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(i) it is settled legal position that pensionary benefits extend to all those persons who render qualifying period of service under the pension rules and as such, purported deemed resignation under the leave rules cannot be penal in nature and entail forfeiture of past services to which applicant is otherwise eligible and once an officer has to his credit the minimum period of qualifying service for pension under the applicable rules, he earns a right to get pension and such right cannot be taken away only if his service is not satisfactory consequent to any disciplinary proceedings or where he is dismissed or removed from service;
(ii) the said leave rules do not contemplate automatic deprivation of retirement/terminal benefits and forfeiture of qualifying period of service for pension as the said deemed resignation - Rule 7 (2) AIS (Leave) Rules - is not a provision for imposition of penalty for a misconduct and is only a deeming provision. Without prejudice, as a case of overstay and not proceeding on foreign assignment without permission or abandonment of employment and with no disciplinary proceedings, applicant ought to have been given the option of voluntary retirement as he had rendered requisite period of qualifying service and earned pension and the sole option of resignation without clarifying the status of pensionary benefits and deemed resignation after completion of more than 20 years in service is arbitrary and unfair;

3.9 To the contention of the applicant that Government of India had no objection on his continuance during overstay, it is stated by the respondent that the respondent vide letter dated 22.8.1997 had not only rejected his request for continuance on foreign assignment but also specifically directed him to return to the cadre latest by 15.9.1997 with warning of consequences. Thereafter respondent also intimated vide letter dated 24.12.1997 to the applicant that his continuance on foreign assignment beyond 30.6.1995 was without sanction and unauthorized and informed him of the decision to initiate disciplinary proceedings as per rules. Since the applicant had been unauthorisedly absence from duty for five years other than on foreign service on 1.7.2000 and had not returned to duty despite specific directions to report back, he was liable for deemed to have resigned from service under the provisions of Rule 7 (2) of the Rules ibid as existing at that time. He did not bother at all about directions of the Government and continued on foreign assignment unauthorisedly for personal gains as he was taking hefty pay and perks and impliedly challenged the authority of the Government. Thus despite having been given a number of opportunities to join back, when he did not join duty, with the approval the Hon‟ble Prime Minister, he was deemed to have resigned from service under Rule 7(2) of the Rules ibid for unauthorized absence of more than five years, vide notification dated 18.5.2001.

7.2 Counsel also contended that the applicant was granted permission to take up foreign assignment with the United Nations Environment Programme, Nairobi initially for a period of 11 months from 3.12.1993 to 2.11.1994, which was extended up to 30.6.1995. No further extension in foreign assignment was granted thereafter. Hence, after completion of foreign assignment on 30.6.1995, the applicant was required to report for duty in his parent cadre, but he did not report for duty. Thus, the applicant remained unauthorisedly absent from duty w.e.f 1.7.1995. Thereafter, the respondent vide letter dated 22.8.1997 had informed him that his request for continuance on foreign assignment is not agreed to and directed him to return to the cadre latest by 15.9.1997 otherwise disciplinary proceedings will be initiated as per relevant rules. Once again, the respondent vide letter dated 24.12.1997 intimated the applicant that his continuance on foreign assignment beyond 30.6.1995 was without sanction and unauthorized and informed him of the decision to initiate disciplinary action as per rules. Since the applicant had been unauthorisedly absence from duty for five years other than on foreign service on 1.7.2000 and had not returned to duty despite specific directions to report back, he was liable for deemed to have resigned from service under the provisions of Rule 7 (2) of the Rules ibid as existing at that time. Accordingly, proceedings under said Rule were initiated by the respondent and show cause notice dated 25.1.2001 (Annexure-III) was issued to the applicant for remaining absent from duty exceeding five years. Subsequently, applicant submitted his reply dated 25.1.2001 which was not found satisfactory and he had admitted that he was unauthorisedly absent since 1.7.1995. Accordingly, with the approval of Hon‟ble Prime Minister, he was deemed to have resigned from service under Rule 7 (2) of the Rules ibid vide notification dated 18.5.2001.