JUDGMENT D.G.R. Patnaik, J. 1. Challenge in this writ petition is against the order dated 11.2.2005 passed by the Central Administrative Tribunal (CAT), Patna Bench, in OA No. 43 of 2004 whereby allowing the respondents prayer, the petitioner was directed to pass order for grant of pro rata pensionary benefits to the respondent/applicant and family pension when it becomes due to his family, along with interest within a period of four months from the date of the order. 2. The respondent had joined service as an employee under the Coal Mines Labour Welfare Organization (CMLWO) under the control of the Government of India, Ministry of Coal on 27.8.1964. After rendering service for more than thirteen years, he tendered his letter of resignation on 28.2.1977 which was accepted by the management on the same day and on the next day, he joined the Central Coalfields Limited (CCL) at Ranchi. Subsequently, he filed an application claiming payment of pro rata pensionary benefits along with family pension, but the same was denied. On application filed by him before the Tribunal, Patna Bench, vide OA No. 114 of 2003, direction was issued to the respondent petitioner to treat the respondents application as his representation and dispose of the same in accordance with law within stipulated period. The matter was re-considered but the respondents claim for pensionary benefit was again rejected by the petitioner and the order of rejection was communicated to him under Order No. 2457 dated 12.9.2003 (Annexure-3). 3. The respondent filed a fresh application before the Tribunal against the impugned order of rejection of his claim for pro rata pensionary benefits. This application registered as OA No. 43 of 2004, was allowed by the Tribunal by the impugned order dated 11.2.2005 against which the petitioner has filed the instant writ petition. 4. The main ground on which the impugned order of the Tribunal has been assailed is that the respondents claim for pensionary benefits was validly rejected under the provisions of Rule 26 of the CCS Pension Rules, 1972 and the Tribunal has wrongly ignored the same. Elaborating the grounds, Dr. 4. The main ground on which the impugned order of the Tribunal has been assailed is that the respondents claim for pensionary benefits was validly rejected under the provisions of Rule 26 of the CCS Pension Rules, 1972 and the Tribunal has wrongly ignored the same. Elaborating the grounds, Dr. J.P. Gupta, learned Counsel for the petitioner would explain that the petitioner had willingly separated himself from the services of the CMLWO by tendering resignation on 28.2.1977 which was accepted and after his separation, the respondent joined service under the Central Coalfields Limited, which is not a qualifying service under the CCS Pension Rules, 1972. Learned counsel would further explain that under Rules 13 and 14 of the CCS Pension Rules, 1972, a qualifying service has been defined as service under the Government and for which payment is made by the Government from the Consolidated Fund of the Government of India or Local Board administered by that Government. Referring to Rule 26 (2) of the CCS Pension Rules, 1972, learned Counsel argues that the Central Coalfields Limited where the respondent took up service after his resignation, is a public undertaking and payment to employees under the CCL is not made from any Consolidated Fund or from the Local Board of the Government. The respondents service under the CCL being not a qualifying service, the respondent is not entitled to any pro rata pensionary benefits under the aforesaid Rules and his past service would stand forfeited. 5. Per Contra, Mrs. M.M. Pal, learned Counsel for the respondent would raise the following grounds: (i) That in the light of the respondents claim and in the facts and circumstances of the case. Rule 26(2) of the aforesaid Pension Rules has no application at all. 5. Per Contra, Mrs. M.M. Pal, learned Counsel for the respondent would raise the following grounds: (i) That in the light of the respondents claim and in the facts and circumstances of the case. Rule 26(2) of the aforesaid Pension Rules has no application at all. (ii) That facts of the case in its correct perspective is that in order to avail better prospects of service, the respondent had submitted his letter of resignation to the management of the CMLWO expressly intimating therein that he has been selected for the post of Dresser under the Central Coalfields Limited and therefore he had tendered resignation with a prayer to accept the same so as to enable him to join his new assignment and this fact would be evident from the letter of resignation itself which is in possession of the petitioner and which has been withheld by the petitioner despite orders of this Court on the plea that it is not available on their record. (iii) That the acceptance of the letter of resignation was unconditional and without any rider and it was never suggested, even remotely, that the resignation would entail forfeiture of past service and pensionary benefits and this fact was pleaded by the respondent before the Tribunal also. (iv) That the respondents claim for pro rata pension is based on the ground that he had served continuously under the CMLWO for 13 years which is more than the qualifying period of pension and he cannot be deprived of his right. (v) That in the year 1985, CMLWO merged with the Central Coalfields Limited following which the employees of CMLWO were absorbed under the Central Coalfields Limited and all such employees have been provided pro rata pension for which they were working under the CMLWO and as such, the respondent cannot be arbitrarily discriminated. 6. From the rival contentions, the point of controversy is insisted upon by the petitioner is that since the respondent had tendered his resignation voluntarily and had joined a non-pensionary service, his past service under the petitioner would be deemed to be forfeited under the provisions of Section 26 of the CCS (Pension) Rules which is quoted below: (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by an appointing authority entails forfeiture of past service. (2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. 7. In the instant case, the specific stand of the respondent is that he had opted for resignation from the service of the petitioner by seeking permission to Join his new assignment under the CCL and this was specifically mentioned by him in his letter of resignation, which was accepted by the petitioner without suggesting that his resignation would entail forfeiture of his past service. The petitioner has, though not specifically accepted the stand of the respondent, but the petitioners failure to produce the respondents letter of resignation would certainly lead to an adverse presumption against the petitioner on this issue and would support the respondents claim that he had obtained prior permission from the petitioner Management to Join his appointment under the CCL. 8. However, the question still would be as to whether under the provisions of Section 26 of the CCS Pension Rules, the petitioner can refuse to give pensionary benefits to the respondent for the period which he had served under the petitioner. Admittedly, the respondent had served under the petitioner for thirteen years and had thereby qualified for pensionary benefits even while serving under the petitioner. 9. Learned counsel for the petitioner would emphasize that since rules relating to the grant of pension have been framed and since Section 26(2) of the pension rules declares that resignation tendered by an employee shall entail forfeiture of his past service on the respondent joining a non-pensionary service, there can be no relaxation of the rules. In support of his claim, learned Counsel would rely upon the decision of the Supreme Court in the case of Tirumala Tlrupatl Devasthanama v. K. Jotheeswara Filial, All India Services Law Journal 2008 (1) page 22. This Judgment cannot be of any help to the petitioner. 10. In the Judgment referred to adove, the matter related to the service rules governing the employees under the Tirumala Tlrupati Devasthanams. Rule 11 of the Service Rules stipulated that no person who had completed the age of 28 years on the date of appointment is eligible for appointment by way of direct recruitment. The High Court had directed the Management to grant exemption from the eligibility criteria in favour of the employees. Rule 11 of the Service Rules stipulated that no person who had completed the age of 28 years on the date of appointment is eligible for appointment by way of direct recruitment. The High Court had directed the Management to grant exemption from the eligibility criteria in favour of the employees. It is in this context that the Supreme Court had held that since the rules had no provision for relaxation of the eligibility criteria, the High Court cannot give any mandamus against the rules for relaxation. 11. In the instant case, the respondent has not claimed relaxation of the existing rules, On the contrary, the respondents specific case is that since he had earned the qualification for payment of pension after having served for more than 13 years under the petitioner, his right cannot be deprived by reference to Rule 26 of the Pension Rules. 12. It is by now well settled that the pensionary right is a right to which the employee becomes entitled for the past service which he had rendered and if a person has qualified the minimum period to receive pension, he is entitled to receive whatever pension is payable for the period during which he was in service and this matter could not be mixed up as a continuous service which may be added should a person be joining another service. It is also by now well settled that resignation is to be treated as voluntary retirement to make the incumbent entitled for grant of pensionary benefits. 13. This matter came up for consideration before the Supreme Court in the case of A.P. Srivastava v. Union of India . The petitioner therein had worked as a temporary Government servant. After he had completed more than 20 years of qualifying service, he was compulsorily retired prematurely by his employer following departmental proceedings against him. The Court while holding that if a temporary Government servant who has rendered 20 years of service is entitled to pension if he voluntarily retires, there is no justification for denying the right to him when he is retired by his employer in public interest has made the following observations: It has been held by this Court time and again that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long service and is often described as a deferred portion of payment for past services. It is in fact in the nature of a social security plan provided for a superannuated Government servant. 14. In the instant case, the respondent had rendered the qualifying service for pension and thereby he had earned his right to claim and receive pension from his Ex-employer for the period of service rendered by him prior to his resignation. 15. The Tribunal has elaborately dealt with the relevant issues involved in this case and has rightly upheld the claim of the respondent directing the petitioner to pay the pro rata pension to the respondent and family pension when it becomes due to his family, along with interest. 16. For the foregoing reasons, we find no infirmity in the impugned order of the Tribunal. There being no merit in this writ petition it is dismissed accordingly, with costs.