IMPORTANT POINT
The main legal point established in the judgment is that the period of absence treated as leave without pay cannot be counted as qualifying service for pension in view of Rule 36 of the Railway Service Pension Rules, 1993, and that Rule 14(x) does not apply in this case.

JUDGMENT

RAVI NATH TILHARI, J. - Heard Sri M. Srinivas, learned standing counsel for the Central Government and Sri J.M. Naidu, learned counsel for the respondent No.1.

2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners-Union of India and its authority challenging the order dtd. 28/12/2010, passed by the Central Administrative Tribunal (for short, "the CAT") in Original Application No.594 of 2010, by which the O.A of the 1st respondent herein S.P. Bhattacharya was allowed to the extent indicated in the order to which reference will be made shortly.

3. The 1st respondent was initially appointed as T.C. Fitter on 16/9/1969 in Railway Electrification Project. He was granted temporary status w.e.f 1/1/1984 as Cable Jointer in RE organization. His pay was revised on proforma basis vide proceedings dtd. 1/11/2005 (A-VI). The applicant was absorbed to the post of Rest House Watchman on 4/9/2002 and retired from service on 30/11/2005. On his retirement he was given service certificate stating that he has completed 21 years and 11 months i.e., taken as 22 years service. The applicant came to know that the period from 1/3/1997 to 3/9/2002 has been excluded from his service as he was sick and the period has been taken on leave without pay. A representation was submitted to the authority concerned through General Secretary, NFRC, dtd. 6/8/2008 for counting of 50% casual labour service after attaining temporary status for pensionary benefits, which was rejected by DRM/P/BZA vide its letter dtd. 12/8/2008.

4. The 1st respondent filed O.A.No.594 of 2010 before the CAT to declare the action of the Divisional Railway Manager, South Central Railway, Vijayawada, Krishna District in denying pension and pensionary benefits vide proceedings dtd. 12/8/2008 as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India with further prayer to direct the Union of India and Divisional Railway Manager to sanction and release all pensions along with arrears of pension and pensionary benefits with interest.

5. The petitioners herein contested the matter by filing the counter affidavit. They set up the case that the services rendered by the 1st respondent prior to 1/1/1984 shall not be counted for pension. The Project Casual Labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption as qualifying service for the purpose of pensionary benefits. They submitted that the 1st respondent was appointed as Project Casual Labourer; was granted temporary status and 50% of service rendered as casual labour with temporary status shall be taken for the purpose of pensionary benefits. In regard to full service, the period has been taken from 4/9/2002 to 30/11/2005. They excluded the period for which the 1st respondent was absent and as a result thereof the qualifying service comes to 8 years 5 months and 9 days which is less than the minimum qualifying service of ten years for granting pension. Consequently, his case was considered and rejected by order dtd. 12/8/2008.

6. In regard to exclusion of the period during the absence of the 1st respondent, the stand of the petitioners was that the said period was not regularised and as per Rule 14 of the Railway Service Pension Rules, 1993 (for short, "the Rules, 1993"), the period of absence "leave without pay" "dies non" etc shall not be counted for qualifying service and in view of such rule position, the total period of absence of 2,861 days was not considered as qualifying service period. Consequently, the qualifying service being only 8 years 5 months and 9 days, the 1st respondent was not entitled to get pension.

7. The 1st respondent had submitted before the Tribunal that the leave period was regularised as leave without pay, as such the leave period cannot be treated as unauthorised absence and should b