Madras High Court
C.Nanthan vs The Union Of India on 21 April, 2021
W.A.Nos.651 and 669 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:21.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE P.RAJAMANICKAM
W.A.Nos.651 and 669 of 2021
and CMP.Nos.3183 and 3498 of 2021
C.Nanthan ....Appellant in W.A.No.651/2021
Robitashav Jatav ... Appellant in W.A.No.669/2021
Vs
1.The Union of India,
rep.by its Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2.The Director General,
Central Industrial Security Force,
CGO Complex,
Lodhi Road, New Delhi 110 003.
3.The Deputy Inspector General,
Central Industrial Security Force,
Neyveli Lignite Corporation (N),
Neyveli, Cuddalore District.
4.The Assistant Commandant / Admn.
Central Industrial Security Force Unit,
https://www.mhc.tn.gov.in/judis/ 1
W.A.Nos.651 and 669 of 2021
Neyveli Lignite Corporation,
Neyveli, Cuddalore District. ..Respondents in both appeals
Common Prayer:- Writ Appeal filed under Clause 15 of the Letters
Patent against the order passed in W.P.Nos.28969 & 28970/2013 dated
18.08.2020 passed by this Court.
For Appellant in both appeals : Mr.R.Thiyagarajan
For Respondent in both appeals : Mr.Venkataswamy Babu
COMMON JUDGMENT
[Judgment of the Court was delivered by M.SATHYANARAYANAN, J.]
The appellants are petitioners in W.P.Nos.28969 and 28970 of
2013 respectively. The appellants / writ petitioners filed the said writ
petitions, praying for issuance of Writ of Certiorarified Mandamus to call
for the records and quash the order of the 2nd respondent dated
27.05.2013 as communicated in proceedings dated 10.06.2013
respectively with consequential direction to count the services rendered
by them in Central Industrial Security Force, for a period of 10 years and
8 months & 11 years and 7 months respectively and pay pension from
01.04.2012, with a further direction to continue to pay the pension due to
the writ petitioners along with other writ petitioner with similar relief in
W.P.No.25952 of 2013, came to be dismissed vide common impugned
W.A.Nos.651 and 669 of 2021
order dated 18.08.2020 and aggrieved by the same, the present Writ
Appeals are filed.
2. The learned counsel appearing for the appellants / writ
petitioners would submit that though the respective appellants in their
resignation letters dated 24.03.2012 had cited domestic problem for
resignation, the fact remains that in order to join other services only, they
got relieved and the respondents were well aware of the same and also
made a plea that in similar facts and circumstances, concession of
counting the past services has also been extended and prays for
interference.
3. The learned counsel appearing for the respondents would submit
that as against dismissal of W.P.No.25952 of 2013, the Writ Appeal in
W.A.No.21 of 2021 has been filed and the same came to be dismissed
vide judgment dated 21.01.2021 and further drawn the attention of this
Court to Rule 26(2) of the Central Civil Services (Pension) Rules, 1972
and would submit that in the light of the said provisions, coupled with
the factual aspects that no permission had been obtained by the
W.A.Nos.651 and 669 of 2021
appellants / writ petitioners, before joining the services of other
employer, and they are not entitled to any benefits and the said aspect
has been rightly taken note of by the learned Judge and dismissed the
Writ Petitions and prays for dismissal of these Writ Appeals.
4. Though the appellant in W.A.NO.651 of 2021 / petitioner in
W.P.No.28969 of 2013, joined the services of Central Industrial Security
Force (in short 'CISF') as a Constable on 29.07.2001 and after serving
there for 10 years and 8 months, he submitted his resignation on
31.03.2012, citing some personal reasons and similarly the appellant in
W.A.No.669 of 2021 / petitioner in W.P.No.28970 of 2013, joined as a
Constable in the services of CISF on 14.08.2000 and after serving there
for 11 years and 7 months, he submitted his resignation on 06.03.2012
citing personal reasons, and both of them after resignation joined the
services of the Bharat Heavy Electricals Limited (BHEL), Trichy as Sub
Inspector (Fire), after acceptance of resignation by the former employer
i.e., CISF. It is relevant to extract Rule 26 of the Central Civil Services
(Pension) Rules, 1972:
W.A.Nos.651 and 669 of 2021
''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 :-
that the resignation was tendered by the
Government servant for some compelling reasons
which did not involve any 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 ;
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 ;
W.A.Nos.651 and 669 of 2021
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 ;
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 for 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 the 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.''
5. Sub Rule (2) of Rule 26, makes it clear that if the resignation is
submitted with proper permission seeking another appointment, whether
temporary or permanent, then the past services would be taken into
consideration. Admittedly in this case on hand, the petitioners made an
attempt to get the No Objection Certificate from CISF and the same were
rejected vide Office Memorandum of the Assistant Commandant, CISF
W.A.Nos.651 and 669 of 2021
Unit NLC, Neyveli, dated 03.12.2011 and no further challenge has been
made to the said proceedings. The appellants / writ petitioners had failed
to get the No Objection Certificate and had submitted the resignation
letter citing domestic reasons and the same came to be accepted and
thereafter, both of them had joined BHEL as Sub Inspector (Fire).
6. The Hon'ble Supreme Court of India in the decision reported in
2020 (3) SCC 346 (BSES Yamuna Power Limited Vs. Ghanshyam
Chand Sharma and another) has considered the issue relating to
resignation and voluntary retirement and while answering the same, held
that the resignation cannot be deemed as voluntary retirement on
completion of qualifying service for the purpose of pensionary benefits
and the resignation is different from voluntary retirement and applicable
legal consequences are distinct.
7. The Hon'ble Supreme Court of India has also placed reliance
upon the judgment reported in 2019 (4) SCC 479 (LIC Vs. Shree Lal
Meena), which in turn has also placed reliance upon the judgment
reported in 2004 (9) SCC 461 (RBI Vs. Cecil Dennis Solomon) and it is
relevant to extract the said paragraph:
W.A.Nos.651 and 669 of 2021
''12. The Court in Shree Lal Meena (2) [LIC v. Shree
Lal Meena, (2019) 4 SCC 479 : (2019) 1 SCC (L&S) 713]
elucidated the distinction between resignation and
voluntary retirement in the following terms: (SCC pp. 491-
92, para 22)
“22. … [quoting RBI v. Cecil Dennis Solomon [RBI v. Cecil
Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737] , SCC
pp. 467-68, para 10]
‘10. In service jurisprudence, the expressions
“superannuation”, “voluntary retirement”,
“compulsory retirement” and “resignation” convey
different connotations. Voluntary retirement and
resignation involve voluntary acts on the part of the
employee to leave service. Though both involve
voluntary acts, they operate differently. One of the basic
distinctions is that in case of resignation it can be
tendered at any time, but in the case of voluntary
retirement, it can only be sought for after rendering the
prescribed period of qualifying service. Another
fundamental distinction is that in case of the former,
normally retiral benefits are denied but in case of the
latter, the same is not denied. In case of the former,
permission or notice is not mandated, while in the case
of the latter, permission of the employer concerned is a
requisite condition. Though resignation is a bilateral
concept, and becomes effective on acceptance by the
competent authority, yet the general rule can be
displaced by express provisions to the contrary.’”
The above observations highlighted the material
distinction between the concept of resignation and
voluntary retirement. The Court also observed that
while pension schemes do form beneficial legislation in
a delegated form, a beneficial construction cannot run
contrary to the express terms of the provisions: [Shree
Lal Meena (2) case [LIC v. Shree Lal Meena, (2019) 4
W.A.Nos.651 and 669 of 2021
SCC 479 : (2019) 1 SCC (L&S) 713] , SCC p. 495, para
26]
“26. There are some observations on the principles of
public sectors being model employers and provisions of
pension being beneficial legislations (see Shashikala
Devi v. Central Bank of India [Shashikala Devi v.
Central Bank of India, (2014) 16 SCC 260 : (2015) 3
SCC (L&S) 319] ; Asger Ibrahim Amin v. LIC [Asger
Ibrahim Amin v. LIC, (2016) 13 SCC 797 : (2015) 3
SCC (L&S) 12] ). We may, however, note that as per
what we have opined aforesaid, the issue cannot be
dealt with on a charity principle. When the legislature,
in its wisdom, brings forth certain beneficial provisions
in the form of Pension Regulations from a particular
date and on particular terms and conditions, aspects
which are excluded cannot be included in it by
implication.”
8. Admittedly in the case on hand, the appellants / writ petitioners
did not take prior permission and they submitted their resignation letters
citing personal reasons only and their request for the No Objection
Certificate from the previous employer namely CISF, also came to be
rejected and no challenge has been made to the said orders and it has
become final. Though it is the submission of the learned counsel
appearing for the appellants / writ petitioners that in similar facts and
circumstances, the benefit rather benevolence under Sub Rule 2 of Rule
26 of the Central Civil Services (Pension) Rules, 1972, have been
extended, no such material has been placed before the learned Single
W.A.Nos.651 and 669 of 2021
Judge and the learned Single Judge has also observed that in the absence
of any such material, the Court could not come to their aid. The reasons
assigned by the learned Single Judge, in the considered opinion of this
Court, is per se sustainable.
9. In the light of the above facts and circumstances and rule
position and in the absence of any error apparent on the face of the
record or infirmity in the reasons assigned, this Court cannot interfere
with the same in exercise of it's power under Clause 15 of the Letters
Patent.
10. In the result, the Writ Appeal is dismissed, confirming the
order dated 18.08.2020 in W.P.Nos.28969 and 28970 of 2013.
Consequently connected miscellaneous petitions are closed. No costs.
[M.S.N., J.,] [P.R.M., J]
21.04.2021
Index : No
Internet :Yes
sk
W.A.Nos.651 and 669 of 2021
To
1.The Secretary to Government,
The Union of India,
Ministry of Home Affairs,
New Delhi.
2.The Director General,
Central Industrial Security Force,
CGO Complex,
Lodhi Road, New Delhi 110 003.
3.The Deputy Inspector General,
Central Industrial Security Force,
Neyveli Lignite Corporation (N),
Neyveli, Cuddalore District.
4.The Assistant Commandant / Admn.
Central Industrial Security Force Unit,
Neyveli Lignite Corporation,
Neyveli, Cuddalore District.
W.A.Nos.651 and 669 of 2021
M.SATHYANARAYANAN, J.,
and
P.RAJAMANICKAM, J.,
sk
W.A.Nos.651 and 669 of 2021
21.04.2021
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