An undertaking not to claim salary does not prevent counting intervening employment periods for pension calculation after judicial reinstatement.

ORDER :

Heard.

2. This appeal is directed against the order dated 12.05.2023 passed by the learned Single Judge, whereby the writ petition filed by the appellant-petitioner has been dismissed.

3. Quintessential facts necessary for decision of the controversy involved in the instant appeal are stated infra.

4. The petitioner (appellant-herein) was initially appointed on the post of Teacher on 30.12.1985 on which he continued till his services were terminated vide order dated 08.01.1993. The order was assailed by filing S.B. Civil Writ Petition No.254/1993. That writ petition came to be finally disposed of vide order dated 09.08.1995, relying upon earlier orders passed by this Court. Thereafter, the appellant-petitioner was reinstated in service vide order dated 10.03.2000 on the undertaking that he will not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment. The appellant-petitioner thereafter continued in service and retired upon attaining the age of superannuation on 30.06.2017. While preparing appellant-petitioner's case of pension, the entire period of service during which he had remained out of employment was not counted. This resulted in reduction in qualifying period of services for the purposes of computing pension. The action of the respondent was challenged by the appellant-petitioner by filing writ petition. The learned Single Judge, however, dismissed the writ petition on the ground that the appellant-petitioner having given undertaking that he would not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment, is estopped and not entitled to get the reliefs sought by him that the intervening period during which he remained out of employment should be counted for the purpose of pension.

5. Submission of learned counsel for the appellant is that the undertaking given on 10.03.2000 which resulted in his reinstatement vide order of reinstatement dated 10.03.2000 passed by the State Government, does not have any effect and impact insofar as the computation of qualifying period of services for the purposes of grant of pension is concerned. His submission is that it was not a case of fresh appointment, but a case of reinstatement. If the appellant-petitioner in the unequal bargaining situation had given up his claim for salary and arrears of pay in respect of the intervening period, that will not result in depriving him of the benefit of qualifying services of the period during which he remained out of employment and such an action of the respondents is against the order of reinstatement dated 10.03.2000 and subsequent order passed by the State Government on 14.03.2017.

6. Per contra, learned Additional Advocate General would argue that when the appellant-petitioner was reinstated in service, he had given undertaking that he will not claim salary and arrears of pay in respect of the intervening period during which he remained out of employment. He would further submit that though the State Government had passed certain orders, the order dated 14.10.2015 passed by the Block Elementary Officer clearly stated that the appellant-petitioner has been given fresh appointment on 20.04.2000 and confirmed on 20.04.2002. Therefore, the intervening period could not be taken into consideration for any purposes whatsoever. He would further submit that even if the appellant-petitioner is treated as having been reinstated in service vide order dated 10.03.2000 and intervening period regularized as extraordinary leave without pay, in view of provision contained in Rule 20 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short 'the Rules of 1996'), that period could not be counted for the purposes of pension.

7. It is not in dispute that the appellant-petitioner was initially appointed on temporary basis vide order dated 28.12.1985 after his selection and on a regular pay-scale. It appears however that there was some