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2022 DIGILAW 160 (HP)

Budhi Singh S/o Shri. Bhag Singh v. State of Himachal Pradesh through the Secretary (Revenue)

2022-04-02

TARLOK SINGH CHAUHAN

body2022
ORDER : The instant petition has been filed for the grant of following relief(s): (I) That the respondents may kindly be directed to grant the benefits of full pension to the applicant from the date of retirement i.e. 30.4.2002 as per the recommendations of sixth pay commission and which has been accepted by the State Govt. also. (ii) That the respondents may kindly be also directed to grant the arrear of pension accrued in favour of applicant from the date of retirement i.e. 30.4.2022 alongwith 9% interest till the realization of whole amount.” 2. The applicant was initially appointed as Patwari in the Forest Department in the year 1969 and remained there upto 8.10.1994. Thereafter, the applicant joined the Revenue Department in the office of respondent No. 2 i.e. Collector-cum-Deputy Commissioner, Bilaspur. Later he was promoted as Kanungo on 8.12.2000 and retired after attaining the age of superannuation on 30.4.2002 after completion of 27 years, 6 months and 22 days of service. 3. Now the claim of the petitioner is that since he has completed more than 28 years of service in two departments, therefore, he is entitled to full pension after completion of 20 years of service, as per recommendations of 6th Pay Commission, which have been accepted and implemented by the state government. 4. The respondents have disputed the claim of the petitioner. In the reply filed by the respondents-State, it is averred that the recommendations of the 6th Pay Commission are applicable only to those employees/retirees, who have retired on or after 1.1.2006. Since the applicant retired on 30.4.2002, therefore the amended rules regarding pension/family pension under the Central Civil Service (Pension) Rules 1972 issued by the Govt. of Himachal Pradesh vide office memorandum No. Fin (Pen) A (3)-1/09-Part-1, dated 14.10.2009 are regulating the pension of Pre-2006 retirees. Therefore, the applicant is not entitled for pension as per recommendations made by the 6th Pay Commission. As per amended pension Rules, a conversion table with regard to fixation of pension/family pension of pensioners/family pensioners received alongwith O.M. dated 14.10.2009, the pension of the applicant was converted from Rs. 2709/- per month to Rs. 6124/- per month as per rule 4.1 and 4.2 of revision of pension rules of Pre- 2006 pensioners/family pensioners under Rule-49 of Central Civil Service (Pension) Rules, 1972 applicable w.e.f. 1.1.2006. 5. The petitioner has disputed the stand taken by the respondents by filing rejoinder. 2709/- per month to Rs. 6124/- per month as per rule 4.1 and 4.2 of revision of pension rules of Pre- 2006 pensioners/family pensioners under Rule-49 of Central Civil Service (Pension) Rules, 1972 applicable w.e.f. 1.1.2006. 5. The petitioner has disputed the stand taken by the respondents by filing rejoinder. 6. I have heard learned counsel for the parties and gone through the records of the case. 7. Rule 26 of the CCS Pension Rules reads as under: “26. Forfeiture of service on resignation: (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the 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. (3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him. (4) The appointing Authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:- (I) That the resignation was tendered by the Government servant for some compelling reasons which did not involve reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation; (ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper; (iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days; (iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.” (5) Request of withdrawal of a resignation shall not be accepted by the Appointing Authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by a Government or in or under a body controlled or financed by the Government. (6) When an order is passed by the Appointing Authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service. (7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government.” 8. Rule-26 of the CCS (Pension) Rules, 1972 relates to the aspect of qualifying service in the event of Government servant resigning from his post. As per the main Rules [Rule 26(I)], resignation from a service or post entails forfeiture of past service. However, exception has been made in the rules, [Rule 26(2)] that a resignation shall not entail forfeiture of past service when it has been rendered to take up with proper permission another appointment under the Government. 9. As per the main Rules [Rule 26(I)], resignation from a service or post entails forfeiture of past service. However, exception has been made in the rules, [Rule 26(2)] that a resignation shall not entail forfeiture of past service when it has been rendered to take up with proper permission another appointment under the Government. 9. The procedure to be followed in these cases, where benefit of past service is allowed has been further amplified by Government vide its notification dated 4.12.1971, in terms whereof the order accepting resignation should indicate that the employee has resigned to join another employment with proper permission and that the benefit of counting past service under Rules 26(2) of the CCS (Pension) Rules, would be admissible to him. 10. In coming to such conclusions, this Court is duly supported by the Hon’ble Supreme Court in “State of Punjab & others versus Gurbaran Singh”, (2019) 4 Supreme Court Cases 805, while dealing with the pari materia provision, contained in Rule 7.5(1) of the Punjab Service Rules (1) Para 1, observed as under : 5. We have heard Ms. Uttara Babbar, learned advocate for the State and Mr. Kumar Shashank, learned advocate for the respondent. Ms. Babbar relied upon the decision of this Court in Union of India and others vs. Braj Nandan Singh, which considered Rule 26 of the Central Civil Service (Pension) Rules (‘CCS Rules’ for short) and held that resignation from service would entail forfeiture of past service. 6. Sub-Rules (1) and (2) of Rule 7.5 of the Rules which are relevant for the present purposes are to the following effect:- “7.5 (1) Resignation from a service or a post, unless it is allowed to be withdrawn in public interest by the 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 for pension.” 7. In Braj Nandan Singh pari materia provision viz. Rule 26 of CCS Rules came up for consideration. Para 5 of the decision was as under :- “5. In order to appreciate rival submissions Rule 26 which is the pivotal provision needs to be quoted. The same reads as under: “26. In Braj Nandan Singh pari materia provision viz. Rule 26 of CCS Rules came up for consideration. Para 5 of the decision was as under :- “5. In order to appreciate rival submissions Rule 26 which is the pivotal provision needs to be quoted. The same reads as under: “26. Forfeiture of service on resignation.— (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the 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.” Rule 26 as the heading itself shows relates to forfeiture of service on resignation. In clear terms it provides that resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service. The language is couched in mandatory terms. However, sub-rule (2) is in the nature of an exception. It provides that 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. Admittedly this is not the case in the present appeal. Rule 5 on which great emphasis was laid down by the learned counsel for the respondent deals with regulation of claims to pension or family pension. Qualifying service is dealt with in Chapter III. The conditions subject to which service qualifies are provided in Rule 14. Chapter V deals with classes of pensions and conditions governing their grant. The effect of Rule 26 sub-rules (1) and (2) cannot be lost sight of while deciding the question of entitlement to pension. The High Court was not justified in its conclusion that the rule was being torn out of context. After the past service is forfeited the same has to be excluded from the period of qualifying service. The language of Rule 26 sub-rules (1) and (2) is very clear and unambiguous. It is trite law that all the provisions of a statute have to be read together and no particular provision should be treated as superfluous. That being the position after the acceptance of resignation, in terms of Rule 26 sub-rule (1) the past service stands forfeited. The language of Rule 26 sub-rules (1) and (2) is very clear and unambiguous. It is trite law that all the provisions of a statute have to be read together and no particular provision should be treated as superfluous. That being the position after the acceptance of resignation, in terms of Rule 26 sub-rule (1) the past service stands forfeited. That being so, it has to be held that for the purpose of deciding question of entitlement to pension the respondent did not have the qualifying period of service. There is no substance in the plea of the learned counsel for the respondent that Rule 26 sub-rules (1) and (2) has limited operation and does not wipe out entitlement to pension as quantified in Rule 49. The said rule deals with amount of pension and not with entitlement.” 8. It was thus clearly laid down that in case of resignation from service or a post, unless the matter was covered under Sub-Rule 2 of Rule 26 of CCS Rules, it would entail forfeiture of past service. Since the past service would stand forfeited, the same would be excluded from the period of qualifying service, and as such for deciding the question of entitlement to pension, the employee would not have the qualifying period of service.” 11. Now, adverting to the records of the instant case, it would be noticed that the petitioner has not attached any document which can go to indicate that he had not submitted his technical resignation to his parent department, rather he was given fresh appointment by the respondent on 9.10.1974, as is evident from the service book of the petitioner annexed by the respondent with the reply, as Annexure R-1. 12. Once that be so, obviously, the past service rendered by the petitioner in the Forest Department cannot be counted/clubbed for any purpose with the service rendered by him in the Revenue Department. 13. In view of the aforesaid observations and reasons recorded, I find no merit in the petition and the same is accordingly dismissed, leaving the parties to bear their own costs. The pending application(s), if any, are also disposed of.