SC| Only the leave for salary is payable would be taken into account for determining the pensionable service

Supreme Court: On the question as to exclusion of unauthorised leaves for determination of pensionary benefits, the 3-judge bench of SA Bobde, Sanjay Kishan Kaul and Deepak Gupta, JJ has held that

“the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations.”

The Court said that Rule 21 of the Central Civil Services (Pension) Rules, 1972  is quite clear in its terms, i.e., “all leave during service for which leave salary is payable” would count. The corollary is that if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension. Rule 3(1)(q), while defining “qualifying service” provides for service rendered while on duty “or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.”

The Court, hence, said that it had no hesitation in coming to the conclusion that to avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules.

The Court was hearing the plea of ex-employees of the Delhi Transport Corporation (DTC), who availed of the Voluntary Retirement Scheme (VRS) but were held disentitled to pension on account of exclusion of period when they remained absent without authorisation for which period they were  held not entitled to salary.

On the issue that the respondents were not governed by these Rules, but by the Employees Contributory Provident Fund Scheme, the Court said:

“The Pension Scheme was sought to be introduced only couple of months before the VRS, and that too was not implemented till 1995. Not only that, it was not implemented through the LIC but ultimately by the appellant-Corporation itself, much later in 1995. Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied. There may have been some significance to these aspects if the Pension Rules were already applicable over a period of time and entries had not been made, though, even there, it would not be in supersession of the plain language of the Rule. … The qualifying period for the VRS would have to be governed by that Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules.”

[Delhi Transport Corporation v. Balwan Singh, 2019 SCC OnLine SC 276, decided on 26.02.2019]

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