Anu Vyas vs State of Rajasthan and Others

Sandeep Mehta, J.—Heard learned counsel for the parties.

By way of the instant writ petition, the petitioner seeks the following prayers:-

"i) by an appropriate writ, order or direction, the respondents be directed to consider the case of the petitioner for condonation of pre-interruption period i.e. 10th March, 1992 till 31st Oct., 1996 and 4th Nov., 1996 to 15th Oct., 1997 under Rule 27 read with Rule 25 of the Rules of 1996 with all consequential benefits and treat the said period as qualifying service within the meaning of Rule 13 of the Rules of 1996 with all consequential benefits.

ii) by an appropriate writ, order or direction, the respondents be directed to condone the interruption period i.e. between 16th Oct., 1997 till 2nd Dec., 1999 taking into account the service rendered by him with the Central Government Corporation to be a part of qualifying service within the meaning of Rule 33 of the Rules of 1996 with all consequential benefits.

iii) by an appropriate writ, order or direction, the respondents be directed to condone the interruption period of two spells of state service rendered by the petitioner i.e. from 1st Nov., 1996 till 2nd December, 1999 in accordance with the Rajasthan Civil Services Pension Rules, 1996 with all consequential benefits.

iv) Any other appropriate order or direction which this Hon''ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

v) Costs of the writ petition may kindly be awarded to the petitioner."

Facts in brief are that after passing the qualifying examination conducted by the R.P.S.C. on 10.3.1992, the petitioner was initially appointed as a medical officer and was given posting at the Upper Primary Health Center, Bhinmal vide order Annex. 1 dated 10.3.1992. It is averred in the writ petition that the petitioner resigned from State services on 9.9.1996 as he was selected by a Central Government undertaking being Rashtriya Chemical Fertilizers Ltd. The resignation submitted by the petitioner was accepted by the respondent authorities on 24.10.1996 w.e.f. 31.10.1996. The petitioner claims to have worked with the said undertaking for a period of 11 1/2 months i.e. from 4.11.1996 to 15.10.1997. The petitioner thereafter applied for and was granted a fresh appointment in the State services in the department of Medical and Health Services and was appointed as a Medical Officer w.e.f. 3.12.1999. His services were thereafter regularised on 29.11.2000. The petitioner claims that he realized that he made an inadvertent mistake while resigning from the State services earlier and accordingly, he submitted an application dated 20.6.1997 for withdrawing his resignation. It is averred in the writ petition that the petitioner served the respondent State for a period of about 4 years and 7 months between 10.3.1992 to 31.10.1996 and thereafter, he served with a Central Government undertaking before being re-inducted in the State services in the year 1999. By way of the instant writ petition, the petitioner has claimed that the break in service which was caused on account of the aforesaid situation be condoned and for the said period to be counted and taken into account for the purpose of counting the benefits of pensionary scheme upon the petitioner. A reference has been made in support of this contention to the Rajasthan Civil Services Pension Rules, 1996 (for short, referred to herein after as ''the Rules of 1996'') and it has been prayed that the break in service which the petitioner suffered owing to unavoidable circumstances deserves to be ignored for according pensionary benefits to the petitioner.

Before approaching this Court by way of the instant writ petition, the petitioner submitted an appeal before the Rajasthan Civil Services Appellate Tribunal for seeking redressal of his grievances. The said appeal was decided by the Tribunal vide order dated 29.5.2002 leaving the petitioner at liberty to submit a representation to the respondents for ventilating his grievances. Accordingly, the petitioner submitted a representation to the respondents which came to be rejected on 17.10.2002 intimating the petitioner that there was no provision in the Rules for condoning the period of interruption in service and accordingly, the prayer for condoning the said period was rejected.

The petitioner has now approached this Court by way of the instant writ petition with the aforesaid prayers.

Mr. Manoj Bhandari, learned counsel for the petitioner, vehemently contended that as per Rule 27 of the Pension Rules 1996, an interruption between two spells of civil service rendered by a Government servant under a Government is required to be treated as automatically condoned and the pre interruption service should be treated as qualifying service for the purpose of counting the pensionable service. He further contended that as per Rule 33 of the Rules of 1996, a Government servant who has been permitted to be absorbed in a service or post 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 shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him. He thus submitted that in view of the clear provisions of Rules 27 and 33 of the Rules of 1996, the petitioner is entitled for condonation of interruption in service caused upon his joining a Central Government Corporation.

The learned counsel for the respondents opposed the contentions advanced by the petitioner''s counsel on the strength of the reply.

As per the reply to the writ petition, it is pleaded that the petitioner, whilst resigning from the State services submitted an application Annex. 2 in which he mentioned that he had been appointed elsewhere. He did not intimate the Government that he had been selected in a Central Government undertaking. The communication dated 20.6.1997 whereby the petitioner sought to withdraw his resignation has been controverted as being inconsequential as the same was submitted long after the resignation letter was accepted. The claim of the petitioner that he is entitled to condonation of break in service as per Rule 33 is also controverted on the ground that the said Rule applies to a Government servant, who is permitted to be absorbed in the service of a Corporation owned partly or wholly by the Government. It is asserted in the reply that neither the petitioner sought nor was he granted permission to be absorbed in any such Corporation and, therefore, he is not entitled for condonation of break in service for the purpose of pension. In para No. 15 of the reply, it is asserted that the petitioner''s case is not covered by any of the exigencies enumerated in Rule 27 of the Rules of 1996.

Heard and considered the arguments advanced at the bar and perused the material available on record.

For the purpose of deciding the controversy in issue, it will be apposite to advert to the relevant Rules. Rules 25, 26, 27 and 33 of the Pension Rules 1996 are quoted herein below for the sake of ready reference:-

"25. Forfeiture of service on resignation

(1) Resignation from a service or a post, 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 admissible 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.

Effect of interruption in service

(1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:-

(a) authorised leave of absence;

(b) unauthorised absence in continuation of authorised leave of absence so long as the post of absentee is not filled substantively;

(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;

(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest;

(e) joining time while on transfer from one post to another;

(f) abolition of office or loss of appointment owing to the reduction of establishment.

(2) Notwithstanding anything contained in sub-rule (1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.

Condonation of interruption in service.

(1) (a) In the absence of a specific indication to the contrary in the service book, an interruption between two spells of civil service rendered by a Government servant under Government shall be treated as automatically condoned and the pre interruption service treated as qualifying service.

Provided that-

(i) in no case the total break beyond the period of two years shall be condoned.

(ii) in each case of interruption in service the appointing authority shall issue show cause notice of 15 days duration to the respective employee and take into consideration his representation, if any. Thereafter, the appointing authority shall take decision on merit of the case whether the period of service rendered prior to interruption shall qualify for pension or not. In case the appointing authority decides that the period of service prior to the interruption shall not be counted as qualifying service for pension, then he shall be required to make an entry in the service book. Otherwise the period of service rendered prior to interruption shall be automatically counted as service qualifying for pension.

(iii) in case of participation in strike by a Government servant, the appointing authority shall issue show cause notice of 15 days to the respective employee. If after considering the representation or otherwise it is proved that the respective employee has actually participated in the strike, the entry for the period of strike shall he made in Service Book of the employee."

(b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike.

(c) The period of interruption referred to in clause (a) shall not count as qualifying service.

(2) Notwithstanding anything contained under sub rule (1), the Government may condone interruption in service of a Government servant, upon such conditions as it may think fit in each case to impose, in such a manner as may appear to it to be just and equitable.

Pension on absorption in or under a corporation, company or body

A Government servant who has been permitted to be absorbed in a service or post 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 shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him.

(For detailed orders on permanent transfer of Government servants to above bodies, see Appendix IX)."

A bare look at Rule 25(i) of the Rules of 1996 makes it clear that the resignation from a service or a post, entails forfeiture of past service. However, a safety device is provided to the employee under Sub-Rule (2) as per which, such resignation will 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, the petitioner neither applied for nor was accorded any such permission before joining the Central Government undertaking and thus, by effect of Sub-Rule (1), the resignation would entail automatic forfeiture of the petitioner''s past service.

Rule 26 of the Rules of 1996 clearly stipulates that an interruption in the service of a Government servant entails forfeiture of his past service, except for the situations provided in the sub-clauses (a) to (f) of the said Rule. It is not the case of the petitioner that he is covered by any of the situations enumerated in the clauses (a) to (f) of the Rule 26.

Rule 27 of the Rules of 1996 deals with the condonation of interruption in service. Rule 27(1)(b) clearly postulates that the automatic condonation referred to in Rule 27(1)(a) would not be admissible in case, the interruption is caused by resignation, dismissal or removal from service or for participation in a strike. Admittedly, the interruption in the case at hand was caused by the petitioner''s resignation. Thus, on a plain reading of the Rule, it is evident that the petitioner cannot claim condonation of the interruption in his service period.

Rule 33 of the Rules of 1996 is also of no help to the petitioner because it is not the petitioner''s case that he sought permission from the State to be absorbed in a service in or under the Corporation or company wholly or substantially owned or controlled by the Government. Thus also, the prayer of the petitioner for condonation of break in service cannot be accepted on the face of the record.

Consequently, the writ petition has no merits and is hereby dismissed.

No order as to costs.