was required to be issued by the respondents because once order of transfer or posting was issued, it was the duty of the applicant to join there and then give her representation in case she was aggrieved of such posting.
9. Coming to the second request of applicant, it is seen that while deciding the OA 2714/2004, this Tribunal had already returned a finding that applicant had not even completed twenty years’ of service, therefore, it is not open to the applicant to re-agitate the same issue now without making a fresh request. In case after counting the period from 17.10.1994 to 18.4.1996 (as spent on duty for the purpose of seeking voluntary retirement) alongwith from other period of service, which she had rendered lawfully, if applicant feels she has completed twenty years’ of service, it would be open to her to renew her request again making a proper application seeking voluntary retirement. In such an event, I am sure that respondents would give due consideration to the facts of the case and then pass an appropriate speaking order thereon.
10. As far as her request that she be posted in some other school in Agra or nearby station because she is suffering from cancer, it would be better if applicant gives a self-contained representation including the medical certificates to show that she is suffering from cancer and by showing the schools either in Agra or nearby vicinity where vacancy of PRT is available to the respondents. In case such a representation is made, Respondents shall consider her request sympathetically and see if she can be accommodated in any school either in Agra or nearby vicinity keeping in view her health condition. I am sure that respondents would apply their mind to the health problem of the applicant. Counsel for applicant states that applicant shall give her representation within two weeks. In case the representation is given within two weeks, respondents shall decide the same within three months thereafter by passing a reasoned and speaking order under intimation to the applicant.
11. With above directions, OA stands disposed of. No order as to costs.
