Meghalaya High Court
Shri K.P. Mohanta vs . State Of Meghalaya & Ors on 5 December, 2019
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
Serial No.01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.318/2014
Date of Order: 05.12.2019
Shri K.P. Mohanta Vs. State of Meghalaya & ors
Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Appearance:
For the Petitioner/Appellant(s) : Mr. A Khan, Adv with
Mr. SA Sheikh, Adv
For the Respondent(s) : Mr. R Gurung, GA
Mrs. PD Bujarbaruah, Sr.Adv with Ms. B Ghosh, Adv for R/4
i) Whether approved for reporting in Yes Law journals etc.:
ii) Whether approved for publication in press: Yes/No
1. This writ petition has been filed by Mr. K.P. Mohanta under Article 226 of the Constitution of India, inter alia, with the prayer that the order dated 25.02.2014 issued by the respondents be quashed and set aside and a writ of mandamus be issued directing them to release payment of full gratuity to the petitioner for the period of service rendered by him with the respondent No.4-College.
2. The facts of the case are that the petitioner joined the services with respondent No.4-College as Lecturer Philosophy on 06.07.1984 and he was confirmed in that post vide order dated 09.09.1986. Thereafter, he was placed in the senior scale/selection grade in November 1997. The petitioner was then placed in the senior/selection grade of the Revised UGC Scale, 1996 vide order dated 14.12.2001. Case of the petitioner is that while serving in the respondent No.4 he wrote to the Principal of the College 1 (respondent No.4) on 04.05.2009 informing that he has agreed and accepted to join the Central University of Jharkhand as Deputy Registrar and requested for granting him leave/lien. The Governing Body of respondent No.4-College passed the resolution dated 04.05.2009 and conveyed to the petitioner vide letter dated 05.05.2009 that he has been released from duty of the College w.e.f. 10.05.2009 to enable him to join as Deputy Registrar in the Central University of Jharkhand, Ranchi. Copy of the resolution of the Governing Body dated 04.05.2009 was also enclosed therein.
3. The respondent No.4-College vide letter dated 08.07.2009 requested the Director of Higher and Technical Education, Government of Meghalaya, Shillong to grant lien to the petitioner for a period of one year to join in the University of Jharkhand as Deputy Registrar, who vide order dated 30.07.2009 gave no objection for granting of lien (without pay) to the petitioner for a period of one year w.e.f. 10.05.2009, to join as Deputy Registrar in the Central University of Jharkhand, Ranchi. The Central University of Jharkhand vide order dated 17.03.2010 appointed the petitioner as Deputy Registrar. Subsequently, the petitioner vide application dated 24.03.2010 requested the respondent No.4-College for extension of his lien for two more years. The respondent No.4-College, however, vide letter dated 24.03.2010 informed the petitioner that the extension of lien for a period of two years could be granted provided he accepted the terms and conditions, namely, lien period could be counted for the purpose of seniority and increment but no salary will be payable by the College for the period; the College must be informed one month before the expiry of his lien with the intention to rejoin duties; he could rejoin at any point of time 2 if no one is appointed in his vacancy; any overdraw of salary will be refunded to the College; increments will be applicable as per the eligibility in connection with his service in the College; if the Government does not approve grant of lien, he (petitioner) should reach the College within one month of such information and finally the period of two years of extension of lien would begin w.e.f. 10.05.2010.
4. It was thereafter that the petitioner vide letter dated 10.04.2012 addressed to the respondent No.4-College requested termination of his lien w.e.f. 10.05.2012 as Deputy Registrar, Central University of Jharkhand and also prayed for releasing his gratuity, Contribution Provident Fund [CPF] along with other benefits. The petitioner submitted an application to the respondent No.4-College on 10.09.2012 that his letter dated 10.04.2012 may be treated as technical resignation. The respondent No.4-College forwarded the application of the petitioner to the Director of Higher and Technical Education, Government of Meghalaya, Shillong along with the undertaking letter for final withdrawal of CPF. The respondent No.4-
College vide letter dated 19.08.2013 forwarded the application of the petitioner to the Director of Higher and Technical Education, Government of Meghalaya, Shillong for payment of gratuity, who vide letter dated 25.02.2014 conveyed that as per the Meghalaya Aided College Employees Death-cum-Retirement Gratuity Scheme, 1985 [for short the Scheme of 1985] an employee who resign from service on his own volition is not eligible to be befitted of the said scheme. The respondent No.4-College thereupon communicated to the petitioner vide letter dated 28.02.2014 regarding the decision of the Government. It is against the backdrop of 3 these facts that the petitioner has approached this Court by means of filing the present writ petition.
5. Mr. A Khan, learned counsel appearing for the petitioner has argued that in fact, the petitioner vide letter dated 10.05.2012 specifically requested the respondent No.4-College that his earlier letter dated 10.05.2012 may be treated as technical resignation. Therefore, the petitioner has not resigned simpliciter from service but on termination of lien from respondent No.4-College which is an Autonomous Body when he was permanently absorbed in Central University of Jharkhand on transfer basis. The petitioner would therefore be eligible for all retirement benefits which have been granted to him partially but his retirement gratuity has been denied. Learned counsel has referred to Clause of the Meghalaya Government Aided College Death-cum-Retirement Scheme, 1985 [for short the Scheme of 1985] and argued that Clause 7 is not applicable to the petitioner therefore he would be entitled for payment of retirement/terminal gratuity. The respondents vide letters dated 25.02.2014 and 28.02.2014 categorically denied to grant benefit of the said Scheme to the petitioner by treating his case that he has resigned on his own volition. Reliance is placed on the Circular dated 07.02.1986 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Pension and Pensioners' Welfare to all the Chief Secretaries of the States including the State of Meghalaya stating that there is a reciprocal arrangement with various State Governments to the effect that the employees of the State Government/State Autonomous Body/State Statuaries Body who have been absorbed in Central Autonomous Bodies, 4 may be allowed to count their past service towards pension under the Central Autonomous Body where they are presently working.
6. Learned counsel argued that the extension of various benefits like counting of service etc. will be governed by DoP & AR OM No.28/10/1984. It is also argued that the terms and conditions of permanent absorption of Central Government employees in the State Autonomous Bodies under the control of the State Government will be regulated by GOI DoP&PW OM No.4(12) 85-P.&P.W., dated 31.03.1987 read with DoP&T OM No.28016/5/85-Estt. (C), dated 31.01.1986. The respondent No.4- College vide letter dated 03.05.2013 informed the Central University of Jharkhand that the entire expenditure of the College is borne by the Government of Meghalaya through grant-in-aid, therefore, the respondent No.4-College is an Autonomous Body. Reliance is placed on Clause 4(i) of the Office Memorandum issued by the Government of India DoP&PW dated 07.02.1986 to show that resignation from Government service with a view to secure employment in a Central Public Enterprise with proper permission will not entail forfeiture of the past service for the purpose of retirement/terminal benefits. Since the petitioner has secured employment with the Central University of Jharkhand, which is a Central Autonomous Body, with proper permission from the parent organization i.e. respondent No.4, which is a State Autonomous Body, his technical resignation with a view to secure employment in Central Autonomous Body shall not entail forfeiture of his past service with respondent No.4-College for the purpose of retiral benefits. Reliance is also placed on para 2 (ii) of the GOI DoP&PWOM No.-28/30/2004-P&PW (B) dated 26.07.2005 which 5 provides that employees, who entered into service on or before 31.12.2003, were governed by CPF Scheme or any pension scheme of Central or State Government other than the Central Civil Services (Pension) Rules, 1972 [for short CCS (Pension) Rules, 1972] on submission of technical resignation to take up new appointments after 01.01.2004, cannot be allowed to join the old pension scheme under CCS (Pension) Rules, 1972.
7. Learned counsel in support of his arguments has relied upon the judgment of Kerala High Court in the case of Ramesh C.V. v. Director of Agriculture decided on 26.06.2014 and the judgment of the Punjab & Haryana High Court in the case of Manohar Lal Kakkar, Principal (Retired) v. State of Punjab & ors decided on 05.12.1997.
8. Per contra, Mrs. PD Bujarbaruah, learned Senior Counsel appearing for respondent No.4 submitted that the petitioner did not apply for appointment as Deputy Registrar in the Central University of Jharkhand through proper channel. In fact, the petitioner submitted such application directly to the Central University of Jharkhand. Only subsequent to the receiving offer of appointment, the petitioner requested respondent No.4- College vide letter dated 04.05.2009 informing him that he has accepted and agreed to join in the Central University of Jharkhand as Deputy Registrar and also requested for granting leave/lien. On such request, release order was issued on 05.05.2009 by the respondent No.4-College allowing the petitioner to join the appointment as Deputy Registrar in the University of Jharkhand on lien for one year w.e.f. 10.05.2009. Since the petitioner has applied on his own and not through proper channel, upon his permanent absorption with the Central University of Jharkhand, the 6 subsequent letter written by the petitioner dated 10.04.2012 requesting the respondent No.4-College to release his gratuity and CPF, cannot be treated as technical resignation. It is much belated and after thought that the petitioner vide letter dated 10.05.2012 requested respondent No.4-College for treating this letter as technical resignation.
9. Learned counsel in support of her arguments has relied upon the judgment of Central Administrative Tribunal, Hyderabad in the case of D. Srihari v. The Senior Superintendent of Post decided on 07.08.2007.
10. I have given my anxious consideration to the rival submissions and the material placed on record. The sole question that arises for consideration in this case is whether the petitioner can be held to have joined the services in the Central University of Jharkhand by submitting technical resignation or by resigning simpliciter. The Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) vide Office Memorandum dated 27.08.2018 has issued master Circular on technical resignation and lien in Central Services. Clause 1 of the said Circular would throw light as to what is meant by technical resignation. Clause 1 reads as under:-
"TECHNICAL RESIGNATION
1. As per the Ministry of Finance O.M. No.3379-E.III (B)/65 dated the 17th June 1965, the resignation is treated as a technical formality where a Government servant had applied through proper channel for a post in the same or some other Department, and is on selection, required to resign from the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government servant has not mentioned the word "Technical" while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases. Resignation in other cases including where competent authority has not allowed the Government servant to forward the application through proper channel will not be treated as a technical 7 resignation and benefit of past service will not be admissible. Also, no question of benefit of a resignation being treated as a technical arises in case of it being from a post held on adhoc basis."
11. Even in the judgment relied upon by the petitioner in Ramesh C.V. case (supra), the petitioner [in that case] was released from the services of the Rubber Board for joining his duty as Agricultural Officer on the permission granted by the Chairman of the Board, it was held that the rigor of this specific prescription that in such application for employment to any outside organization shall only be made through proper channel stands satisfied and therefore, denial of pro-rata pensionary benefits is based on extraneous and irrelevant consideration. But in that very judgment, the Court had noted the conditions of service of the employees of the Rubber Board, in respect of matters for which no provision is made in those Rules, are governed for the time being by the rules applicable to the other officers of the Government of India by virtue of Rule 12 of the Rubber Board (Service) Rules, 1961. It was in this context that the High Court of Kerala has referred to Rule 26 of the CCS (Pension) Rules, 1972 which, inter alia, provides as under:-
"R.26. Forfeiture of service on resignation.- (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, 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."
12. It is clearly evident that the High Court of Kerala has taken note of the specific prescription about the conditions incorporated in sub-Rule (2) of Rule 26 that a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, whether 8 temporary or permanent, another appointment under the Government. But the High Court of Kerala held that Rule 26(2) supra stood complied because the petitioner in that case had applied for appointment with another organization with proper permission. The ratio of that case does not apply to the facts of the present case. Here the petitioner had directly submitted his application to the Central University of Jharkhand. Only when he received the first offer through email on 04.05.2009 from Professor Darlando Khathing, Vice Chancellor, Central University of Jharkhand, he wrote to the respondent No.4-College on 04.05.2009 that he has accepted and agreed to join in the Central University of Jharkhand as Deputy Registrar. Thereafter, he requested for granting of leave/lien for one year. Subsequently, the Governing Body of respondent No.4-College agreed to the request of the petitioner and the matter was forwarded to the Government for granting lien. The Government issued the no objection on 30.07.2008 for granting lien to the petitioner w.e.f. 10.05.2009.
13. It is trite that technical resignation is treated as a technical formality where the employee concern had applied through proper channel for a post in the same or some other organization and is on selection, required to resign from the previous post for administrative reasons. Such resignation, even if the word technical has not been mentioned therein, has to be treated technical provided the employee concerned has applied for appointment on another post with another organization through proper channel, Rule 26 (2) of the CCS (Pension) Rules, 1972 provides that "if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government 9 where service qualifies". Similar provision exists in Rule 23(2) of the Meghalaya Civil Services (Pension) Rules, 1983 [for short the Rules of 1983] which is in pari materia with Rule 26(2) of the CCS (Pension) Rules, 1972. Rule 23(2) of the Rules of 1983 reads as under:-
"23(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."
14. The stand of the respondents that the petitioner has submitted his resignation on his own volition is fully substantiated from the facts of the case. Clause 7 (d) of the Scheme of 1985 provides that no gratuity shall be admissible to an employee who resigns his service of his own volition. No case is therefore made out for issuance of writ of mandamus as prayed for.
15. In view of the above discussions, there being no merit, this writ petition is dismissed with no order as to costs.
(Mohammad Rafiq) Chief Justice Meghalaya 05.12.2019 "Lam AR-PS"
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