JUDGMENT : D.P. Choudhury, J. Challenge has been made to the inaction of the opposite parties for not releasing the pension and other retiral benefits to the petitioner under the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981 (hereinafter called ‘Rules 1981’) and the Orissa Civil Services (Pension) Rules, 1992 (hereinafter called ‘Rules 1992’). 2. The factual matrix leading to the case of the petitioner is that the petitioner started his service in the erstwhile District Board, Puri as an Assistant Teacher on 1.1.1957 under the Zilla Parishad, Puri. He continued as such till 31.12.1960 but from 1.1.1961 his service was placed in Non-Government Primary School. Thereafter he was frequently transferred from one Education District to another Education District against the Rule. So, protesting his frequent transfer, he tendered resignation on 27.10.1983. But the opposite parties again reinstated him on compassionate ground on 26.9.1987 and he superannuated from service on 30.11.1993. 3. Be it stated that the petitioner being in Government service with effect from 5.9.1989 to 30.11.1993 for not more than 10 years may not be entitled for the pension under the Orissa Civil Service (Pension) Rules 1992 but he is entitled to pension having completed 27 years by 27.10.1983 when he resigned and thus, he is eligible to receive pension under Rules 1981. It is further stated that in order to avail pension under the Pension Rules, 1981 or under the Orissa Aided Educational Institutions (Non-Government Fully Aided Primary School Teachers’) Retirement Benefit Rules, 1986 (hereinafter called ‘the Rules, 1986’) he made representation but that was not being considered. So, he filed O.J.C. No.12590 of 1999 which was disposed of on 20.12.1999 in the following term:- “O.J.C. No.12590 of 1999 2. 20.12.1999 Grievance of the writ petition is although his pension papers were submitted before the Block Development Officer, Astarang in April, 1994, his claim for pension is not being finalized. 2. Considering the said grievance we dispose of the writ petition by directing the opposite parties 3, 4 and 6 to take final decision on the petitioner’s claim for pension in accordance with law within a period of two months from the date of communication of this order and to release pension, the petitioner is entitled to get, within one month thereafter. This order be communicated to the opposite parties 3, 4 and 6 along with copy of the writ petition. This order be communicated to the opposite parties 3, 4 and 6 along with copy of the writ petition. Requisites for such communication along with copy of writ petition be filed by 22.12.1999”. 4. It is also the case of the petitioner that the authorities took their own time to dispose of the representation for complying the order of this Court but the petitioner came to know that there was recommendation for giving benefit but due to wrong notion for condonation of service from 1983 to 1987, the action was delayed. Due to inaction of the authorities, the petitioner had to file another W.P.(C) No.1464 of 2016 before this Court and this Court while disposing of that writ application on 8.2.2016 again directed the opposite party No.2 to consider the grievance of the petitioner and pass appropriate order. It is the case of the petitioner that when he approached opposite party No.2 to consider his grievance, the opposite party No.2 struck down his request vide Annexure-8. So, he was compelled to file this writ application for quashing Annexure-8 and to direct the opposite parties to sanction the pension and pension papers due to petitioner on the basis of admitted regular service, i.e., from 1.1.1957 to 27.10.1983. The petitioner has served in Fully Aided Primary School and District Board. Again he has asked for calculation of the entitlement of the petitioner from 1.12.1993 along with interest of 10% per month which may be recovered from the concerned official or staff responsible for such non-sanction of pension in favour of the petitioner. SUBMISSIONS 5. Learned counsel for the petitioner submitted that according to Rules 1981 the past service of petitioner can be counted from 1957 when he started his service till he resigned from service in 1983. He also submitted that since the petitioner was reappointed with effect from 26.9.1987, by understanding their mistake (opposite party No.4), the entire service period should be counted for the purpose of pension and other retiral benefits. According to him the opposite parties have committed error by not calculating the interruption period towards qualifying service for the purpose of retiral benefits. He submitted that there is clear provision for condoning the break service by the competent authority as per Rule 7 of the Rules 1981. According to him the opposite parties have committed error by not calculating the interruption period towards qualifying service for the purpose of retiral benefits. He submitted that there is clear provision for condoning the break service by the competent authority as per Rule 7 of the Rules 1981. He also submitted that Rule 35 of the Rules 1992, the interruption of service can be condoned by allowing extraordinary leave to the petitioner. So, he seeks direction to count the past service and allow full pension, in the alternative he has asked for allowing pension or retiral benefits by calculating his service period from 1957 to 1983 when he first resigned so that petitioner can avail the pensionary benefit proportionately under the relevant provisions of the Rules 1981 and Rules 1992. 6. No counter is filed by the opposite parties. Learned Standing Counsel for the opposite parties submitted that after the order of this Court passed in O.J.C. No.12590 of 1999, the matter was examined. The total period from the beginning of the service till retirement of the petitioner is as follows:- 1. Services under Panchayat Samiti 1.1.57 to 26.8.83 including Local Board. 2. Breaking service (due to resignation) 27.8.83 to 25.9.87 3. Re-appointed pursuant to Government 26.9.87 to 30.11.93 Order No.20525/EYS dt.24.8.87 (as afresh appointee only) According to him the provision under Rules 1981 and Rules 1992 do not apply to the case of the petitioner for consideration except service on gratuity under the Rules, 1992. He further submitted that after examination of the case of the petitioner it appears that the petitioner was serving under the pensionable establishment. The records of resignation of the petitioner being not available but on compassionate ground Government has reappointed him for which the interregnum period cannot be condoned to consider the same as qualifying service for pensionary benefit. He submitted that the breakage of service being four years, it is not permissible under Rule 7 of the Rules 1981 to condone same for which the past service of the petitioner from 1983 till 1993 could not be treated as continuous service to the service already rendered till 1983. On the other hand, learned Additional Standing Counsel submitted that the petitioner is not entitled to the relief asked for under Rules, 1981. POINT FOR CONSIDERATION: 7. On the other hand, learned Additional Standing Counsel submitted that the petitioner is not entitled to the relief asked for under Rules, 1981. POINT FOR CONSIDERATION: 7. Whether the petitioner is entitled to sanction of the pension and pensionary benefit for the period from 1.1.1957 to 30.11.1993 ? DISCUSSION 8. It is admitted fact that the petitioner has joined as a Teacher of Lower Primary School under the erstwhile Board on 1.1.1957 till 31.12.1960 and then he continued as an Assistant Teacher till 26.8.1983. It is an admitted fact that he resigned from service on 27.10.1983, made re-entry on 26.9.1987 and then superannuated from service on 30.11.1993. It is not in dispute that there was no Departmental Proceeding against him during his service career. It is further admitted fact that vide O.J.C. No.12590 of 1999 order was passed by this Court to consider the case of the petitioner but no final opinion was expressed communicating the petitioner for which the petitioner had to file W.P.(C) No.1464 of 2016 where this Court directed to consider the case of the petitioner with proper perspective. 9. After the second writ petition was disposed of, the petitioner has knocked the door of the Court for the third time for seeking relief. Since the petitioner’s grievance is not disposed of on merit, he is approaching this Court from time to time. It is reiterated that no counter is filed by the opposite parties challenging the averments in the writ petition but the learned counsel for the State purportedly refuted the allegations. On going through the copies of the Service Book of the present petitioner it appears that his service has been verified right from 1.1.1957 till 26.10.1983 and resigned on 27.10.1983 as per the endorsement made in the Service Book. The petitioner only claims in the writ petition that he resigned due to inconsistency in the transfer policy and transferring him frequently from one place to another. In this regard, no document is available in the office of the opposite parties but same is available from the documents filed by the petitioner. The petitioner only claims in the writ petition that he resigned due to inconsistency in the transfer policy and transferring him frequently from one place to another. In this regard, no document is available in the office of the opposite parties but same is available from the documents filed by the petitioner. It is revealed from the Service Book that he is appointed as an Assistant Teacher in UGME School vide order No.4872 dated 25.9.1987 of the D.I. of Schools, Puri II, Nimapara and he joined on 26.9.1987 which is long after his date of resignation and thereafter the same Service Book shows the verification of service continuity and uninterruptedly till his date of retirement, i.e., 30.11.1993. 10. From Annexure-2, it appears that the Government has informed that on compassionate ground the petitioner was taken back as fresh appointee. It is only available from the letters vide Annexures-4, 5, 6, 7 and 8 that he was given fresh entry to service but no record is made available by the petitioner nor any counter is filed who made the petition to reappoint him and what are the consideration for the Government when the proposal was mooted to take back the petitioner as fresh entry to service. In absence of all these materials and particularly there is nothing mentioned in the Service Book and the office order vide Annexure-3 that the petitioner was appointed on compassionate ground. So, it is difficult to come to a conclusion that the petitioner was given fresh entry to service. Even if accepting the case of the opposite parties that the petitioner was given fresh entry to service, then there would not have any entry in the Service Book that he has completed the age of 58 years as on 30.11.1993 and relieved the office from duties on superannuation in the afternoon of 30.11.1993. Now the word ‘superannuation’ clearly indicates that a person retires after reaching the age of 58 years at that time and now it is 60 years for the State Government employees. Be that as it may, in absence of adverse materials and in presence of materials about his superannuation, it would be worthwhile to consider whether if there is break up in service, if so whether the same can be condoned to count the past service for the purpose of pension or pensionary benefits. 11. Be that as it may, in absence of adverse materials and in presence of materials about his superannuation, it would be worthwhile to consider whether if there is break up in service, if so whether the same can be condoned to count the past service for the purpose of pension or pensionary benefits. 11. No doubt Rule 7 of the Rules 1981 speaks hereunder: “7. In case of an employee retiring on or after the first day of April, 1882 any period of break in service caused on account of retrenchment or similar other reasons which is beyond the control of the employee concerned will not be treated as interruption involving forfeiture of past service. In case of break occasioned by resignation, the past service rendered in one or more recognized educational institutions coming within the purview of Rule 3 will be taken into account if the break is not more than three months. In all such cases satisfactory documentary evidence relating to the past service shall be produced by the concerned employee. The documents so produced will be subject to verification on the basis of official records”. From the aforesaid clause, it appears in case of break occasioned by resignation, the past service rendered in one or more recognized educational institutions coming within the purview of Rule 3 shall be taken into account if the break is not more than three months. In the case in hand, since there is breakage of service of four years, the learned counsel for the State asserts that according to this clause condonation of the break of service is out of reach. But Rule 35 of the Rules 1992 as per rival submission states in the following manner: “35. In the case in hand, since there is breakage of service of four years, the learned counsel for the State asserts that according to this clause condonation of the break of service is out of reach. But Rule 35 of the Rules 1992 as per rival submission states in the following manner: “35. Effect of interruption in service – (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases : (a) Authorized leave of absence; (b) Unauthorized absence in continuation of absence; (c) Suspension, where it is followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or retired on attaining the age of compulsory retirement while under suspension; (d) Transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest; (e) Joining time while on transfer from one post to another. 2. Notwithstanding anything containing in Sub-rule (1), the appointing authority may, by order, regularize retrospectively the periods of absence without leave application by sanctioning extraordinary leave”. Under Annexure-4 the Directorate of Elementary Education has instructed the District Inspector of Schools, Nimapara to examine the case of the petitioner keeping in view of the provisions of the Rules 1981 and Rules 1992 for which it must be inferred that the petitioner could be awarded pensionary benefit by applying either of the Rules or both the Rules wherever the case of the petitioner is appropriately dealt. Of course, Rules 1981 is silent about condonation of break of service and said Rule is applicable specifically to the employees of Aided Education Institutions whereas Rules 1992 is applicable to all the State Government employees having provision for condonation of break of service. On the application of the principle “Gener alia specialibus non derogant”, i.e., the general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. On the other hand, the Rules 1992 being general having the provision for condonation of delay, must be followed qua the provisions of Rules 1981 so far as condonation of breakage of service is concerned. 12. On the other hand, the Rules 1992 being general having the provision for condonation of delay, must be followed qua the provisions of Rules 1981 so far as condonation of breakage of service is concerned. 12. In the instant case, applying the above principle the break of service can be condoned under the Rules 1992 by the appropriate authority if the petitioner would be extended with extraordinary leave. The Orissa Leave Rules, 1966 defines the extraordinary Rule and it is only up to 28 months and it is only granted to an employee in special circumstances where no other leave is admissible or other leave is admissible but the employee applies in writing for grant of extraordinary leave. In the instant case, there being breakage of service for the 48 months after the resignation of the petitioner is accepted, these period cannot be condoned even if the Rules 1992 is pressed into service. Now the case of the petitioner has to be confined for the continuous service right from 1.1.1957 till 26.10.1983. Rule 4 (1) of Chapter II of the Rules 1981 enshrines that subject to the conditions in other rules under this Chapter, an employee shall be, eligible for pension or gratuity, as the case may be, on retirement by reason of his attaining the age of superannuation. In the present case, as it appears from the records that the petitioner has retired on superannuation at the age of 58 years as discussed earlier and counsel for opposite parties admit that it is a pensionable service. So, pension is to be computed for the years of service as he has rendered under discussion made hereinabove. Moreover, Rule 8 of the Rules 1981 speaks as follows:- “8. (1) An employee shall be eligible for gratuity if the period of his qualifying service up to the date of his retirement is five years or more but less than ten years. The gratuity shall be at the rate as follows: Completed years of qualifying serviceScale of gratuity (1)(2) Less than 5 yearsNil 5 years4-1/6 month’s emoluments 6 years5 month’s emoluments 7 years5-5/6 month’s emoluments 8 years6-2/3 month’s emoluments 9 years7-1/2 month’s emoluments [(2)(a) An employee shall be eligible for pension if he has completed not less than ten years of qualifying service up to the date of his retirement. The maximum period of qualifying service to be taken into account for the purpose of pension shall not exceed thirty-three years. The maximum pension shall be at the rate of fifty per cent of the last month’s pay drawn by the employee. [(b) The family of a pensioner or the family of an employee who died on or after the 1st September, 1988 shall be entitled to get family pension as admissible to the family of his counterpart in the State Government Service.] Note – For the purpose of calculating the pension and gratuity, only completed years of qualifying service shall be taken into account and fraction of a year shall be ignored. In calculation of the pension under this rule, the formula applicable to State Government employees shall be followed.]” 13. From the aforesaid provision, it is clear that gratuity would be payable if the period of qualifying service up to the date of retirement of the petitioner is five years or more. Since he has got the qualifying service minus break of service, his qualifying service up to the date of his resignation is more than five years and from the date of reappointment till the date of superannuation is also more than five years, i.e., from 26.9.1987 till 30.11.1993, he is, therefore, entitled for gratuity as per Rule 8 (1) of the Rules 1981. 14. As per Sub-Rule (2) of Rule 8 of Rules 1981 the petitioner has completed more than 10 years qualifying service although has not completed the maximum period of qualifying service and accordingly his pension should be made available as he has retired on superannuation at the age of 58 years as per Rule 4 of the Rules, 1981. The break in service should not stand on the way to grant the pension and gratuity as retiral benefit if a person is otherwise entitled to pension and gratuity as per the concerned Rules. So, the petitioner having qualifying service to receive the pension as per the qualifying service from 1.1.1957 to 26.8.1983 and the gratuity for having qualifying service for more than five years in both the spans, he is entitled to the same. Besides, considering the said period of service of petitioner, petitioner is also entitled to other pensionary benefits under the Rules, 1981 and Rules, 1992. Point No.(i) is answered accordingly. CONCLUSION 15. Besides, considering the said period of service of petitioner, petitioner is also entitled to other pensionary benefits under the Rules, 1981 and Rules, 1992. Point No.(i) is answered accordingly. CONCLUSION 15. In the writ petition petitioner has prayed to quash Annexure-8 under which the opposite parties have denied to condone the break period exceeding three months in case of resignation. In fact, it has been discussed above that the break up service cannot be condoned being it is four years even if the O.C.S. (Pension) Rules, 1992 is preferred to the Rules, 1981. Further the petitioner has prayed to calculate the pensionary benefit for the admitted period, i.e., from 1.1.1957 to 27.10.1983 and interest @ 10% accrued thereon. It has been already observed that the petitioner is entitled to pension and gratuity for the qualifying service as discussed herein above. In spite of two round of litigation, the opposite parties have not cleared the pensionary dues even if the break up service is left out to be condoned, it should be remembered that the pension is not a charity or bounty but it is a right of a Government servant. When petitioner as a teacher has rendered his service unblemishly and record shows that there is no Disciplinary Proceeding against him, it is unfortunate on the part of the opposite parties to sit over the matter. Hence, the opposite parties are liable to pay the pension proportionately for the qualifying service from 1.1.1957 to 27.10.1983, gratuity and other pensionary benefits according to the total qualifying service he has rendered as per discussion made above but Annexure-8 is not liable to be quashed. 16. In the result, the writ petition is partly allowed and the opposite parties are directed to calculate the pension, gratuity and other pensionary benefits as per relevant Rules as retiral benefits and make payment of the same to the petitioner within a period of two months, failing which, the opposite parties are liable to pay the same with interest @ 9% from 1.12.1993 till the date of actual payment. Petition Party allowed.