Central Administrative Tribunal - Allahabad
Rakesh Kumar Singh vs General Manager, N E Rly on 3 March, 2020
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. 330/00822 of 2017
Dated: This the 3rd day of March 2020
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Rakesh Kumar Singh aged about 58 years, S/o Late Sriniwas Singh, R/o
Shivpujan Kunj, Mohaddipur, Gorakhpur.
.. . . Applicant
By Adv: Shri Sanjay Kumar Om
VERSUS
1. Union of India through General Manager, N.E Railway, Gorakhpur
273012.
2. The General Manager (P), N.E. Railway, Gorakhpur.
3. Dy. Chief Engineer, Gorakhpur Region, N.E. Railway, Gorakhpur.
4. The Chief Personnel Officer, N.E. Railway, Gorakhpur.
. . .Respondents.
By Adv: Shri C.K. Rai/Shri A.K. Rai
ORDER
1. The present O.A. has been filed by applicant Rakesh Kumar Singh under section 19 of Administrative Tribunal Act, 1985 seeking the following reliefs:-
"A. To issue a writ order or direction in the nature of certiorari quashing the order dated 4/5.1.2017 passed by respondents (Annexure -1 to Compilation No.I). B. To issue a further writ order or direction in the nature of mandamus commanding the respondents to consider the entire period of applicant's service since 9.2.1982 upto 11.9.1996 (14 years, 2 months & 8 days) for the purposes of pension and thereby grant pension to the applicant in terms of Rule 1993 along with interest and other consequential benefits thereupon.2
C. To grant any other relief for which the applicant is entitled for in the circumstances of the case. D. To award the cost of the present OA in favour of the applicant".
2. Case of applicant Sri R.K. Singh is that he had resigned from service vide application dated 17.10.1993, which was accepted on 20.10.1993, however, within statutory period of 90 days as per Rule 14
(iii), he filed application dated 5.1.1994 for withdrawal of his resignation. The applicant joined his duty on 16.3.1994 (Annexure - 4) and thereafter he again submitted his resignation on 11.9.1996, which has been accepted on 13.09.1996. It has been further averred that the respondents have taken the plea in the impugned order dated 4/5.1.2017 that looking to the resignation of the applicant, the entire service of applicant would be forfeited for the purposes of grant of pension in terms of Rule 14 (IX) and Rule 41 (1) of the Railway Services (Pension) Rules 1993. Challenging the stance of the respondents, applicant has averred that there is no difference in the words 'resignation and voluntary retirement' and therefore, applicant is entitled to a pension since he has a qualifying service of minimum 10 years required for grant of pension. It is a case of applicant that the view of the respondents is that in the wake of withdrawal of his resignation, the joining of applicant for duty on 16.3.1994 would be treated as a fresh appointment and accordingly his previous service prior to retirement would be forfeited for the purpose of grant of retiral benefits.
3. In the counter affidavit, the stand of the respondents is as per the following paragraphs No:-
"(29) That the contents of paragraph 4.20 of the original application not admitted as stated, hence denied. In reply thereto it is submitted that suitable reply had already been given in the preceding paragraph No. 4.11. It is further submitted that the applicant resigned on 20.10.1993 & withdrew his resignation on 05.01.1994 and again resigned on 11.09.1996. As per Rule 14 (ix) and Rule 41 (1) resignation by a Railway servant from service unless it is allowed to the 3 withdrawn in the public interest by the appointing authority shall lead to forfeiture of his past service. Due to resignation from railway service past service of the applicant forfeited & he is not entitled for pension.
30. That the contents of paragraph 4.21 of the original application are not admitted as stated, hence denied. In reply thereto it is submitted that as per Rule 41 (6) of Railway Service Pension Rule, 1993 the period between withdrawing resignation & resume duty (period of interruption) shall not count as qualifying service. Lastly the applicant resigned from Railway service due to this, past service of applicant was forfeited as per Railway Service (Pension) Rule, 1993.
31. That the contents of paragraph 4.22 of the original application are not admitted as stated, hence denied. In reply thereto it is submitted that as per Rule 14 (ix) and 41 (1) if Railway Service Pension Rule 1993, on resignation from service, the whole period of past service shall be forfeited, as per said rule the whole service period from 09.02.1982 to 13.09.1996 forfeited, because the applicant resigned from Railway Service".
4. It would be pertinent to note the relevant portion of the impugned order (Annexure 1) rejecting the claim of applicant for grant of pension as below:-
"2.
(IX) & 41 (1) "4
5. I have heard and considered the arguments of learned counsel for the parties and gone through the material on record. Learned counsel for the parties during the course of argument reiterated the plea taken by them in their respective pleadings.
6. Rule 14 (IX) and Rule 41 (1) of the Railway Services (Pension) Rules 1993 read as under:-
"14 (ix) resignation from service save as indicated under Rule 41.
41 (1) Forfeiture of service on resignation - (1) Resignation by a railway servant from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority shall lead to forfeiture of his past service".
7. Looking to the aforementioned quoted portion of impugned order dated 4/5.1.2017, the respondents have taken the view that the service of the applicant prior to his first resignation of 1993 stands forfeited and that applicant has a service of 2 years 05 months 27 days to his credit i.e. from the date of his joining the duty on 16.03.1994 after his first resignation was allowed to be withdrawn till his second resignation of 1996.
8. The present case, respondents are relying on Rule 14 (IX) to deny the pension to the applicant. Undoubtedly the said Rule covers period which shall not be treated as service for pensionary benefits and which includes resignation from service. However, the said Rule has a saving clause, which indicates that period of employment in any of following capacity shall not constitute service for pensionary benefits save as indicated under Rule 41. Rule 41 lays down that resignation from the service unless it is allowed to withdrawn in public interest by the appointing authority shall lead to forfeiture of past service. In the instant case, the respondents department allowed the applicant to withdraw his resignation within the period of 90 days as permissible under Rule 41 (4) (iii). As a consequence of allowing the applicant to withdraw his resignation, the applicant joined his duties on 16.3.1994. Therefore, inescapable conclusion is that once the respondents, in the present case, allowed the resignation by the applicant to be 5 withdrawn within the time frame of 90 days, it shall not lead to forfeiture of his past service.
9. In this regard, I may refer to order dated 10.04.2013 in O.A. No. 1619 of 2012 titled Amar Singh Vs. State of NCT of Delhi passed by CAT Principal Bench, New Delhi as under:-
"A comprehensive reading of the entire pension scheme under the CCS (Pension) Rules, 1972 clearly establishes, it is a beneficial legislation and hence Rule 26 requires a liberal interpretation, so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the Rule. As observed above, the object of Rule 26 is to provide the benefit of past service to those who take up another employment under the Government, after resigning to the earlier service or post even before completing the qualifying service, for fixation of pay and pension in the new post or service, but not to deprive pension to those who were allowed to resign unconditionally, after rendering the qualifying service of 10 years. That is why, the Rules, though provided for granting of pension, even to a person, who was compulsorily retired by way of penalty under Rule 40, or to a person who was dismissed or removed from service in the form of Compassionate Allowance but not provided any such power to the Competent Authority under Rule 26(1), in respect of a person who resigned on his own volition, after rendering qualifying service of 10 years. Definitely, it was not the intention and object of the Rules, to put a tainted employee who was imposed with a punishment of compulsory retirement or dismissal or removal for his proven misconduct above an employee who was allowed to resign from service unconditionally after rendering the required qualifying service of 10 years. Therefore, the respondents cannot deny the pension and other benefits under the CCS (Pension) Rules, 1972 to the applicant, by applying Rule 26(1), in isolation".
10. In these circumstances and looking to the facts of the case, it is to be held that allowing the applicant to withdraw his first resignation 6 dated 17.10.1993 and consequently permitting him to withdraw his resignation and his joining of duty on 16.03.1994 would not lead to forfeiture of his service from 1982 to 1994. Therefore, the impugned order dated 4/5.01.2017 (Annexure No.1) is set aside and quashed and respondents are directed to consider the case of applicant for granting pension and other benefits, if any, without reference to Rule 14 (IX) and 41 (1) of Railway Service (Pension) Rules 1993 and pass appropriate order and pay the pension with arrears along with interest at GPF rate within 03 months from the date of receipt of this order. O.A. is accordingly allowed. No order as to costs.
(RAKESH SAGAR JAIN) Member (J) Manish/-