Madhya Pradesh High Court
The State Of Madhya Pradesh vs Harikesh Jayant on 23 January, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:3115
1 WA-2033-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 23rd OF JANUARY, 2026
WRIT APPEAL No. 2033 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
HARIKESH JAYANT
Appearance:
Shri Dharmendra Nayak- GA for the appellants/State.
Shri MPS Raghuvanshi- Senior Advocate with Shri Narrottam Sharma and Shri
Jagjeet Kumar Das - Advocates for the respondent.
ORDER
Per: Justice Ashish Shroti The appellants/State of M.P. has filed this writ appeal under Section 2(1) of M.P. Uchch Nyayalaya (Khand Nyaypeeth ko Appeal), Adhiniyam, 2005, challenging the order dated 14/5/2024 passed by learned Single Judge in W.P. No.2671/2015, whereby, the petition filed by respondent has been allowed and appellants/State has been directed to consider the past service of respondent for purposes of retiral benefits and fixation of pension. For the sake of convenience, respondent/employee hereinafter shall be referred to as 'petitioner' and appellants/State shall be referred to as "respondents" as per their respective status in writ petition.
2. Facts which are no more in dispute are that the petitioner was initially appointed as Assistant Teacher in School Education Department on Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 2 WA-2033-2025 6/7/1976 and was posted at Govt. Primary School, Kanharpura, Seonda, District Datia. The PSC issued an advertisement dated 29/7/1984 inviting applications for filling up various Class II & III posts. Being inclined to participate in exam, petitioner made an application, dated nil, to the District Education Officer, Datia seeking permission to appear in the examination for the year 1984-85 & 1985-86 (Annexure P/2). The application was forwarded with recommendation by the Headmaster of the School to DEO, Datia. From the application, dated 24.05.1986, it is gathered that the petitioner successfully participated in the exam for 1984-85 and was called to appear for interview. Further, before appearing for interview, he was asked to submit NOC from the department. The petitioner obtained NOC from the department on 11.04.1986 (Annexure P/21) and accordingly appeared for interview on 29.04.1986. The petitioner was selected for appointment on the post of Area Coordinator.
3. The petitioner was accordingly appointed on the post of Area Coordinator in Tribal Welfare Department and was posted at Satna vide order dated 9/11/1987 (Annexure P/4). The petitioner was thereafter relieved by the District Education Officer, Datia for submitting joining on the post of Area Coordinator vide letter dated 26/11/1987 (Annexure P/5) and accordingly, the petitioner submitted his joining before Collector, Satna on 27/11/1987 (Annexure P/6).
4. The petitioner had also participated in examination of 1985-86 conducted by the PSC. He was selected for appointment on the post of Naib Tehsildar vide order dated 29/2/1988. The NOC for this purpose was issued Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 3 WA-2033-2025 by DEO, Datia vide letter, dated 10.12.1986, (Annexure P/3). The last date fixed for submitting joining by selected candidates on the post of Naib Tehsildar was 31/3/1988. A copy of this order was endorsed to District Education officer, Datia with a request to relieve the petitioner. The petitioner's name finds place at serial no.48. Accordingly, the petitioner requested the Additional Commissioner, Tribal Welfare Department for his relieving vide application dated 24/3/1988 (Annexure P/7). The application was forwarded by District Coordinator to Commissioner, Tribal Welfare on 29/3/1988 with an observation that looking to the short period allowed for joining, petitioner be relieved as per law. The petitioner submitted his joining on the post of Naib Tehsildar on 31/3/1988 (Annexure P/9).
5. The petitioner was asked by the Commissioner, Tribal Welfare Department, Bhopal vide letter dated 8/5/1988 (Annexure P/17) that he should tender his resignation for submitting joining on the post of Naib Tehsildar. This letter was written in reference to the petitioner's request for relieving made vide application dated 24/3/1988. In response, the petitioner wrote to the Commissioner on 12/4/1988 (Annexure P/18) informing him that he has already tendered his resignation on 30/3/1988 and has also paid one month's salary on 12/4/1988 through bank challan. He again requested for acceptance of his resignation and for merging his earlier service with subsequent service. Alongwith the said application, petitioner also forwarded copy of bank challan whereby Rs.1,817/- was deposited by him towards one month's salary and copy of his resignation dated 30/3/1988. The petitioner's resignation was thereafter accepted by the Tribal Welfare Department.
Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:3115 4 WA-2033-2025
6.The petitioner continued to work on the post of Naib Tehsildar and got promoted to the post of Tehsildar, Deputy Collector and Additional Commissioner. He retired from service on 31/12/2013. Thus, the petitioner served with the School Education Department for the period from 10/10/1977 to 9/11/1987 (10 years 1 month 16 days) and then with the Tribal Welfare Department from 9/11/1987 to 30/3/1988 (4 month 3 days).
7. Before his retirement, petitioner made an application to the respondent/Department on 4/12/2012 (Annexure P/10) requesting for counting his services rendered from 10/10/1977 to 30/3/1988 as qualifying service for retiral dues. His application was forwarded by the Commissioner, Chambal Division, Morena to Secretary, General Administration Department, Mantralaya, Bhopal vide memo dated 4/12/2012 (Annexure P/11). The petitioner's application has been rejected vide letter dated 4/2/2014 (Annexure P/13).
8. On receiving petitioner's aforesaid request, it appears that General Administration Department sought opinion from Finance Department which opined that before submitting joining on the post of Naib Tehsildar on 31/3/1988, the petitioner was advised by Commissioner, Tribal Welfare Department vide letter dated 8/5/1988 to submit his resignation for joining on the post of Naib Tehsildar. It was opined that since petitioner was not legally relieved from the Tribal Welfare Department, his services prior to 31/3/1988 cannot be counted as qualifying service for fixing all his retiral dues. Challenging this decision of the State Govt., petitioner filed writ petition vide W.P. No.2671/2015, which has been allowed by learned Single Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 5 WA-2033-2025 Judge vide impugned order dated 14/5/2024.
9. Challenging the impugned order passed by learned writ court, the learned counsel for appellants/State submitted that the order passed in writ petition is bad in law inasmuch as under Rule 26 of M.P. Civil Services (Pension) Rules, 1976 (for short hereinafter shall be referred to as "Pension Rules"), resignation from service or post entails forfeiture of past service unless the resignation is submitted to take up with prior permission, another appointment under the State Govt. It is his submission that the petitioner did not tender resignation before taking up appointment on the post of Naib Tehsildar. He was thus not legally relieved by Tribal Welfare Department. As per his submission, the requirement of Rule 26 of Pension Rules is not satisfied and, therefore, his past service cannot be counted for fixation of his retiral dues. State has also relied upon the Apex Court decision in the case of BSES Yamuna Power Ltd. Vs. Sh. Ghanshyam Chand Sharma & Anr. reported in (2020)3 SCC 346 .
10. On the other hand, learned senior counsel for the petitioner took this Court through the documents filed alongwith petition and rejoinder, which are referred above, and submitted that the petitioner participated in the PSC examination at both occasions after obtaining permission from the District Education Officer, Datia. It is his submission that at the time, when the petitioner appeared in both the examinations, his employer was the School Education Department and the NOC was granted by the District Education Officer in relation to both the examinations.
11. Learned senior counsel further submitted that the petitioner Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 6 WA-2033-2025 tendered his resignation from the post of Area Coordinator on 30/3/1988 i.e. before submitting his joining on the post of Naib Tehsildar. Since, the time to submit joining was short, he could not wait for acceptance of his resignation. It is his submission that merely because his resignation was accepted subsequently, it cannot be said that his relieving from the Tribal Welfare Department was bad. Learned senior counsel also argued that the respondents did not raise any objection through out the service tenure of petitioner, up to the date of his retirement, regarding his relieving from Trible Welfare Department. He thus, submitted that the learned Single Judge has rightly allowed the writ petition and directed the respondents to count the petitioner's previous service right from 10/10/1977 to 30/3/1988.
12. Considered the arguments and perused the record.
13. The issue with regard to counting of past service is governed by Rule 26 of the Pension Rules, which provides as under:-
"26.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 prior permission, another appointment, whether temporary or permanent, under the State Government, where service qualifies.
[x x x] (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 the Government servant."Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 7 WA-2033-2025
14. Thus, a resignation from service or post normally entails forfeiture of past service, unless it is submitted to take up, with prior permission, another appointment under the State Govt. It is not in dispute between the parties in this case that the petitioner's service as Assistant Teacher, Area Coordinator and Naib Tehsildar are pensionable service under the State Govt. In the impugned order, the reason assigned for not counting petitioner's past service is the defect in his relieving from Tribal Welfare Department from the post of Area Coordinator. The respondents have also averred in their return, filed before writ court, that on the date of joining the post of Naib Tehsildar, there was no sanction or permission given by previous department.
15. It is not in dispute that the petitioner appeared in two examinations conducted by PSC. On both the occasions, the petitioner applied for and was granted NOC by DEO, Datia, who was his employer when petitioner participated in exams. From the averments made in return, the respondents' objection appears to be that the petitioner did not obtain permission from Tribal Welfare Department which was his employer at the time of joining on the post of Naib Tehsildar.
16. Therefore, the issue for consideration is as to whether the permission obtained by petitioner from DEO, Datia at the time of appearing in exam shall enure good for his subsequent appointment as Naib Tehsildar or he was required to obtain permission from Tribal Welfare Department also whereunder he was working on the date of joining on the post of Naib Tehsildar?
Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:3115 8 WA-2033-2025
17. Rule 26 of Pension Rules provides that resignation shall not entail forfeiture of past service if it has been submitted to take up, with prior permission, another appointment under the State Government. The requirement is of taking prior permission before appointment. The rule, however, does not specifically provide for the stage at which such permission is required to be taken. The contention of appellant's counsel is that such a permission is required to be taken after selection and before joining on the new post.
18. The Apex Court, in the case of A.P. Public Service Commission vs. B. Sarat Chandra reported in (1990)2 SCC 669 , was considering interpretation of rule which prescribed the minimum as well as maximum age for appointment as on first day of July of the year in which the selection is made. The argument was raised that year of selection should be the year in which actual appointment is made. Interpreting the term 'selection', the Apex Court held as under:
"7. The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police. Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:
"According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage."
If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 9 WA-2033-2025 list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority."
19. Thus, selection would mean the process starting with issue of advertisement and ending with issuance of final select list. When a Govt. servant intends to take up another appointment and wants his existing service to be counted in continuity with new appointment, he should obtain permission from his existing employer before participating in the selection process. Thus, the permission obtained by petitioner from DEO, Datia, for appearing in exam, shall enure good for purposes of Rule 26 when he was appointed on the post Naib Tehsildar.
20. The matter is to be examined from another angle. When the petitioner took up both the exams, he was working as Assistant Teacher and Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 10 WA-2033-2025 his employer was DEO. Therefore, there was no occasion for him to have obtained permission from Tribal Welfare Department. By the time he was selected for appointment on the post of Naib Tehsildar, he was already appointed as Area Coordinator in Tribal Welfare Department. That is how when he was to join on the post of Naib Tehsildar, he was working in Tribal Welfare Department. However, since he had already obtained permission from the existing employer on the date of exam, there was no requirement of obtaining permission again from Tribal Welfare Department.
21. Another requirement of Rule 26 is submission of resignation for taking up another employment. The petitioner has stated in the writ petition as also in his representation submitted on 04.12.2012 that he submitted resignation on 30/3/1988 and thereafter joined on the post of Naib Tehsildar on 31/3/1988. A copy of resignation, dated 30.03.1988, is filed alongwith rejoinder. There is no denial of this fact that the petitioner had submitted resignation on 30.03.1988. The objection appears to be that before acceptance of resignation, the petitioner joined on the post of Naib Tehsildar.
22. The Apex Court considered somewhat similar situation in the case o f State of Rajasthan and Ors. Vs. O.P.Gupta, reported in (2022)18 SCC
382. It was a case where the employee was initially appointed as Assistant Chargeman in Rajasthan Agriculture Engineering Board, from where, he was transferred to Rajasthan State Agro Industry Corporation. The employee was subsequently appointed as Assistant Director (Agro Industries) in the Industries Department and accordingly, he submitted his resignation from Rajasthan State Agro Industry Corporation. The resignation was not Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 11 WA-2033-2025 accepted, however, the employee concerned was allowed to work as Assistant Director in the Industry Department from where, he stood retired after reaching to the age of superannuation. The issue with regard to counting his past services, thereafter arose and dealing with the situation, the Apex Court held in para 21 to 24 as under:-
"21. The stand taken by the State is arbitrary, unreasonable and misconceived. The State is bound by the fundamental rights of its employees under Articles 14 to 16 of the Constitution of India. It is now well settled that arbitrariness violates the right to equality under Articles 14 to 16 of the Constitution of India.
22. There can be no doubt that resignation from service may entail forfeiture of past service. However, sub-rule (2) of Rule 25 of the Rules carves out an exception. The said sub-rule clarifies that a resignation with proper permission to take up another appointment, whether temporary or permanent, under the Government shall not entail forfeiture of past service.
23. At the cost of repetition, it is reiterated that the respondent was selected through the RPSC. He applied for the post of Assistant Director (Agro Industries), while he was still in service of Rajasthan State Agro Industry Corporation, which is also an entity fully controlled by the State of Rajasthan.
24. The respondent having retired after working for about 26 years, the petitioner State cannot raise the question of proof of prior permission before resignation, more so when the appointment had been made through the RPSC to a government post. It is to be deemed that there has been disclosure of past service and the application has been made through proper channel by obtaining the requisite approvals."
23. In the instant case, the petitioner stands on a better footing. He participated in the examination after obtaining permission from his earlier employer. Further, he tendered his resignation before submitting joining. However, the same was accepted subsequently. Thus, in view of the opinion Signature Not Verified Signed by: JAI PRAKASH SOLANKI Signing time: 1/28/2026 6:51:54 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:3115 12 WA-2033-2025 expressed by the Apex Court in the aforesaid case, raising of this objection after lapse of 25 years, is not sustainable. Further, since the resignation was already submitted, its subsequent acceptance would also be legal and valid and would satisfy the requirement of Rule 26 of the Pension Rules.
24. In view of the aforesaid discussion, we are of the considered opinion that learned Single Judge did not commit any mistake in allowing the writ petition and directing the State to count the petitioner's previous service for the purposes of fixation of his retiral dues.
25. Consequently, appeal fails and is accordingly dismissed.
(G. S. AHLUWALIA) (ASHISH SHROTI)
JUDGE JUDGE
JPS/-
Signature Not Verified
Signed by: JAI PRAKASH
SOLANKI
Signing time: 1/28/2026
6:51:54 PM