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Judgment
The petitioner was appointed as a Clerk in the Revenue Department by Deputy Commissioner, Udhampur, on 681965. He was promoted to
the post of Stenographer after some time and then posted with Deputy Commissioner, Poonch. He served in the Revenue Department upto the
year, 1970 when his services were transferred to Irrigation and Flood Control Department on 17th of November, 1970. From 1970 to 1975, the
petitioner served in the Irrigation and Flood Control department, Jammu and remained attached with Superintending Engineer PWD Udhampur
subsequently upto August 1978. In August, 1978 petitioner was deputed to Salal Hydroelectric Project, Jyotipuram (Reasi) which is a Central
Government Undertaking Project. The petitioner served in the said Project upto January, 1982. The petitioner was then recalled back in the
Irrigation and Flood Control department. Again by an order No.PW118 of 1984 dated 14.2.1984 the services of the petitioner alongwith various
other employees were transferred on deputation basis for a period of two years to Dulhasti Hydroelectric Project, where he continued on
deputation upto 30.11.1991. On 11.6.1991, the National Hydroelectric Project invited applications from eligible candidates for the post of Private
Secretary in the National Hydroelectric Power Corporation Ltd. (NHPC). Petitioner being eligible applied for the said post. Selection was made
and a letter was addressed to the petitioner by Executive Director Regional NHPC, Jammu informing him that he had been selected against the
said post. Since, the NHPC was interested in employing the services of the petitioner on permanent basis, he was required to get himself relieved
from the parent department, therefore, he submitted his resignation on 24.2.1992. Annexure ""P/6"" to the writ petition is the letter of resignation
submitted by the petitioner. It reads, as under:
The CommissionercumSecretary,
Public Works Department,
J&K Government, Civil Sectt.,
Jammu(J&K).
Sir,
Consequent upon my absorption in NHPC with effect from 1st. December, 1991. I hereby submit my technical resignation from the post of
PA(Sr. Scale Stenographer) from J&K Irriagtion and PC Department, Jammu with effect from 30th November, 1991.
Thanking You Sir,
The Government passed an order on 971992 which reads, as under:
Consequent upon his permanent absorption in Power Transmission Corporation Limited the resignation tendered by Shri Dharam Singh Sr.Scale
Stenographer from the Irrigation & Flood 'Control Department, Jammu is accepted w.e.f. 1.12.1991(AN).
By order of the Government of J&K.
The case of the petitioner now before this Court is that the resignation which he had submitted for getting himself permanently absorbed in
NHPC was infact a letter of voluntary retirement from service. He had a qualifying service of more than 20 years to his credit at the time he
tendered his resignation, and therefore, the petitioner was entitled to all the pensionery benefits from the parent department. Petitioner submits that
he made various representations on 4.11.1992,19.11.1992, 19.1.1993,11.2.1993. 2.3.1993 and 28.9.1993 in this regard that his resignation be
treated as voluntary retirement and his case be processed for monthly pension and he be given all the post pensionary benefits. He also submitted
in his representations that he had put in more than 26 years of service with the Government of J&K, and he was qualified for voluntary retirement,
by putting in twenty years of service. He further submitted that he had been absorbed permanently in NHPC only after he had obtained permission
from the Government. He further submits that as the Government did not decide his aforesaid representations, therefore, he was forced to
approach this Court through the medium of present writ petition.
The controversy which needs to be decided in this case is whether the resignation tendered by the petitioner on his absorption in the Central
Government Corporation has to be treated as a letter of voluntary retirement or as a voluntary resignation. The respondents have filed their
objections, stating there in that the petitioner's case was not a case of voluntary retirement, and therefore, he was not entitled to any pension or
post pensionary benefits. It has also been submitted that the petitioner submitted his resignation w.e.f. 30.11.1991 (AN) and it was accepted by
the Government on 9.7.1992. It has further been stated that had the intention of the petitioner been to seek voluntary retirement, what stopped him
from making such a request when he tendered his resignation. Had he applied for voluntary retirement, it was for the Government to decide
whether to relieve the petitioner on superannuation or not? But since he resigned from the service, therefore, the Government took a view to
accept his resignation; may be on the ground that no benefits would have to be granted to the petitioner. It has further been stated that after
tendering the resignation, the petitioner made a representation submitting there in that his resignation be treates as voluntary retirement from service.
This request was examined by the Government, and the Government came to the conclusion that once an option had been exercised by the
petitioner, it cannot be allowed to be changed. The petitioner has placed reliance on Articles 1850(111) CSR, which reads as under:
1850(111) (1) Notwithstanding anything contained in Art. 185D(l) where a permanent Government servant while on deputation is permanently
absorbed in public interest and with the prior permission from his present Department in a Public Sector Undertaking/Autonomous Body which
does not have a pension scheme, such a Government servant, has an option to be exercised by him within six months of his absorption for either of
the alternative indicated below:
(a) Receiving a monthly pension and gratuity;
(b) Receiving a gratuity and a lump sum amount in lieu of pension worked out with reference to commutation table obtaining on the date from
which the pension could be disbursable;.......
From persual of the said Article, it appears that within six months of permanent absorption in a Public Sector Undertaking, a person so
absorbed has to exercise his option either to receive a monthly pension and gratuity or a lump sum amount in lieu of pension worked out in
accordance with rules. This Article applies to those person who are absorbed on a request of the Public Sector Undertaking, when the same is
made in Public interest. The present case is altogether a different case, wherein applications were invited by the NHPC from all eligible candidates.
It was not the case of the Corporation that they needed the services of the petitioner in public interest. They only needed the services of a well
qualified person as Private Secretary, for which they invited the applications from eligible candidates. The petitioner applied for the said post and
was selected. At that time, he had the option to request the State Government to retire him prematurely. But instead, he resigned from the State
Service perhaps on the ground that he thought that better opportunities of service were available to him in the Corporation. After getting his
resignation accepted, the petitioner has turned round and wants that his resignation letter be treated as a request for his voluntary retirement.
From bare perusal of the Rule mentioned above, it becomes very much clear that the employees of the State who are absorbed in Public Sector
Undertaking permanently, are entitled to certain benefits like pension and gratuity; provided the absorption are made in public interest. Since, it is
not the case of the petitioner that he was absorbed in the Corporation in public interest, therefore, his resignation has to be treated as a resignation
simplicitor and nothing else. Learned counsel for the petitioner has placed reliance on a judgement of the Supreme Court in case titled Welfare
Association Central Government Employees V/s Union of India reported in AIR 1996 SC 1201. The facts of said case are altogether different
than the facts of the present case. In the case before the Supreme Court, the petitioners were Central Government employees. The Central
Government sometime back had decided to start Public Sector Undertaking. To start with, the Government of India sent some of its
officers/officials on deputation to some Public Sector Undertakings. It was felt that services of the Officers with sufficient experience and skill were
needed for the Public Sector Enterprises, therefore, the Central Government devised measures to induct willing officers to continue in the Public
Sector Enterprises. Such officers were allowed to be absorbed in such Public Sector Undertaking subsequently. The Government offered to deem
their retirement as retirement in ""Public interest"". Consequent to their absorption in the Public Sector Undertaking, they were offered retirement
benefits. The Rules laid down in the Central Civil Services Pension Rules are almost similar to the Rules laid down in Jammu and Kashmir Civil
Service Regulations, but even if one goes to the core of the judgement of the Supreme Court (supra) it becomes clear that a resignation by a
Government servant from the Government service for absorption in a Public Sector Undertaking in public interest, only entitles such Government
servant to retirement benefits. As has been stated hereinabove, the Corporation had advertised the posts, and by selection the petitioner had been
appointed in the Corporation. It was a fresh appointment made on the basis of a selection and not absorption of the petitioner in public interest.
Therefore, I am of the view that the petitioner's resignation from Government service was a resignation simplicitor, which would give him no
benefits for the service rendered by him to the State. In his rejoinder, the petitioner has annexed a copy of Govt. order NO. 412GAD of 1994
dated 2741994 pertaining to one Shri D.V. Khosla Senior Assistant . The petitioner submits that he was also absorbed in the NHPC, but he was
given the retirement benefits. From persual of the said order, it appear that although Shri Khosla had resigned from Government service, but his
resignation was treated as voluntary retirement. He was given pensionary benefits in terms of Article 1850(111) of the Jammu and Kashmir Civil
Service Regulations. It is now well settled proposition that if Government commits one wrong, this Court cannot ask it to repeat the same. In any
case, Mr. Khosla's order has neither been challenged nor is he a party in the present proceedings. In my view,"" Mr. Khosla could not also have
been given the pensionary benefits, which have been given to him after he had tendered his resignation, and his absorption in the NHPC was not
also made in public interest.
For the aforesaid reasons, I do not find any merit in this petition, which is dismissed accordingly.