Allowed

Sreejesh K. v. Union of India

Kerala HC9 Jun 2016OP (CAT)/153/2016

Case brief

AI extract

What is this about?

High Court set aside lower orders dismissing a petition. Court held that an unconditional NOC granted by the parent department constitutes 'proper permission' under the CCS (Pension) Rules. Consequently, the employee's resignation to join a new government post is a technical formality and does not forfeit past service. The 6th respondent was directed to issue a service certificate allowing the pet

What did the court decide?

Orders of Tribunal and respondents were set aside; 6th respondent directed to issue service certificate within two months considering past service and training periods.

Sreejesh K. Vs Union of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938

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OP (CAT).No. 153 of 2016 (Z)

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PETITIONER :

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SREEJESH.K, AGED 31, S/O ANANDAN.M, INSPECTOR OF INCOME TAX, INCOME TAX OFFICE, KOZHIKODE, RESIDING AT SREEJALAYAM, MELUR, PALAYAD P.O, THALASSERY 670 661.

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BY ADVS.SRI.MARTIN G.THOTTAN SMT.R.JAGADA BAI

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RESPONDENTS :

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UNION OF INDIA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF POSTS, NEW DELHI 110 001.

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THE DIRECTOR GENERAL (POSTS), DAK BHAVAN, SANSAD MARG, NEW DELHI 110 116.

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THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, TRIVANDRUM 695 033.

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THE POST MASTER GENERAL, NORTHERN REGION, KERALA CIRCLE, KOZHIKODE 673 011.

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DIRECTOR OF POSTAL SERVICES, NORTHERN REGION, KERALA CIRCLE, KOZHIKODE 673 011.

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THE SUPERINTENDENT, RAILWAY MAIL SERVICE 'CT' DIVISION, CALICUT 673 032.

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THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT 679 001.

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THE ADDITIONAL COMMISSIONER OF INCOME TAX, INCOME TAX DEPARTMENT, KOZHIKODE 673 001.

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R1-R6 BY ADV. SRI.R.PRASANTH KUMAR, CGC BY SRI.C.S.DIAS,SC, RAILWAYS BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 153 of 2016 (Z)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.989 OF 2013 FILED BY THE PETITIONER BEFORE THE CAT/ ERNAKULAM BENCH.

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EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 TO 6 IN OA 989/2013.

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EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 7TH RESPONDENT RAILWAYS DATED 04-01-2014.

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EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT DATED 05-01-2014.

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EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN THE REPLY STATEMENT FILED BY THE 7TH RESPONDENT DATED 25-02-2014.

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EXHIBIT P6 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 03-03-2014 FILED BY THE POSTAL DEPARTMENT.

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EXHIBIT P7 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 7TH RESPONDENT DATED 16-05-2014.

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EXHIBIT P8 TRUE COPY OF THE JUDGEMENT DATED 15-10-2015 IN OA 989 OF 2013 PASSED BY THE CAT, ERNAKULAM BENCH.

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EXHIBIT P9 TRUE COPY OF THE REVIEW APPLICATION NO 29 OF 2015 IN OA 989 OF 2013 FILED BY THE APPLICANT DATED 17/11/2015.

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EXHIBIT P10 TRUE COPY OF THE ORDER DATED 28-12-2015 IN RA NO 180/00029/2015 IN OA 989 OF 2013.

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RESPONDENTS' EXHIBITS :- NIL.

True copy

P.A to Judge

“CR”

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(CAT)No.153 of 2016

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Dated this the 9^th day of June, 2016

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JUDGMENT

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Anil K. Narendran, J.

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The petitioner herein is the applicant in O.A.No.989 of 2013 on the file of the Central Administrative Tribunal, Ernakulam Bench. The said O.A. was filed mainly seeking an order to quash Annexures A12 and A15 orders and for a declaration that the service rendered by the petitioner herein in the Department of Posts from 17.11.2003, which includes the period spent on preappointment training, is liable to be taken into account as his pensionable service.

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The reliefs sought for in the O.A. were opposed by respondents 1 to 6 by filing Ext.P2 reply statement, which was followed by Ext.P6 additional reply statement. The 7^th respondent has filed Ext.P3 reply statement, which was followed by Ext.P7 additional reply statement. The petitioner herein has also filed Exts.P4 and P5 rejoinders.

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After considering the rival contentions, the Tribunal by

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Ext.P8 order dated 15.10.2015 dismissed the O.A., holding that the petitioner herein is not entitled for the reliefs prayed for. Seeking review of Ext.P8 order, the petitioner filed R.A.No.29 of

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2015 before the Tribunal, which ended in dismissal by Ext.P10 order dated 28.12.2015. Feeling aggrieved by Exts.P8 and P10 orders, the petitioner is before this Court in this Original Petition.

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We heard the arguments of the learned counsel for the petitioner/applicant, the learned Assistant Solicitor General of India for respondents 1 to 6, the learned Standing Counsel for Southern Railway, representing the 7^th respondent and also the learned Standing Counsel for Income Tax Department, representing the 8^th respondent.

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The pleadings and materials on record would show

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that, the applicant was provisionally selected to the post of Sorting Assistant in RMS 'CT' Division (Railway Mail Service - Calicut Division) under the Department of Posts, vide Annexure A2 memo dated 17.10.2003. Vide the said memo, he was required to undergo theoretical training for a period of 2½ months at the Postal Training Centre, Mysore. On satisfactory

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completion of theoretical training, he was sent for practical training at the Sub-Record Office (SRO) Tirur, vide Annexure A4 memo dated 2.2.2004. On satisfactory completion of practical training, he joined service as Sorting Assistant at SRO Tirur, on 18.2.2004.

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In the year 2006, while continuing as Sorting Assistant in RMS 'CT' Division, the applicant had applied for recruitment to the post of Temporary Enquiry cum Reservation Clerk-II in Southern Railway. According to the applicant, the application was sent directly to the Railway Recruitment Board, as the time limit for applying the post was very short. The matter was latter informed to the 6^th respondent, the appointing authority, who has issued Annexure A5 No Objection Certificate (NOC) dated 18.7.2006 certifying that the Department of Posts has no objection to relieve the applicant from the post of Sorting Assistant in RMS 'CT' Division, at SRO Thalasserry in the event of getting a better job elsewhere, if he applies for and resigns the post presently held by him.

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Vide Annexure A6 communication of the 7^th respondent

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dated 8.2.2007, the applicant was offered appointment as Temporary Enquiry cum Reservation Clerk in Southern Railway, Palakkad Division, and he was asked to undergo the prescribed medical examination/physical fitness test, followed by training for a period of one month. On 27.7.2007, the applicant submitted Annexure A7 request before the 6^th respondent expressing his intention to resign from the post of Sorting Assistant, in order to take up employment in Southern Railway. Vide letter dated 7.8.2007 of the 6^th respondent, the applicant was asked to specify the date of resignation. The applicant, vide Annexure A8 letter dated 7.8.2007 informed the 6^th respondent that he would like to resign from the post of Sorting Assistant with effect from 14.8.2007. Accordingly, the 6^th respondent vide Annexure A9 memo dated 14.8.2007 accepted the resignation of the applicant from the post of Sorting Assistant and he was permitted to be relieved from service with effect from 14.8.2007 afternoon. On 16.8.2007 the applicant joined service as Temporary Enquiry cum Reservation Clerk in Southern Railway.

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In order to count the past service in the Postal

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Department as qualifying pensionable service, the applicant submitted Annexure A11 representation dated 24.11.2008 before the 6^th respondent, for service certificate. The said request was rejected vide Annexure A12 communication dated 2.12.2008 of the 6^th respondent, by which the applicant was informed that, since the application for selection to the post of Enquiry cum Reservation Clerk was not forwarded through proper channel his request for the certificate mentioned in Annexure A11 cannot be acceded to.

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The applicant preferred Annexure A13 appeal before the 4^th respondent, seeking interference in the matter. As nothing was forthcoming from the 4^th respondent, the applicant submitted Annexure A14 representation dated 27.7.2009 before the 3^rd respondent. Vide Annexure A15 communication dated 10.2.2011 of the 4^th respondent, the applicant was informed that as per the extent rules, when a Government servant applies for a post in another department through proper channel and on selection when he is asked to resign for administrative reasons, such resignations will be treated as a 'Technical Formality' and the

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benefit of service would be admissible for the purpose of pension, leave at credit, etc. However, in the case of the applicant, he has not forwarded the application for the post in Southern Railway through proper channel, and only on the 2^nd stage of recruitment process, when the Railway authorities sought for an NOC from the parent Department, that he has approached the Department of Posts for the such certificate. Mere granting of NOC by the parent Department alone would not entail to count the benefit of past service. Hence the request made by the applicant cannot be acceded to.

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While working as Temporary Enquiry cum Reservation Clerk in Southern Railway, the applicant was selected for the post of Inspector of Income Tax under the Income Tax Department and he tendered resignation on 1.11.2011, in order to take up new employment. The resignation tendered by the applicant was accepted by the 7^th respondent with effect from 25.11.2011 forenoon, vide Annexure A16 memorandum dated 24.11.2011, by accepting the 'technical resignation' on the condition that the applicant will serve under the Commissioner of Income Tax,

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Kottayam for the balance period of 10 months, i.e., till 15.8.2012. It was also made clear that, in the event of the applicant leaving service of the above Department before completion of the above period, for a job were the exemption from bond obligation is not available, he will have to refund the cost of training which he had availed of from Southern Railway as Enquiry cum Reservation Clerk-II, in terms of the bond executed by him with the Railway Administration on 16.8.2007.

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By Annexure A17 appointment order dated 27.10.2011 of the Commissioner of Income Tax, Kottayam the applicant was appointed as Income Tax Inspector and posted to the office of the Joint Commissioner of Income Tax, Alappuzha. Accordingly the applicant joined duty as Income Tax Inspector. The service rendered by the applicant in Southern Railway for the period from 16.8.2007 to 24.11.2011, including the period of training, was taken into account as his pensionable service in the Income Tax Department, in terms of Annexure A18 OM dated 22.12.1983, which provides that the period of pre-appointment training should count as qualifying service for pension.

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As per Rule 2 of the Central Civil Services (Pension) Rules, 1972 the said Rules shall apply to Government servants appointed on or before 31.12.2003 including civilian Government servants in the Defence Services appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, excluding those enumerated under clauses (a) to (h) of Rule 2.

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Regarding the applicability of CCS (Pension) Rules in respect of those appointed prior to 1.4.2004, the Department of Pension and Pension Welfare, Government of India, vide OM No.38/58/06-P&PW(A) dated 11.10.2006 has clarified that the employees who were put on induction training after their appointment prior to 1.1.2004 and are paid salary from that date would be covered under the CCS (Pension) Rules.

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Later, vide OM No.38/58/06-P&PW(A) dated 5.3.2008 the Department has clarified that, the employees who were required to undergo departmental training relating to jobs prior to 1.1.2004 before they were put on regular employment and were in receipt of stipend during such training would also be

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covered under the CCS (Pension) Rules.

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Regarding the applicability of CCS (Pension) Rules in respect of Postal Employees who were put on induction training prior to 1.1.2004 and were in receipt of stipend, the Director General of Posts vide DG(P)No.4-3/08-Pension dated 27.3.2008 clarified that the employees who were required to undergo departmental training relating to jobs prior to 1.1.2004 before they were put on regular employment and were in receipt of stipend during such training would also be covered under the CCS (Pension) Rules provided the period spent on such training was eligible for being counted as qualifying service under the CCS (Pension) Rules.

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Rule 15 of the CCS (Pension) Rules, which deals with counting of service on probation, provides that service on probation against a post if followed by confirmation in the same or another post shall qualify as service.

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Rule 22 of the CCS (Pension) Rules, which deals with counting of periods spend on training, provides that the Government may, by order, decide whether the time spent by a

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Government servant under training immediately before appointment to service under that Government shall count as qualifying service. The Department of Pension and Pension Welfare, vide OM No.28/32/81-Pension Unit dated 22.12.1983 has ordered that, in respect of Group 'C' and Group 'D' employees, who are required to undergo departmental training relating to jobs before they are put on regular employment, training period may be treated as qualifying service for pension, if the training is followed immediately by an appointment. This benefit will be admissible to all Group 'C' and Group 'D' employees even if the officers concerned are not given the scale of pay of the post but only a nominal allowance.

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Rule 26 of the CCS (Pension) Rules deals with forfeiture of service on resignation. Sub-rules (1) to (3) of Rule 26 read thus;

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“26. Forfeiture of service on resignation

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(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.

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(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper

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permission, another appointment, whether temporary or permanent, under the Government where service qualifies.

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(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.”

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As per sub-rule (1) of Rule 26 of the CCS (Pension) Rules, 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. However, going by sub-rule (2) of Rule 26, 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.

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Sub-rule (2) of Rule 26 of the CCS (Pension) Rules corresponds to clause (b) of Article 418 of the Civil Service Regulations, originally published on 1.5.1889 by the Government of India as a composite code intended to define the conditions under which salary, leave, pension and other allowances are

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earned by service in Civil Departments, and in what manner they are calculated. Articles 418 under Part IV, Chapter XVII of the Civil Service Regulations deals with resignation. Clause (b) of

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Article 418 of the Civil Service Regulations reads thus;

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“418(b). Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not resignation from public service.”

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On the question as to whether in cases falling under clause (b) of Article 418 of the Civil Service Regulations a separate sanction should be issued indicating that resignation has been accepted under the above provisions, in order to enable the Audit/Administrative Officer to regulate the consequential benefits in the matter of pay fixation, carry forward of leave, pension etc., the Department of Expenditure vide OM No.F.3(6)E.V(A)/71 dated 4.12.1971 has clarified that, in the cases falling under clause (b) of Article 418, the order accepting the resignation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under the said clause of Article 418 will be admissible to

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him. The contents of the above order should also be noted in the service book of the individual concerned under proper attestation. However, the issuance of any separate sanction has not been considered necessary.

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Later, on the question as to whether the instructions contained in the aforesaid OM dated 4.12.1971 will also apply to cases decided before the date of issue of those instructions, i.e., before 4.12.1971, the the Department of Expenditure, vide OM No.F.3(6)-E.V(A)/71 dated 20.5.1972 has clarified that, an entry may be made in the Service Book of the Government Servant concerned under proper attestation as laid down in the aforesaid instructions in past cases also where it has been decided to allow the benefits of Article 418 (b) of the Civil Service Regulations.

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The 6^th respondent, the Superintendent of RMS 'CT' Division, relying on Ministry of Finance OM No.3379-E.III(b)/65 dated 17.6.1965 would contend that, only in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the

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benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a 'technical formality'.

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As per the aforesaid OM dated 17.6.1965, a Government servant intending to apply for a post or posts outside his parent office/department under the Government of India should have his application forwarded through the competent authority under whom he was serving at the time of applying for the post. On such request being made, the competent authority should either forward the application or withhold it according as the exigencies of public service may indicate but it should not forward the application conditionally, for example, that in the event of the applicant coming out successful, he will be required to resign his post before taking up the new one. Once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course and the question of his resigning the post held by him in such circumstances should not arise.

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On the other hand, where the application of a Government servant was not forwarded and the Government servant resigned his appointment of his own volition with a view

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to his taking up the new post or where it was not possible to forward his application in the public interest but the Government servant had volunteered to resign his post or where the conditions of service in an office demand as a matter of policy that the Government servant should resign his post in the event of his taking up another post outside, resignation of public service will subsist and entail forfeiture of past service. Therefore, it was decided in OM dated 17.6.1965 that, where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for the purpose of fixation of pay in the new post treating the resignation as a 'technical formality'.

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The Department of Personnel and Training issued OM No.28034/4/94-Estt.A dated 31.5.1994 consolidating various

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instructions issued from time to time on resignation of Government servant. It has been stated in the said OM that, it is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, in which case the resignation should not be accepted straightaway but only when alternative arrangements for filling the post have been made; or where a Government servant, who is under suspension, submits a resignation, in which case the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation.

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Government of India, Department of Economic Affairs, vide notification dated 22.12.03 introduced a New Re-structured 'Defined Contributory Pension Scheme' for new entrants to the

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Central Government service appointed on or after 1.1.2004. The said pension scheme is mandatory for all new recruits to the Central Government services from 1.1.2004 and such employees would not be entitled to pension under the CCS (Pension) Rules.

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The Department of Pension and Pensioners Welfare vide OM No.28/30/2004-P&PW(B) dated 26.7.2005 has clarified that, all the employees who entered into Central Government service or in the service of an Autonomous Body set up by Central Government (satisfying the conditions laid down in Para.4 of OM No.28/10/84-PU dated 29.8.1984), on or before 31.12.2003 and who were governed by the old pension scheme under the CCS (Pension) Rules will continue to be governed by the same pension scheme and same rules, for the purpose of counting of their past service under the said rules or under the provisions of OM No. 28/10/84-PU dated 29.8.1984, as amended from time to time, if such employees submit technical resignation on or after 1.1.2004, to take up new appointment in another Ministry or Department of the Government of India or an Autonomous Body set up by the Central Government, in which

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the pension scheme under CCS (Pension) Rules already exists for the employees who entered into service on or before 31.12.2003.

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The 6^th respondent, the Superintendent of RMS 'CT' Division, who has issued Annexure A5 NOC dated 18.7.2006, would contend that the applicant should have forwarded his application for recruitment to the post of Enquiry cum Reservation Clerk in Southern Railway through proper channel, i.e., through the competent authority under whom he was serving at the time of applying for the said post. The applicant, having failed to forward his application through proper channel, is not entitled to claim the benefit under sub-rule (2) of Rule 26 of the CCS (Pension) Rules.

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As we have already noticed, at the time of applying for the post of Enquiry cum Reservation Clerk in Southern Railway, the applicant was serving as Sorting Assistant in RMS 'CT' Division, under the 6^th respondent. On 17.7.2006, he made Annexure R1 request for NOC before the 6^th respondent (produced along with Ext.P6 additional reply statement filed by the 6^th respondent), pointing out that he had applied for the post

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of Enquiry cum Reservation Clerk in Southern Railway and as per the call letter received after the written examination, serving employees should submit a NOC from their present employer. A copy of the call letter and also the notification for recruitment were enclosed along with Annexure R1. It was based on the said request that, the 6^th respondent issued Annexure A5 NOC, certifying that the Department of Posts has no objection to relieve the applicant from the post of Sorting Assistant in RMS 'CT' Division, at SRO, Thalasserry in the event of getting a better job elsewhere, if he applies for and resigns the post presently held by him.

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On getting an offer for appointment as Temporary Enquiry cum Reservation Clerk in Southern Railway, Palakkad Division, vide Annexure A6 communication of the 7^th respondent dated 8.2.2007, the applicant made Annexure A7 request before the 6^th respondent expressing his intention to resign from the post of Sorting Assistant, in order to take up employment in Southern Railway. The 6^th respondent vide letter dated requested the applicant to specify the date of resignation, pursuant to

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which, the applicant vide Annexure A8 letter dated 7.8.2007 informed the 6^th respondent that he would like to resign from the post of Sorting Assistant with effect from 14.8.2007. Accordingly, the 6^th respondent vide Annexure A9 memo dated 14.8.2007 accepted the resignation and the applicant was permitted to be relieved from service with effect from 14.8.2007 afternoon.

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The stand taken by the 6^th respondent in Ext.P6 additional reply statement is that, no where in Annexure A5 NOC it has been stated that the applicant is eligible for the benefit of past service in terms of sub-rule (2) of Rule 26 of the CCS (Pension) Rules. The document marked as Annexure R2 is a covering letter dated 19.7.2006 of the 6^th respondent, addressed to SRO Thalasserry, enclosing therewith Annexure A5 NOC. The last paragraph of Annexure R2 reads thus;

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“It is seen that the application for the post has not been forwarded through this Office. No intimation regarding this was also given by the official. He may be informed that NOC will not be issued in such cases in future.”

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None of the documents on record would show that the

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the resignation tendered by the applicant was accepted on condition that such resignation would entail forfeiture of his past service as Sorting Assistant. Further, none of the documents would show that the applicant was ever informed that such resignation would entail forfeiture of his past service. The 6^th respondent has no such case, either in Ext.P2 reply statement or in Ext.P6 additional reply statement. On the other hand, Annexure R2 covering letter would indicate that, the 6^th respondent had condoned the procedural irregularity in not forwarding the application for recruitment as Enquiry cum Reservation Clerk through proper channel and issued Annexure A5 NOC, however, making it clear that NOC will not be issued in such cases in future.

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It is well settled that pension is not a charity or bounty

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nor is it a conditional payment solely dependent on the sweet will of the employer. Pension is in the nature of deferred payment earned for rendering long and satisfactory service with the employer. It is a social security measure, consistent with the socio-economic requirements, providing safeguards to the

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Government servants in their later years of life, who have shed their sweat and blood for their employer during their long service. Being a right attached to the office, pension cannot be denied arbitrarily.

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The very object of Rule 26 of the CCS (Pension) Rules is to provide the benefit of past service to those Central Government servants who take up employment under another Central Government Department, office, etc. after resigning from his parent or former department, even before completing the minimum qualifying service for pension. The past service of such employees will be counted towards pension under the CCS (Pension) Rules, provided such employees originally joined Government service prior to 1.1.2004. The pension scheme under CCS (Pension) Rules being a beneficial legislation, the provisions contained in Rule 26 should receive a liberal interpretation, so as to give the said Rule a wider meaning rather than a restrictive meaning which would negate the very object of the said Rule.

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The Government of India decisions with reference to Rule 26 of the CCS (Pension) Rules, which have been referred to

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hereinbefore, make it explicitly clear that the competent authority can withhold the application made by a Government servant intending to apply for a post outside his parent or present

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department under the Government of India, only in the exigencies of public service. It has also been made clear in OM dated 31.5.1994 that, it is not in the interest of the Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post; or where a Government servant, who is under suspension, submits a resignation, in which

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case the competent authority should examine whether it would be in the public interest to accept such resignation. In the case of the applicant no such circumstances have been pressed into service either before the Tribunal or before this Court.

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Once the 6^th respondent has issued Annexure A5 NOC unconditionally (after condoning the procedural irregularity in not

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forwarding the application for recruitment through proper channel, which is evident from Annexure R2 covering letter dated dated 19.7.2006) and the applicant has been offered appointment to the post applied for, he should be relieved of his duties to join the new post as a matter of course, on tendering resignation as a technical formality. Such resignation to take up another appointment with proper permission shall not entail forfeiture of his past service, in view of the provisions under subrule (2) of Rule 26 of CCS (Pension) Rules.

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The provisions under sub-rule (2) of Rule 26 have statutory force, which will prevail over the Government of India decisions under the said rule, which are only executive instructions. Annexure A5 NOC granted by the 6^th respondent on 18.7.2006 can be treated as a 'proper permission' to the applicant, as contemplated under sub-rule (2) of Rule 26 of the CCS (Pension) Rules, to take up appointment as Temporary Enquiry cum Reservation Clerk in Southern Railway, pursuant to Annexure A6 communication dated 8.2.2007 of the 7^th respondent. Therefore, the resignation of the applicant from the

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post of Sorting Assistant with effect from 14.8.2007 (more than one year after the issuance of Annexure A5 NOC) in order to take up appointment as Temporary Enquiry cum Reservation Clerk shall not entail forfeiture of his past service. In that view of the matter, the stand to the contra taken by the 4^th and 6^th respondents in Annexures A12 and A15 cannot be sustained in law, so also the reasoning of the Tribunal in Exts.P8 and P10 orders.

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In the result, Exts.P8 and P10 orders of the Tribunal and Annexures A12 and A15 orders of the 4^th and 6^th respondents are set aside and the Original Petition is disposed of directing the 6^th respondent to reconsider the request made by the applicant in Annexure A11 representation dated 24.11.2008 and issue a proper certificate, keeping in mind the observations contained in this judgment, and after affording him an opportunity of personal hearing. While issuing such certificate, the 6^th respondent shall also consider the entitlement of the applicant to count the period during which he was put on induction training prior to 1.1.2004 as qualifying service under the CCS (Pension) Rules, in terms of

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O.P.(CAT)No.153 of 2016

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the clarification issued by the Director General of Posts vide DG (P)No.4-3/08-Pension dated 27.3.2008.

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The 6^th respondent shall take necessary steps in this

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regard, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a certified copy of this judgment.

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The further reliefs sought for in the O.A. against the 7^th and 8^th respondents are left open to be pursued by the applicant in appropriate proceedings, based on the certificate to be issued by the 6^th respondent in terms of this judgment. The contentions raised by the 7^th respondent in Ext.P3 reply statement and Ext.P7 additional reply statement are left open to be urged in such proceedings.

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No order as to costs.

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Sd/-

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P.R. RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K. NARENDRAN,

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JUDGE

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