GUWAHATI, India, June 17 -- Gauhati High Court issued the following order on May 19:
1. Heard Mr. P. Mahanta, learned counsel for the petitioner and also heard Mr. S.P. Choudhury, learned Assistant Solicitor General of India, for the respondent authorities.
2. The petitioner herein is aggrievedby the letterof the Director General, Border Roads, being No. 15103/GEN/DGBR/26/E1C'B' dated 12th October, 2010. It is to be noted here that vide said letter, the Director General, Border Roads had rejected the petition filed by the petitioner for grant of pension.
3. Mr. Mahanta, learned counsel for the petitioner submits that the petitioner was appointed on 17.04.1995, as Overseer in General Reserve Engineer Force (GREF), under, Border Roads Organization in the Ministry of Road Transport and Highways, Government of India. But, on account of illness of his mother and in absence of any person to look after her, he had submitted his resignation on 22.03.2008, however he was released from his service with effect from 5th April, 2008 vide releasing order No. 1413/Out/130/E1 Camp dated 4th April, 2008, after rendering of 13 (thirteen) years of continuous service.
3.1. Mr. Mahanta, also submits that after his resignation he has been paid the gratuity and different arrears of pay as per 6th Central Pay Commission with half of the leave encashment by illegally withholding major portion of the leave encashment accumulated for 124 days during his total 13 years service. And in spite of repeated request for granting him pension, the authority did not pay any heed to the same, though the qualifying service period for entitlement pension is 10 years. Mr. Mahanta, further submits that in the meantime, the Ministry of Personnel, Pension and Public Grievances, Department of Pension and Pensioner's Welfare, brought some amendment to the provision of pension and as per Clause 5.3 of the Office Memorandum dated 2nd of September, 2008, full pension has been granted at the rate of 50% of the emoluments or average emoluments, whichever is more beneficial to the retiring Government servant, after qualifying service of 10 (ten) years, by superseding earlier prorate pension, as under Rules 49 (2) (b) of the CCS (Pension) Rule, 1972. Mr. Mahanta submits, the petitioner has filed a representation on 19.08.2010, to grant him pension as per provision of Clause 5.3 of the Office Memorandum dated 2nd September, 2008, but, the respondent authorities vide letter dated 22nd October, 2010 informed the petitioner that his prayer for pension is rejected.
3.2. And being aggrieved, the petitioner approached this Court for issuing direction to the respondent authorities to grant pension to the petitioner by setting aside the letter being No. 15103/GEN/DGBR/26/E1C'B' dated 12th October,2010 issued by the Director General, Border Roads. Mr. Mahanta also submits that the action of the respondent authority in rejecting the representation of the petitioner is illegal and arbitrary and therefore, contended to allow the petition setting aside the impugned letter dated 22nd October, 2010.
4. Per contra, Mr. Choudhury, learned Assistant Solicitor General of India, submits that the respondents authorities have paid all the amounts which the petitioner is legally entitled to and encashment of earned leave and arrear salary as per recommendation of the 6th Pay Commission, had already been paid and no amount is being withheld by the respondent authorities. Mr. Chaudhury further submits that though the petitioner has rendered continuous service for a period of 13 years and the qualifying period for pension is 10 years, yet, the petitioner is not entitled to any pensionary benefit as he resigned from the service and the same has categorically been stated in the letter dated 22nd October, 2010 so annexed as Annexure- R5 in the affidavit-in-opposition filed by the respondent authorities. Under such circumstances, Mr. Choudhury, learned counsel for the respondent submits that the petitioner is not entitled to any relief and therefore, it is contended to dismiss the petition.
5. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the Rule 26 of the CCS (Pension) Rules, 1972, and also the Office Memorandum dated 2nd September, 2008. In order to effectively deal with the issue in the case in hand, a reference to Rule 26 of the CCS (Pension) Rules, 1972 is necessary, which read as under:-
(1) Resignation from services 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 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.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=lG6h6ilt3H1fOBr4DLdM9ZQGDLc7fV9fkUbwtV0Phw9ux5Kq3Y92WlmgsaUDQx5o&caseno=WP(C)/3239/2014&cCode=1&cino=GAHC010011802014&state_code=6&appFlag=)
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