Past Service Not Forfeited For Calculation Of Pensionary Benefits If Subsequent Govt Job Is Taken With Permission From Competent Authority: Madras HC

Justice SM Subramaniam was considering a petition challenging the order of the Director, Directorate of Rural Development and Panchayat Raj, and subsequent order of the District Collector, Dindigul District rejecting the claim of the petitioner for computing the past service rendered by him for pensionary and other monetary benefits. The petition also sought for allowing the petitioner to continue in the Old Pension Scheme (CPS) and to issue a general provident fund number.

Facts:

The petitioner was working as Assistant Executive Engineer in Rural Development and Panchayat Raj Department. He served as Junior Drafting Officer in Tamil Nadu Water Supply and Drainage Board (TWAD) from 1993 to 2007 during which he appeared in the selection process for recruitment to the post of Assistant Engineer conducted by the Tamil Nadu Public Service Commission.

After selection and appointment to the Assistant Engineer post, he resigned from the post of Junior Drafting Officer and relieved himself from the TWAD Board. The petitioner submitted that he had already taken permission from the TWAD Board to participate in the selection process.

The grievance of the petitioner was that his service period as Junior Drafting officer in TWAD from 1993 to 2007 was not considered for the qualifying service period for grant of pensionary benefits. An application in this regard was rejected by the Directorate of Rural Development and Panchayat Raj stating that he had resigned the post in TWAD Board and that the account for provident fund was separately maintained by the Board and therefore the request of the petitioner could not be considered.

The petitioner relied on Rule 23 of the Tamil Nadu Pension Rules, 1978. The Rule states as under:

23. Forfeiture of service on resignation. - (1) Resignation from a service or 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.
(2) Interruption in service in a case falling under the proviso to sub-rule (1) 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 die Government servant.

The petitioner emphasized the proviso to Rule 23(1) which specifically provides that whenever the resignation is for another appointment for which proper permission has also been taken.

The petitioner submitted that the Competent Authority- Executive Engineer of TWAD Board, had granted him permission vide proceedings dated 05.01.2007. When permission was granted by the TWAD Board and pursuant to it, the petitioner resigned his post to join the Rural Development and Panchayat Raj Department, it shall not entail forfeiture of past service.

The court agreed with the submission of the petitioner and was satisfied that the petitioner had obtained proper permission as contemplated under the Rules. The Board was aware that the petitioner had obtained permission and participated in the process of selection. Therefore, the resignation cannot be considered as an independent resignation and it is to be considered as consequential to the permission granted by the TWAD Board. Thus, it would not attract forfeiture of services under Rule 23, but falls under proviso to Rule 23(1) of the Rules.