GEORGE Vs. LAW SECRETARY

JUDGEMENT

(1.) Whether a non-permanent officer in regular service, who has not completed probation in the entry grade, availing leave without allowance is entitled to count his service prior to the leave for the purpose of pension is the question to be considered in this appeal.

(2.) Leave is not a matter of right. But once leave is granted, the incumbent shall be bound by the conditions attached to the leave. Appendix XII-A prescribes the rules for the grant of leave without allowances for taking up employment abroad or within India. Rule 88 Part I KSR deals with leave without allowances. Sub-rule (ii) of Rule 88 provides that "except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion". However Exception 2 provides that the limitation in Sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC. Rule 110B deals with leave for taking up employment abroad or within India. The Rule provides that "rules for grant of leave without allowances for taking up employment abroad or within India are given in Appendix XIIA." Appendix XIIA of Part I opens with the following introduction:

(3.) As far as non-permanent Officers in regular service, who have not completed probation in the entry grade, are concerned, they are also liable to be granted leave without allowance subject to the condition that on the expiry of the leave period they will have to start afresh and complete their probation on return from the leave. That part of Rule 5 of Appendix XIIA has been clarified and explained with the expression "in other words", providing that such non-permanent officers, who have not completed their probation in the entry grade and who avail leave without allowances, will have to forgo the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. There is also a further clarification that what is protected in such cases is only their right to rejoin Government service in the same entry grade as if they were new entrants. It is the stand of the State that the expression forfeiture of service benefits would take in the forfeiture of the service as such. In other words, the service rendered by a non-permanent officer in regular service, who has not completed the probation and who avails leave without allowance, will not be entitled to count the service rendered prior to the leave even for pension.