Patna High Court
The Union Of India vs Alok Arya on 17 February, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1051 of 2023
In
Civil Writ Jurisdiction Case No.1379 of 2023
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1. The Union of India through the Secretary Home, New Delhi.
2. The Director General, B.S.F., CGO Complex, New Delhi.
3. The Commandant, 61 Battalion, BSF, Patiram, Atrai, Distt-Dakshin
Dinajpur, West Bengal-733158.
... ... Appellant/s
Versus
Alok Arya S/o Late Uday Shankar Bhagat R/o Village-Chandaniya, P.S.
Sangrampur, Distt-Munger.
... ... Respondent/s
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Appearance :
For the Appellant/s : Ms. Kanak Verma, C.G.C.
For the Respondent/s : Mr. Jai Prakash Verma, Advocate
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 17-02-2025
We have heard Ms. Kanak Verma, the learned
C.G.C. for the appellants and Mr. Jai Prakash Verma, the
learned Advocate for the respondent.
2. The respondent was appointed in BSF in
the year 2012 and had tendered his resignation from the
post on 30.06.2022 i.e. after having completed 9 years,
7 months and 12 days. His past services were forfeited
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
and, therefore, he was not granted pension and gratuity.
3. However, when he approached the learned
Single Judge vide C.W.J.C. No. 1379 of 2023, it was
ordered on 03.05.2023 that the respondent be given the
benefit of gratuity in view of Section 7 (3-A) of the
Payment of Gratuity Act, 1972 and also interest on it,
after calculating the same within a period of six weeks.
4. The aforenoted judgment has been put to
challenge by the Union of India in the present appeal on
the sole ground that if a person resigns from service, his
past service is forfeited.
5. Section 26 (1) of the Central Civil Services
(Pension) Rules, 2021 clearly 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withdrawn in the public interest by the appointing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.
6. Sub-Clause (2) of Section 26 the Central
Civil Services (Pension) Rules, 2021 further clarifies, by
way of an exception, that a resignation shall not entail
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
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 the service qualifies.
7. The respondent resigned without indicating
to his employer that such resignation was for the
purposes of taking up another appointment with the
Government where he qualified.
8. Thus, his entire past service was forfeited
making him ineligible for being paid pension.
9. Pension also includes gratuity.
10. The provisions contained in the Payment
of Gratuity Act, 1972 would not apply to an employee of
the Central Government, if he is governed by other
Rules.
11. In any view of the matter, the judgment
passed by the learned Single Judge is unsustainable in
the eyes of law for not having considered the import of
Section 26 (1) and (2) of the Central Civil Services
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
(Pension) Rules, 2021, which applies to the case of the
respondent.
12. Learned counsel for the appellant/Union
of India has also drawn the attention of this Court to a
judgment of the Supreme Court in Union of India and
Ors. vs. Braj Nandan Singh : (2005) 8 SCC 325 ,
wherein it has been explained that Section 26 (2) has to
be read in conjunction with Section 26(1) and 26(2) only
carves an exception under certain circumstances.:
"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.
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
Admittedly this is not the case of the
Respondent. 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.
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
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
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."
13. In the aforenoted judgment, the Supreme
Court concluded that it is a well-settled principle in law
that the Court cannot read anything into a statutory
provision, which is plain and unambiguous. A statute is
an edict of the Legislature and the language employed in
a statute is the determinative factor of legislative intent.
14. On our finding that the resignation was
simpliciter and not for the purposes of taking up
appointment, for which no permission also was taken,
the services of the respondent stood forfeited and less
than ten years in service would not have otherwise also
qualified the appellant for being paid pension.
15. The judgment passed by the learned
Single Judge is, thus, set aside.
Patna High Court L.P.A No.1051 of 2023 dt.17-02-2025
16. The respondent is not entitled for any
pension because of his resignation in view of Section 26
(1) of the Central Civil Services (Pension) Rules, 2021.
17. The appeal stands allowed.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
manoj/rajesh-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.02.2025
Transmission Date NA
