The absence of a specific declaration regarding the exclusion of suspension periods mandates their inclusion in calculating qualifying service for pension eligibility under CCS Pension Rules.

JUDGMENT :

(G.S.Kulkarni, J.) :-

1. Rule. Rule made returnable forthwith. By consent of the parties Heard finally.

2. This petition under Article 226 of the Constitution of India challenges the denial of pension to the Petitioner on the ground that the Petitioner has not completed ten years of continuous service, on account of the period of suspension undergone by the Petitioner, which was with effect from 2^nd June 2005 to 4^th January 2005 being a period of about 7 months and 2 days. The Petitioner has contended that such period of suspension was required to be reckoned to consider the Petitioner eligible for grant of pension in view of specific provisions of Rule 23 of Central Civil Services (Pension) Rules, 1972 (`CCS Pension Rules) read with clarificatory Office Memorandum No.F 11(3)-E.V (A)76, dated 28^th February 1976. This inasmuch as no specific order was passed to that as period of suspension be excluded from the qualifying service. Hence it was deemed that the period of suspension necessarily was to be taken into consideration and counted in the qualifying service, is the Petitioner’s case.

Facts :

3. The relevant facts are required to be noted. The Petitioner was initially appointed as X-ray Technician by the Respondent/Deolali Cantonment on 7^th May 1985. However, on 6^th December 1985 the Petitioner resigned from the said service. There was a fresh advertisement which was issued in the year 1985 inviting applications for the post of X-ray Technician. The Petitioner participated in the selection process and was issued an appointment order dated 8^th November 1985. It appears to be not in dispute that from the date of joining i.e. 8^th November 1995 up to 2^nd June 2005 which a period of almost 9 years 6 months, there was no grievance in regard to the Petitioner smoothly discharging his duties. However, there was an incident which occurred in the month of June-2005 in which it was alleged that in the discharge of his duties, the Petitioner misbehaved with a poor pregnant lady patient, under the pretext that the internal examination of womb is to be carried out. He undertook the internal examination in absence of Lady Doctor and Sonologist. It was alleged that the Petitioner misbehaved with her amounting to a misconduct. The Petitioner pending a departmental inquiry was placed under suspension on 2^nd June 2005. A departmental inquiry was initiated against the Petitioner on 9^th June 2005 as per the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965. The departmental inquiry culminated into a punishment of compulsory retirement being imposed on the Petitioner vide order dated 4^th January 2005. The departmental appeal against the order of compulsory retirement could not succeed and ultimately after having accepted the decision of the Labour Court dated 9^th July 2014, the Petitioner appears to have accepted the decision of his compulsory retirement.

4. On such backdrop the Petitioner made a representation demanding pension. By communication dated 12^th August 2008 which was in reply to the Petitioner’s representation as to why the Petitioner was not granted pension, the Petitioner was informed by the Respondents that the Petitioner was entitled to receive only the gratuity amount of Rs.1,54,741/- and Rs.39,092/- being the leave encashment.

5. Thus, the only issue which falls for our adjudication in the present petition is as to whether the Respondent’s decision to deny pension to the Petitioner is legal and valid.

6. Before we consider the rival contentions, we note the prayers as made in thi