The discretion to grant pension or compassionate allowance should be based on relevant and reasonable considerations, and the absence of proven misconduct should be taken into account. The court emphasized the need for a fair and reasoned decision in such matters.

Vipin Sanghi, J.

The petitioner, who appears in person, assails the order dated 09.10.2018 passed by Central Administrative Tribunal ('the Tribunal' for short) in OA No. 1805/2017. The Tribunal has rejected the original application preferred by the petitioner wherein he had assailed the orders/communications issued by the respondent, denying his claim for the pension. He further sought direction to the respondent to pay him pension and other related entitlements along with arrears and interest thereon.

2. The petitioner was appointed to the Indian Administrative Service in 1971. In 1993, the petitioner was deputed on foreign assignment as Policy Advisor in United Nations. Prior to completion of five years on foreign assignment (which was permissible under the consolidated instructions relating to foreign assignments of Indian experts), the petitioner was transferred within the United Nations by the Secretary General. The Government of India considered the said transfer as a fresh deputation, and his foreign assignment was not extended beyond 1995.

3. The petitioner represented for extension of his foreign assignment and same was also recommended by State of UP. However, that request was not exceeded to. Eventually, since the petitioner did not rejoin despite notices, the President was pleased to issue a Notification dated 18.05.2001, whereby the petitioner was deemed to have resigned from the Indian Administrative Service with effect from 01.07.1995 in terms of Rule 7(2) of the All India Service (Leave) Rules, 1955. The same reads as under:

“The President is pleased to direct that Shri. Mukul Sanwar, a member of the Indian Administrative Service, borne on the Cadre of Uttar Pradesh (1971 batch) is deemed to have resigned from the Indian Administrative Service w.e.f 01.07.1995 in terms of All India Service (Leave) Rules, 1955.”

4. We may reproduce Rule 7 of the All India Service (Leave) Rules, 1955 under which the petitioner was declared as deemed to have resigned. The same reads as follows :

“7. Maximum period of absence from duty. No member of the service shall be granted leave of any kind for a continuous period exceeding five years.

2. A member of the service shall be deemed to have resigned from the service if he

(a) is absent without authorization for a period exceeding one year from the date of expiry of sanctioned leave or permission, or

(b) is absent from duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year, or

(c) continues of foreign service beyond the period approved by Central Government.

Provided that a reasonable opportunity to explain the reason for such absence or continuation of foreign service shall be given to the member of the service before the provisions of this service rules are invoked.” (emphasis supplied)

5. The petitioner, admittedly, accepted the said notification and did not assail the same in any proceedings. Even when he filed the present original application before the Tribunal, there was no challenge raised to his deemed resignation. Thus, the status of the petitioner as “deemed to have resigned”, is not in question.

6. In 2016, the petitioner for the first time, raised the claim that his deemed resignation may be treated as voluntary retirement from service from July 1995. He also claimed that he be released his pension with arrears, on the premise that his deemed resignation under Rule 7(2) of the All India Service (Leave) Rules, 1955 does not tantamount to misconduct, and his status as “deemed to have resigned” does not invite the penalty of forfeiture of his past service.

7. Since the petitioner's representations were not acceded to, he approached the Tribunal.

8. The submission of the petitioner is that his deemed resignation under Rule 7(2) of the All India Service (Leave) Rules, 1955 does not tantamount to a punishment for misconduct. In this regard, he has placed reliance on a judgment of the Kerala High Court in M.P. Joseph vs.