D. Padmini vs The Registrar General, High Court

S.J. Mukhopadhaya, J.—The above Writ Petition is preferred against the order/official memorandum, dated 23.08.2002, in ROC No.

5595/2002/ESTT.II, issued by the Sub Assistant Registrar (ESTT.) in-charge, in and by which, the petitioner has been informed that she is not

eligible for pension as per the Tamil Nadu Pension Rules, 1978 (hereinafter referred to as Pension Rules) and that, if she desires, she may submit

her application to the Government for relaxation of Rules and sanction of pension.

It appears that the petitioner joined the Madras High Court Service on 24.07.1964 as Copyist and on 23.08.1966, she was appointed as

Typist and thereafter, as Selection Grade Typist on 01.10.1978. She was promoted as Assistant on 06.04.1981.

According to the petitioner, she got married and subsequent thereto, she had to go on short leave at different times due to her ill-health, family

affairs and as her husband was working at Hyderabad. She opted for long leave on loss of pay and the Registry declined to sanction the leave and

directed her to join duty forthwith. As she could not join duty because of family circumstances, she was informed that on failure to join duty, she

may be removed from service without further notice. On receipt of petitioner''s explanation by way of letter dated 05.12.1987, the Registry, vide

Memorandum dated 14.01.1988, directed her to explain as to why disciplinary action should not be taken against her for gross disobedience of

the orders to joint duty, whereupon, she sent a letter dated 06.02.1988, requesting to go on voluntary retirement. The Registry informed that she

was not eligible for voluntary retirement as she had not put in the required minimum service and that she may seek for resignation; hence, she

submitted her resignation with a request to accept it and to pay arrears of salary, Provident Fund, Gratuity and other benefits. Since the Registry,

by letter dated 16.05.1988, instructed her to tender a separate letter of resignation without any condition, she had to submit an unconditional

resignation letter on 19.07.1988, which was accepted by the High Court vide letter dated 02.08.1988. Subsequent thereto, when the petitioner

asked for retiral benefits such as pension, gratuity etc., the respondent issued the impugned letter/official memorandum dated 23.08.2002, denying

such benefits on the ground that she is not eligible for pension as per Pension Rules and advised her to approach the State Government for

relaxation of Rules and sanction of pension.

According to the respondent, the petitioner is not eligible for pension as per Pension Rules, particularly in view of Rule-23, which prescribes

forfeiture of past service on resignation. Further, the petitioner, having not completed 20 years of qualifying service, is not entitled for voluntary

retirement, which can be permitted only to those persons who had completed 20 years of qualifying service or 50 years of age.

We have heard the learned Counsels appearing on behalf of the parties and noticed the rival contentions made in the light of the relevant Rules

and factual aspects in support of the respective claims.

The only question that arises for consideration in this Writ Petition is as to whether, in view of the resignation tendered by the petitioner having

been accepted by the respondent, she is eligible and entitled for retiral benefits like pension, gratuity etc. under the Pension Rules.

For determination of the issue, it has to be noticed whether the petitioner voluntarily resigned from service i.e., on her own volition, or on the

advice/suggestion/instruction of the respondent/employer. In that perspective, it is necessary to look at the nature of circumstances which

compelled the petitioner to resign i.e., in view of any Departmental Proceeding or due to her family circumstances. From the records, the following

facts emerge:

The petitioner entered the High Court Service as Copyist on 24.07.1964 and subsequently appointed as Typist on 23.08.1966. She was

appointed as Upper Division Grade Typist on 01.10.1978 and later she was promoted as Assistant on 06.04.1981. During the period of her

service of 12 years i.e., 23.08.1966 to 30.09.1978, she availed Earned Leave for 91 days, U.M.L. (M.L.) for 6 months and 20 days and leave on

half pay for 5 months and 3 days. Subsequently also, she availed leave from time to time. She went on leave a number of times between

30.11.1982 and 01.06.1986 and after joining duty on 02.06.1986, again she availed Earned Leave from 27.01.1987 to 13.02.1987. Again after

joining duty, she availed leave for the period from 08.07.1987 to 03.08.1987. Thereafter, she sent a letter dated 04.08.1987 from Hyderabad to

the effect that she was suffering from typhoid and requested to grant Medical Leave for the period between 04.08.1987 and 17.09.1987. She

forwarded a Medical Certificate along with the letter dated 15.09.1987.

Taking note of the aforesaid aspects and by concluding that the petitioner was irregular in attending duty, the Registry, by Official Memorandum

dated 27.11.1987, directed her, either to joint duty or to resign from the High Court Service.

The petitioner was also informed that if she fails either to join duty or send her resignation letter, she will be removed from High Court Service

without any further notice. It appears that the petitioner, facing the threat of removal from service, by her letter dated 02.02.1988, requested the

Registry to allow her to retire voluntarily and, in reply thereto, the Administrative Officer (Accounts), vide Official Memorandum, dated

29.03.1988, informed her that she is not eligible for voluntary retirement not having put in the required minimum period of service.

The reasons given by the petitioner not having been considered for grant of long leave on loss of pay coupled with the fact that she was in a way

advised by her employer to resign the job, she tendered her resignation by letter dated 25th April, 1988. While doing so, the petitioner, citing that

she had put in 15 years of service and she had to take the ultimate decision in the light of the reasons as referred to above, made a request for

settlement of her salary arrears, provident fund, gratuity and other retiral benefits.

The Registry did not choose to accept the resignation and the Administrative Officer (Accounts), by Official Memorandum, dated 16.05.1988,

informed the petitioner thus:

...she should specifically tender a separate letter of resignation, stating that she unconditionally resigns from the High Court service and that she may

be relieved from the High Court Service.

Even thereafter, no letter having been received in reply thereto, the Administrative Officer (Accounts), by way of Official Memorandum dated

05.07.1988, passed the following order:

...

Tmt. R. Padmini, Assistant, High Court, Madras, is hereby directed to submit her letter of resignation as called for in the O.M. second cited

immediately to this office.

Left with no other opinion, the petitioner had to submit her resignation from the post of Assistant with effect from the date of acceptance of

resignation vide letter dated 19.07.1988 and requested for settlement of salary arrears, G.P.F. Contribution, etc. The resignation letter of the

petitioner was accepted by the Administrative Officer (Accounts) by letter dated 02.08.1988 and she was relieved with effect from 01.08.1988.

Thereafter, she addressed the respondent for pension and other retiral benefits, for which, she was informed by Official Memorandum, dated

23.08.2002, issued by Sub Assistant Registrar (Estt.) in-charge, that she is not eligible for pension as per Pension Rules and that she may move the

State Government for relaxation of Rules and sanction of pension.

Learned Counsel for the respondent, by referring to the original file and pointing out that because of her prolonged absence from duty, charge

sheet came to be issued and despatched on 21st April, 1988, wherein, it was alleged that the petitioner had unauthorisedly absented herself from

duty without prior sanction from 04.08.1987 onwards and had also dishonoured her undertaking dated 02.06.1986 to the effect that she will not

take leave without prior sanction in future, and that she failed to join duty as directed by the High Court vide Memorandum dated 27-11-1987

even after she was informed that her application for leave on loss of pay was rejected, citing precedents to show that she was irregular in attending

duty; would submit that the prolonged absence on the part of the petitioner being unusual in nature, her further request for grant of leave on loss of

pay was rejected, which ultimately resulted in her resignation and that, in the light of the Pension Rules, in particular Rule-23, her claim for

pensionary benefits was rightly turned down. In support of his contention, learned Counsel for the respondent relied on Rule-23 of the Pension

Rules, which entails forfeiture of past service in case of resignation from a service or post.

On the other hand, learned Counsel for the petitioner, referring to Rule-5 of the said Rules, which prescribes for regulation of claims to pension

or family pension when a Government Servant retires or discharges or allowed to resign from service or dies, would submit that the petitioner is

entitled for payment of pensionary benefits under the said Rule.

For better appreciation, it is desirable to quote below the relevant portions of Rules-5, 21 and 23 of the Pension Rules:

Regulation of claims to pension or family pension--(1) Any claim to pension or family pension shall be regulated by the provisions of these rules

in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may

be.

(2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be

treated as his last working day. The date of death shall also be treated as a working day.

Forfeiture of service on dismissal or removal.--Dismissal or removal of a government servant from a service or post entails forfeiture of his past

service.

Forfeiture of service on resignation.--(1) Registration from a service of post entails forfeiture of past service:

Provided that 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.

...

Even at the outset, the argument of the counsel for the respondent is liable to be rejected, for, a reading of Rule-23 in isolation would lead to

conflict amongst the provisions contained in the Rules.

If Rule-21 is read with Rule-5, it will be quite evident that dismissal or removal of a government servant from service or post entails forfeiture of

his/her past service; therefore, such employee is not entitled for pension under Rule-5 and other Rules. The past service, for all purposes, having

been forfeited, is accounted as ''zero'' year of service and the calculation of pension/gratuity/leave encashment etc. would be ''nil''.

So far as forfeiture of service on resignation is concerned, though a provision has been made under Rule-23, from a close and conjoint reading of

Rule-5, it is evident that a person, who is allowed to resign from service, is entitled for pension.

It is settled law that a statute must be read as a whole in its context and should be construed in such a manner so as to make it effective, workable

and viable. If the meaning is plain and obvious, effect must be given in that sense irrespective of the consequences. The language of the statute

should be read as it is and normally, addition or substitution of words is not permitted. Only in case of ambiguity or difficulty to interpret the statute,

courts would look into the intention behind legislation of the statute and the object thereof, having regard to the rules of interpretation.

If the relevant Rules are read in the above context, it is apparent that not only a Government Servant, who retires or dies, is entitled to get

pension, if otherwise eligible, but also an employee, who is allowed to resign from service, is entitled to such benefits by virtue of Rule-5. Though a

plain reading of Rule-23 would give the meaning that resignation from a service or post entails forfeiture of past service as stipulated in case of

dismissal or removal from service under Rule-21, the proviso to Rule-23 makes it clear that such 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. In other words, if a person, without permission, resigns on his own volition to join some other service, forfeiture of service

is attracted under Rule-23 and similar will be the position where an employee against whom departmental/judicial proceedings are set in motion

and he, in order to avoid such proceedings, resigns from service without permission.

On the other hand, an employee, who is, for any reason, allowed to resign from service, entitled for pensionary benefits by virtue of Rule-5. For

illustration, if an employee, due to ill-health or family problems, wants to leave the service and for that, in the absence of any other rules to

retire/voluntarily retire, submits resignation which has nothing to do with any other appointment or such resignation is not the result of any

departmental proceeding having been launched against him, in that case, the employee is entitled for pensionary benefits under Rule-5.

In the present case, from the facts as detailed above, it is evident that the petitioner was irregular in attending duty; earlier, she not only availed

leave for few months but in 1987, she applied for long leave of two years on loss of pay on the ground that she got married and her husband was

posted at Hyderabad. The fact that she gave birth to a spastic child was also one of the reasons for her frequent absence from duty. By official

memorandum dated 27.11.1987, she was asked either to join duty or resign from the High Court Service.

From the letter of the petitioner dated 02.02.1988 and Official Memorandum of the High Court 29.03.1988, issued by Administrative Officer

(Accounts), it could be seen that the petitioner sought for voluntary retirement, which was not accepted she not having put in the required minimum

service. Even thereafter, she did not choose to resign the job unconditionally and, by her letter dated 25.04.1988, while tendering resignation, she

put forth a condition for settlement of arrears of salary, P.F., Gratuity etc. Interestingly, it is only the Administrative Officer (Accounts), by letter

dated 16.05.1988, asked her to submit an unconditional resignation letter and that she may be relieved from the High Court Services, pursuant to

which, by Official Memorandum dated 05.07.1988, she was directed to submit resignation as evident from the relevant portion of the said letter,

which we have quoted above, whereupon, she had to submit unconditional resignation letter on 19.07.1988, which was ultimately accepted by the

Administrative Officer (Accounts), relieving her with effect from 01.08.1988 by Official Memorandum dated 02.08.1988.

We have narrated the aforesaid facts in order to highlight the circumstances which led to her resignation. At the risk of repetition, we add that,

followed by her request for leave on loss of pay for two years, which was not accepted and when she was directed/instructed by her employer to

resign, she tendered resignation and it was accepted. Thus, the petitioner having been allowed to retire from service, it follows that her case is not

covered by Rule-23 of Pension Rules but by Rule-5 thereof and thereby she is entitled for pension if she had completed the requisite period of

service.

While dealing with this matter, we have come across certain aspects which we desire to mention here so that the respondent/Registry will take

note of the same and strictly adhere to the tenets that are required to be followed.

A. When procedure is prescribed in the Rules to proceed against an errant employee by initiating Departmental Proceedings, conducting enquiry

and inflicting punishment on the charges having been proved, it is not fair on the part of the employer/Registry to implicitly advise/instruct its

employee to resign the job when it finds that such employee has indulged in acts of irregularity. If the Registry was so serious on the conduct of the

petitioner that she intentionally remained absent to avoid attending duty, it should have departmentally proceeded against the employee and

ultimately decided the issue either way, based on the outcome of such proceedings. But, the way in which the matter has been handled in the case

of the petitioner is rather a deviation from the established principles and procedure.

B. Under Article 229 of the Constitution of India, appointments of officers and servants of a High Court shall be made by the Chief Justice of the

Court or such other Judge or officer of the Court as he may direct subject to the Rule, if any, framed by the State. In exercise of the powers

conferred by Articles 229(1) and (2) of the Constitution of India, the Madras High Court Service Rules have been framed, which govern and

regulate the method of recruitment, the conditions of service, the salaries and allowances, leave and pensions of the Madras High Court service. It

appears from the said Rules that the power for appointment of ''Assistants''/''Typists''/''Copyists'', coming under Division-II vests with the Registrar

General, of course, with the proviso that the Registrar General and the Deputy Registrar shall exercise their powers of appointment subject to the

control and approval of the Chief Justice. In the matter of termination, removal etc. of an employee, power is also vested with the officer in higher

rank than the one who was authorised to make appointment. In the present case, though question in that regard has not been raised, we find,

almost all the official memorandums were issued by the Administrative Officer (Accounts) including the one dated 02.08.1988, whereby, the

petitioner''s resignation from services of the High Court was accepted and she was relieved. It is not clear to us as to how the Administrative

Officer (Accounts) had passed such orders when he had not been shown as the appointing authority or empowered to do so under the Madras

High Court Service Rules. However, as the same is not under challenge, we do not want to deliberate on that issue except to highlight here so that

the Registry may take notice of the same and see that such aspect will not recur in future. If any communication is issued on the orders of the

Hon''ble the Chief Justice or by the order of the Court or the Registrar General of the High Court or by the order of an authorised officer of the

Court under the Rules, at least, the same should be reflected in the order.

C. For the purpose of pension, of course, the State Government''s Rule is applicable, but it is the Chief Justice of the High Court or any other

Judge or authorised Officer has the power to sanction pension if an employee of the High Court is eligible and entitled for such pensionary benefits.

Further, as the power to sanction pension etc., including relaxation of Rule, is vested with the appointing authority/sanctioning authority i.e., the

Hon''ble the Chief Justice, the High Court should not have abdicated its power by stating in the Official Memorandum dated 18.04.2000 that the

employee of the High Court/petitioner may file application before Government for such relaxation as the State Government is not the appointing

authority of High Court employees. In future, the Registry should keep this aspect in mind before issuing any such letter/official memorandum as it

would amount to abdicating the powers of the Hon''ble the Chief Justice in favour of some other authority/State Government/Central Government.

In view of our foregoing discussion, we set aside the impugned order, in R.O.C. No. 5595/2002/Estt.11, dated 23.08.2002, of Sub Assistant

Registrar (Estt.) in-charge, and remit the case to the Registry to take steps for grant of pension and other retiral benefits for which the petitioner is

entitled to in accordance with Pension Rules and the Madras High Court Service Rules. The past service of the petitioner should not be treated to

have been forfeited though it will be open for the competent authority of the Registry to treat the period of absence from 04.08.1987 onwards as

leave without salary. The benefit to which the petitioner is entitled to shall be paid within a period of two months from the date of

receipt/production of copy of this order, failing which, the petitioner is entitled for interest at the rate of 5% on such dues with effect from

03.12.2002 i.e., from the date of filing of the Writ Petition.

Let a copy of this order be communicated to the Registrar General, Madras High Court, to follow the rules and guidelines as adverted to by us and

for compliance of our order.

Writ Petition is allowed with the aforesaid observations and direction. There shall be no order as to costs.