Judgment:
B.H. Marlapalle, J.
1. The order dated 10-11-1994/26-12-1994 passed by the Agriculture Development Officer, Zilla Parishad, Beed and the letter dated 23rd December, 1994, addressed by the Chief Executive Officer, Zilla Parishad, Beed, to the Accountant General, Maharashtra State, Nagpur, have been assailed in this petition filed under Article 226 of the Constitution.
2. The petitioner was initially appointed under the Agriculture School at Ambajogai as an employee of the Zilla Parishad, Beed, and he worked on the said establishment from 22-8-1973 to 28-1-1975. He was deputed to the State Bank of Hyderabad branch at Beed for the period from 5-1-1974 to 10-1-1975. The Agriculture School at Ambajogai was detached from the Zilla Parishad and came to be attached to the Marathwada Agriculture University at Parbhani and, therefore, the petitioner was allotted to the Zilla Parishad service.
3. From 29-1-1975 to 3-12-1979 he proceeded on extraordinary leave and by order 1-12-1979, he came to be allotted to the Panchayat Samiti at Ashti where he resumed his duty on 4-12-1979. On 21-5-1982, the Agriculture Officer, Zilla Parishad, Beed, passed an order and regularised the extraordinary leave for the period with effect from 29-1-1975 to 3-12-1979 and his pay fixation was accordingly done. He retired on reaching the age of superannuation from the employment of the Zilla Parishad on 31-12-1993. He was sanctioned provisional pension by the Chief Executive Officer by order dated 4-1-1994 for the period from 1-1-1994 to 30-6-1994. He received an amount of Rs. 40,837/- and his provisional pension came to be fixed at Rs. 1368/- per month. His pension papers were also forwarded to the Accountant General, Maharashtra State-II, Nagpur, by the Zilla Parishad on 14-1-1994. By communication dated 19-4-1994, the Senior Accounts Officer from the Accountant General's office addressed a letter to the Chief Executive Officer, Zilla Parishad, Beed, pointing out that the period of extraordinary leave from 29-1-1975 to 3-12-1979 did not count for earning the increments and, therefore, it was not known as how the periodical increments were released for the said period. It was further informed that if the period was to be treated as extraordinary leave other than the Medical ground, then the grant of pay and allowances was required to be re-worked for the period from 29-1-1975 to 31-12-1993 and statement of excess payment was required to be furnished along with the pension case papers.
4. Consequently, the Agriculture Development Officer, Zilla Parishad, Beed, passed an order on 10-11-1994/26-12-1994, refixing the salary of the petitioner from 6-8-1970 to 1-5-1993 and the Chief Executive Officer, Zilla Parishad, addressed a letter to the Accountant General on 23-12-1994 informing that the petitioner was on extraordinary leave without pay from 29-1-1975 to 3-12-1979 and the said period was not required to be considered for increments. He further directed recovery of Rs. 56,348/- from the amount payable to the petitioner.
5. Shri Kendre, the learned Counsel for the petitioner, submitted that the impugned orders are without any authority of law and no such power has been vested with the authorities concerned to pass such orders either under the Maharashtra Civil Services (Pay) Rules, 1981 or the Maharashtra Civil Services (Pension) Rules, 1982 (for short, 'Pay Rules' and 'Pension Rules', respectively.) It was urged before us that the order passed on 21-5-1982 could not have been reviewed after 12 years and specially when such an order was passed by exercising the powers under the second proviso to Clause (b) of Rule 39(2) of the Pay Rules. Shri Kendre also referred to the scheme of Rule 120 of the Pension Rules and submitted that the preparation of pension papers in Form No. 6 was required to be done two years before the date on which the petitioner was toretire on superannuation and this was so done in the petitioner's case which resulted into an order for provisional pension. At no point of time, the Zilla Parishad authorities had ever doubted the legality of the order dated 21-5-1982 and on the query raised by the Accountant General, the said order has been set aside by the Agriculture Development Officer and this action is void ab initio.
6. Shri Mundhe, learned Counsel for the respondents No. 3 and 4 submitted that the petitioner had neither joined any Institution for Higher Education/Research nor there were any extraordinary circumstances made out by the petitioner to remain on extraordinary leave for the period from 29-1-1975 to 3-12-1979 and, therefore, the Agriculture Development Officer was justified in correcting the mistake that had occurred in the fixation of the petitioner's pay. He also submitted that the petitioner had given consent for such a refixation as he was also aware that there was mistake originally committed and he could not have earned annual increments for the period of extraordinary leave.
7. Rule 39 of the Pay Rules prescribes conditions under which service counts for increments in a time-scale. Clause (b) of Sub-rule (2) of Rule 39 states that subject to the restrictions mentioned therein, the following periods shall count for increment in the time-scale applicable to a post in which a Government servant was officiating-
(i) all leave, except extraordinary leave;
(ii) extraordinary leave on medical grounds;
(iii) deputation within or outside India, or temporary transfer to anotherdepartment;
(iv) period spent on training.
The 2nd proviso to Sub-clause (b) reads thus :
'Provided that Government may, in any case in which they are satisfied that the extraordinary leave was taken for any cause beyond the Government servant's control or for prosecuting higher scientific and/or technical studies, direct that the extraordinary leave shall be counted for increments under Clause (a) or (b).'
8. Thus the extraordinary leave, per se, has been excluded for consideration of annual increments though other type of leave has been included under Sub-clause (b) of Rule 39(2). However, the proviso thereunder, has made an exception and added that the extraordinary leave period could also be taken into consideration for the purpose of granting annual increments provided the Government is satisfied that the extraordinary leave was taken for any cause beyond the Government servant's control or it was taken for prosecuting higher scientific and/or technical studies.
9. Our attention has been invited to an order dated 21-5-1982 passed by the Agriculture Development Officer by referring to the order dated 1-12-1970 and 6-5-1978 passed by the Chief Executive Officer, Zilla Parishad, Beed, as well as the letter dated 20-5-1982 received from the Block Development Officer, Panchayat Samiti, Ashti. In para 2 of the said order, the Agricultural Development Officer stated thus :
'Now, the period of absence has been decided and ultimately, the incumbent shall held eligible for increments in terms of Rule 39 of theMaharashtra Civil Services (Pay) Rules, 1981 read with Rule 60 of the Bombay Civil Services Rules. I, the Agriculture Development Officer, Zilla Parishad Beed, being satisfied that the extraordinary leave was taken for the cause beyond incumbent's control, pleased to fix and regulate the pay of Shri K.M. Lad, A.D.O. Panchayat Samiti in the pay scale of Rs. 200-400 and subsequent revised pay scale from time to time........'
10. In the return filed by the Zilla Parishad, the authority of the Agriculture Development Officer in passing the order dated 21-5-1982 has not been challenged and in fact it could not have been done so on account of the fact that the subsequent impugned order refixing the pay of the petitioner has also been passed by the same authority. In the order dated 21-5-1982, the Agriculture Development Officer recorded his due satisfaction that the extraordinary leave was taken for the cause beyond the petitioner's control and thus he passed an order under the second proviso to Clause (b) of Rule 39(2) of the Pay Rules. This order operated till the petitioner retired from service on 31-12-1993 and there was not a whisper on its legality or any doubt was raised that the annual increments were released to the petitioner illegally for the period he was on extraordinary leave. Even in response to the communication dated 19-4-1994 received from the Accountant General's office, the Agriculture Development Officer proceeded to refix the petitioner's pay without having any regards to the earlier order passed by the same authority on 21-5-1982. Once the powers were exercised under the second proviso to Clause (b) of Rule 39(2) of the Pay Rules and due satisfaction was recorded about the extraordinary circumstances under which the petitioner was on extraordinary leave, there was no question of reviewing the said order after about 12 years, only because the Accountant General had raised certain queries. The Zilla Parishad ought to have invited attention of the Accountant General's office to the order passed on 21-5-1982 and communicated to it that the powers given under the Pay Rules were duly exercised by the competent authority and, therefore, the petitioner was rightly given the benefit of grant of annual increments for the period of extraordinary leave. Instead, the respondents No. 3 and 4 proceeded to pass the impugned orders in a mechanical way and certainly without fulfilling the requirements of the principles of natural justice. The contention of the Zilla Parishad that the petitioner himself has accepted the refixation and, therefore, the impugned order was passed, cannot be accepted by us. When the petitioner had retired from service and his pension papers were duly processed under Rule 120 of the Pension Rules, the impugned order could not be sustained and more so because the competent authority had already exercised the powers under the second proviso to Clause (b) of Rule 39(2) of the Pay Rules and it was not as if the petitioner was granted annual increments in May 1982 in a casual or mechanical manner or without any justifiable reasons. Having exercised the powers under the Pay Rules, the Agriculture Development Officer could not turn back and justify the refixation of the petitioner's pay on the ground that the period of extraordinary leave, per se, cannot be treated as extraordinary circumstance. The Chief Executive Officer while addressing a letter to the respondent No. 2 on 23-12-1994 failed to apply his mind to the order dated 21-5-1982 which had becomefinal and which was in force for almost 12 years. The said communication does not even refer to the said order.
11. In the premises, the petition is allowed. The impugned orders passed by the respondents No. 3 and 4 are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs.