Judgment ( 1. ) THE writ petition has been preferred by Union of India through secretary, Ministry of Railways and others assailing the order passed by the central Administrative Tribunal, Jabalpur Bench, Jabalpur in OA No. 154/200? the Tribunal has directed to grant benefit of exgratia pension to Kamla Prasad who died during pendency of this petition and is succeeded by the widow. ( 2. ) THE facts in short are that Kamla Prasad was appointed as Diesel Assistant on 28. 9. 1951 and he has resigned from the services of Railways on 17. 11. 1977 he has rendered more than 26 years services. He had opted for pension while in service, he had applied for exgratia pension, there was no response till 15. 3. 2001. he was advised by communication (A/1) dated 15. 3. 2001 that he was not entitled for exgratia pension because he had resigned from the services on 17. 11. 1977 Consequently, original application was preferred before the Tribunal petitioner relied upon the decision in A. P. Shukla vs. UOI and Ors. rendered by central Administrative Tribunal, Jabalpur Bench, Jabalpur in OA No. 623/1991, decided on 13th October, 1995 and decision of Apex Court in M/s J. K. Cotton spg. and Wvg. Mills Company Ltd. , Kanpur vs. State of U. P. and others AIR 1990 sc 1808 . Prayer was made to treat the resignation as voluntary retirement and to release the pension in terms of Section 102 of Railway Pension Rules, 1950. ( 3. ) THE case set up by the respondent is that its a case of resignation. In the case of resignation even ex-gratia pension is not admissible, employee had not opted for pension scheme otherwise he would not have received the benefit of srpf (C) after his retirement. Thus, the claim for exgratia pension has rightly been rejected. ( 4. ) THE Central Administrative Tribunal has held that resignation of the petitioner be treated as voluntary retirement and benefit of exgratia pension has been ordered to be extended. Aggrieved thereby, the instant writ petition has been preferred. ( 5. ) SHRI P. Shankaran, learned counsel appearing for petitioners has submitted that case of A. P. Shukla vs. UOI and Os. (supra) is different. Aggrieved thereby, the instant writ petition has been preferred. ( 5. ) SHRI P. Shankaran, learned counsel appearing for petitioners has submitted that case of A. P. Shukla vs. UOI and Os. (supra) is different. A. P. Shukla had opted for pension scheme while he was in service, in the instant case the record is not available with the petitioners, acceptance of SRPF (C) after retirement indicates that benefit of pension scheme was not opted by the employee otherwise the employee would not have accepted the aforesaid benefit without any objection. There is difference between case of "resignation" and "voluntary retirement", consequently the Tribunal has erred in deciding the application in favour of petitioner and has illegally ordered the benefit of exgratia pension to be released to the petitioner. ( 6. ) SHRI K. S. Chauhan appearing with Shri H. S. Verma, for respondent no. 1 have supported the order passed by Central Administrative Tribunal, Jabalpur Bench, jabalpur. ( 7. ) IT is not in dispute that employee had rendered the services for more than 26 years. It appears that he has submitted resignation instead of opting for voluntary retirement. He would have been entitled for pensionary benefits had he obtained the voluntary retirement. The benefit of SRPF (C) of Rs. 6,976 was paid to him. However, employee has averred that he had opted for pension scheme while he was in service. Since he had submitted the resignation instead of applying for voluntary retirement the receipt of benefit of SRPF (C) would not come in the way in case resignation is treated as voluntary retirement. ( 8. ) THE case of A. P. Shukla vs. UOI and Ors. (supra) decided by Central administrative Tribunal vide Order (P. 5) dated 13th October, 1995 is similar on facts. Shri A. P. Shukla had submitted the resignation on 11. 5. 71, he completed in all 17 years 9 months and 10 days service, the case of A. P. Shukla was that he had opted for pension scheme in the year 1969, but the same was not decided. It was also submitted that record was not available with the employer indicating whether he had exercised option in the pension scheme or not. Relying upon decision of apex Court in M/s J. K. Cotton Spg. and Wyg. It was also submitted that record was not available with the employer indicating whether he had exercised option in the pension scheme or not. Relying upon decision of apex Court in M/s J. K. Cotton Spg. and Wyg. Mills Company Ltd. , Kanpur vs. State of U. P. and others (supra) the Tribunal has held thus :- "6. Whether the resignation amounts to voluntary retirement. The apex Court in the ease of M/s J. K. Cotton Spg. and Wvg. Mills company Ltd. , Kanpur (supra)has held that when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job. Such a situation would be covered by the expression "voluntary retirement" within the meaning of clause (i)of Section 2 (s) of the Industrial Disputes Act, 1947. The case on which reliance was placed, the controversy was "whether it was a "voluntary retirement" or "retrenchment". In any case, the only analogy is that the applicant intends to draw his pension within the meaning of the word "voluntary retirement". The question is whether rule 311 of the Railway Pension Rules prohibits grant of pension after resignation from service. Rule 311 reads as under:-"resignation from service- No pensionary benefit (or compassionate grant (s) and/or allowances) may be granted to a railway servant who resigns from service. Voluntary retirement from service after completion of 30 years qualifying service etc. in terms of para 620 or para 622 does not, however, constitute resignation within the meaning of these rules. " With respect to availability of record, the Tribunal has considered in a. P. Shukla vs. UOI and Ors. (supra) thus :- "12. Having considered the arguments of both the sides, it is found that the applicant even though he resigned in 1971, had earlier made an application for change of his option and the same was not allowed to him. The respondents have submitted that since the case of the applicant is very old, record of the case has been destroyed, no definite statement can be made whether any such option was exercised. 17. The applicants option for pension having not been decided is entitled to receive pension by depositing the provident fund received by him within a month from today and the orders shall be passed by the Railways within three months from the date of receipt of the amount. 17. The applicants option for pension having not been decided is entitled to receive pension by depositing the provident fund received by him within a month from today and the orders shall be passed by the Railways within three months from the date of receipt of the amount. " The decision in A. P. Shukla vs. UOI and Ors. (supra) was affirmed by the apex Court is admitted at Bar. Case of employee is similar to that of A. P. Shukla. Thus, we find the order passed by the tribunal to be in accordance with law. The Apex Court in M/s J. K. Cotton Spg. and Wvg. Mills Company Ltd. , kanpur vs. State of U. P. and others (supra) has laid down that when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job. Such a situation would be covered by the expression "voluntary retirement" within the meaning of clause (i) of Section 2 (s) of U. P. Industrial Disputes Act, 1947. Thus, it could not be said to be a case of "retrenchment" ,it was a case of "voluntary retirement" within the meaning of the first exception to S. 2 (s ). ( 9. ) GRANT of exgratia payment to surviving SRPF (C) retirees of the period 1. 4. 57 to 31. 12. 85 has been dealt with by Railway Board Establishment Circular No. 19/ 98 dated 27. 1. 98. It provided that based on the recommendations of the Vth central Pay Commission, the President is pleased to grant SRPF (C) beneficiaries who retired between the period 1st April, 1957 to 31st December, 1985 at the rate of Rs. 600 per month with effect from 1st November, 1997, subject to the condition that such persons should have rendered at least 20 years of continuous service prior to their superannuation for becoming eligible to the exgratia payment. They will also be entitled to Dearness Relief at the rate of 5% w. e. f. 1. 11. 97. The benefit will also be admissible in respect of SRPF (C) beneficiaries who were alive on 1. 11. 97 and died subsequent to that date for the period from 1. 11. 97 to the date of death. They will also be entitled to Dearness Relief at the rate of 5% w. e. f. 1. 11. 97. The benefit will also be admissible in respect of SRPF (C) beneficiaries who were alive on 1. 11. 97 and died subsequent to that date for the period from 1. 11. 97 to the date of death. As we have held that Tribunal is right in treating the resignation as voluntary retirement, employee Kamla Prasad (since deceased) was entitled for the benefit of exgratia pension as envisaged under the aforesaid Railway Board Establishment circular No. 19/98. Relevant portion of the circular is quoted below :- " R. B. E. No. 19/98 subject-Grant of ex-gratia payment to surviving SRPF (C) retirees of the period 1. 4. 57 to 31. 12. 85 based on the recommendations of the Vth Central Pay commission, the President is pleased to grant SRPF (C) beneficiaries who retired between the period 1st April, 1957 to 31st December, 1985 at the rate of Rs. 600 per month with effect from 1st november, 1997, subject to the condition that such persons should have rendered at least 20 years of continuous service prior to their superannuation for becoming eligible to the exgratia. payment. They will also be entitled to Dearness Relief at the rate of 5% w. e. f. 1. 11. 97. 2. The ex-gratia payment is not admissible to (a) those who were dismissed/removed from service and (b) those who resigned from service. 3. Arrears of ex-gratia payment will be payable w. e. f 1. 11. 97. Lifetime arrears of ex-gratia payment will also be admissible in respect of SRPF (C) beneficiaries who were alive on 1. 11. 97 and died subsequent to that date for the period from 1. 11. 97 to the date of death. ( 10. ) THE Apex Court in R. Subramaniam vs. Chief Personnel Officer, Central railways Ministry of Railways (1996) 10 SCC 72 has opined that R. Subramaniam having retired during the period specified by the Central Administrative Tribunal, opting for the Pension Scheme at later stage was held entitled for pension scheme subject to refund of the amount received by him under the Provident Fund Scheme. In the instant case, benefit of SRPF (C) is not to be refunded as per Railway board Circular and recipients of such benefit are also entitled for exgratia pension as we have treated the "resignation" as "voluntary retirement". It is not necessary to refund the benefit. ( 11. ) IN the present case petitioners ought to have extended the benefit of decision in A. P. Shuklas case to the employee. Decision of A. P. Shukla vs. UOI and ors. (supra) having been affirmed by the Supreme Court, in all fairness, the benefit of exgratia pension should have been suo motu extended by the petitioners as every such employee need not to be dragged to the Court. ( 12. ) WE find the order passed by the Central Administrative Tribunal, Jabalpur bench, Jabalpur deserves to be upheld. The decision be implemented within a period of two months. The respondent would be entitled for interest at the rate of 7% per annum on the arrears of ex gratia pension which may be found to be payable. ( 13. ) RESULTANTLY, the writ petition being devoid of merits is hereby dismissed however, we leave the parties to bear their own costs as incurred of the petition c. c. as per rules. Petition dismissed.