The classification of 'dies-non' does not constitute a penalty and should not adversely affect pension rights, as upheld by the Tribunal.

ORDER :

1. This civil writ petition has been preferred claiming the following reliefs:-

“It is, therefore, most humbly and respectfully prayed that this writ petition in the nature of Certiorari may kindly be allowed. By an appropriate writ order or direction:-

(i) The impugned order dated 23.08.2019 (Annex-1) passed by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur may kindly be declared illegal and the same may kindly be quashed and set aside.

(ii) The original Application filed by the applicant/respondent may kindly be dismissed.

(iii) Any other relief which this Hon’ble Court deems just and proper in favour of the petitioners, may kindly be granted.

(iv) The cost of the writ petition be allowed in favour of the petitioners.”

2. The present writ petition has been filed against the order dated 23.08.2019 passed by learned Central Administrative Tribunal, Jodhpur Bench in O.A. No.290/00028/2018, whereby the petitioners have been directed to consider the case of the respondent-applicant for grant of pension by counting full service rendered in Group ‘D’ cadre.

3. Mr. Uttam Singh, learned counsel appearing for the petitioners submitted that respondent-applicant was appointed as GDSBPM Kujti Post Office BO on 13.03.1976 under Lunkaransar SO and Bikaner HO. After rendering 27 years of service, the respondent-applicant was selected in Group ‘D’ and joined on 21.04.2003 at Lunkaransar Post Office vide appointment order dated 03.04.2003.

3.1. Learned counsel for the petitioners further submitted that the respondent-applicant remained absent from the duty during the years 2008, 2009, 2010, 2011, 2012 & 2013 and lastly submitted a few medical certificates, and claimed sanction of medical leave on the basis of those certificate, However, the certificates did not contain the proper information required about the medical condition of the respondent-applicant. Thus, the said medical certificates were refused to be accepted and consequently, period of 554 days was ordered to be treated as dies-non by the competent authority. The respondent-applicant superannuated on31.07.2013 on attaining the age of 60 years.

3.2. Learned counsel for the petitioners also submitted that after deducting the period of dies non, the respondent-applicant rendered 8 years, 9 months & 2 days of service, thus rendering him ineligible for pensionary benefits under pension rules. However, on retirement, the service and retirement gratuities were paid to the respondent-applicant.

3.3. Learned counsel also submitted that repeated representations were filed by the respondent-applicant to get the leave sanctioned on one or the other head. The infirmity in the medical certificates for the prolonged absence however, could not be condoned, but taking a lenient view, the absence period was ordered to be dies-non. Learned counsel submitted that no appeal/representation against the order of dies-non, passed in the year 2011, was preferred before the competent authority in time despite having multiple opportunity to do so, thus the same cannot be challenged at this belated stage. Learned counsel further submitted that the leave sanctioning authority is empowered under Rule 62 of the Postal Manual III to pass such orders. The Rule 62 of the Postal Manual III reads as under:-

“62. Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them is subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non i.e. they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the competent authorities might take against the persons resorting to such practices.”

3.4. Learned counsel for the petitioners also submitted that the department may have the sympat