Railway Service Pension Rules | Leave For Which Salary Is Not Payable Not Counted Towards 'Qualifying Service': Andhra Pradesh High Court

The Andhra Pradesh High Court has held that under Railway Service Pension Rules 1993, period of 'Leave without Pay' (LWP) cannot be counted as qualifying service for pensionary benefits.

"The period of absence, treated as leave without pay, may not be covered under Rule 14(x), (of Railway Service Pension Rules, 1993) but the question is if such a period would be covered under Rule 36. We have already held above that, the leave for which salary is not payable, shall not be counted as qualifying service, in view of Rule 36."

The Division Bench of Justice Ravi Nath Tilhari and Justice B.V.L.N Chakravarthi was adjudicating upon a writ petition filed by the Centre challenging an order of the Central Administrative Tribunal (CAT) directing it to consider the leave period from 1993-1994 and 1997-2002 of the private respondent (pension seeker) as 'qualifying service' for pension benefits and further release all pension benefits including arrears.

Respondent argued before the CAT that the Railways Authorities had illegally withheld his pension on the ground that the aforesaid leave period could not be considered as service rendered. He submitted that he had served a total of 22 years, and if his leave period was not considered, he would not meet that minimum service rendered to claim pension benefits.

The CAT had referred to Rule 14(x) of the Pension Rules and held that since the Railway Department did not raise any disciplinary action against the respondent for availing a leave of 5 years, and since the leave was regularised as 'Leave Without Pay', it ought to be considered. CAT further held that Rule 14(x) only bars period of absence in continuation of authorised leave, i.e., 'overstay', from being counted as qualifying period.

The High Court held that although Rule 14 (x) states that authorised leaves shall be counted as qualifying service, but a plain reading of Rules 36 makes its evident that leaves without pay, even if authorised, cannot be considered as qualifying service. It held CAT had erred in relying solely on Rule 14(x) to hold that the leave granted was an authorised leave should have been considered as qualifying service for pension benefits.

"We have already held above that, the leave for which salary is not payable, shall not be counted as qualifying service, in view of Rule 36. So, even if rule 14(x) may not attract as is the submission of the learned counsel for the 1st respondent still period of leave, for which leave salary is not payable cannot be counted in qualifying service."

"In our considered view, Rule 36 of the Rules, 1993 is attracted. The CAT did not consider Rule 36 and merely considering Rule 14 (x) of the Rules, 1993, directed to include the absence/leave period, without considering that the absence period though treated as leave was leave without pay; for which leave salary was not payable and consequently it would not be counted for qualifying service," Court added.

Case Title: UOI vs. S.P Bhattacharya & Ors.

Counsel for petitioner: M Srinivas (Standing counsel for central Government)

Counsel for Respondent: M. Naidu

Date: 18.08.2023

Case no.: WP 9321 of 2011.

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