1. The petitioner was substantively holding the post of Assistant Surgeon in the State Health Department, Kashmir. The petitioner remained unaulhorizedly absent from duty with effect from May 1,1977 to March 29,1982 and, thereafter, from September 18,1982 to May 6,1985. After the petitioner rejoined his duties, the matter was considered by the competent authority and following order was passed: "Government of Jammu and Kashmir Health and Medical Education Depart­ment Sub: Regularization of period of foreign assignment in favour of Dr. Masood

Alamgir, Assistant Surgeon. Government Order No: 938-HME of 1986

Dated: 24.10.1986

"Sanction is hereby ordered to the regularization of period of absence of foreign assignment in favour of Dr. Masood Alamgir, Assistant Surgeon w.e.f. 1.5.1977 to 29.3.1982 and from 18.9.1982 to 6.5.1985 as dies-non. This period will however count towards his service increments and other pen-sionery benefits." By order of the Governor,

Sd/-

Secretary to Government,

Health and Med. Edu.

Department"

2. In terms of the aforementioned Government order, the period for which the petitioner had remained unauthorizedly absent from duty was treated as dies non. It is further provided in the said Government order that this period will count towards his service increments and other pensionery benefits.

3. The petitioner has retired on superannuation on December 31,2003. The case of the petitioner was processed for payment of retiral benefits. The Accounts Officer (Pension) joined an issue in respect of retiral benefits of petitioner and sent a communication to Director, Health Services, Kashmir Division, Srinagar, dated August 9,2005. In the said communication, the Accounts Officer (Pension) referred to Government Instruction No. 4 of Article 163 of J&K CSR and informed the Director that 'dies non' has been inter alia explained to mean that the period overed thereunder does not count for pension. It is for this reason that the matter got lingered on and the petitioner was, accordingly, not paid the retiral benefits which constrained him to approach this Court.

4. On notice issued, reply affidavit has been filed on behalf of respondents 1 and 2.

5. Alongwith the reply affidavit, some documents have also been annexed which include OM No. A/72 (93)-30/Sgr. Dated May 31,1993.

6. Heard leraned counsel for the parties. Considered the matter.

7. Mr. Z. A. Shah, learned senior counsel, while referring to the Government order as also the annexures annexed with the reply affidavit, submitted that the petitioner in law is entitled to receive pension and other retiral benefits, but without any lawful justification the same has been denied to him. Learned senior counsel submitted that even on the basis of the material which has been placed on record by both the parties, one can reach to irresistible conclusion that the petitioner is entitled to receive post retiral benefits, including pensionery benefits. Learned senior counsel submitted that the reliance placed by the respondents on the Gov­ernment order annexed with reply affidavit do provide that period of unau thorized absence from duty when treated as 'diesnon' in terms of relevant instruction appended to Article 163 CSR, would qualify for pension.

"No period of un-authorised leave or absence may be treated as extra-or­dinary leave without allowances when a Government servant has at his credit leave. Where it is the intention of the competent authority not to allow the concerned Government servant any pay allowance for the period of unauthorized absence, the said period maybe treated as "Dies-Non" (not qualifying for any remuneration). The "Dies-Non" in such cases shall not disturb the title of earned leave nor shall it constitute an interruption for service qualifying for pension, leave and increment unless it is intention of the Competent Authority that a Government servant shall be penalized effectively to the extent that all leaves at his credit should forfeit or his increment postponed

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