Document Fragment View

Matching Fragments

2. Briefly stating, the facts of the case are that while working as Senior Engineer with Indian Railways, the respondent had applied to his competent authority for a No Objection Certificate to be issued to appear in an interview for employment in RITES Ltd. (hereinafter referred to as „RITES‟) on 20.08.2004. The application for NOC was not decided till 06.09.2004 which was the date fixed for holding the interview by RITES, accordingly without waiting for the orders to be passed by the petitioners the respondent participated in the interview by taking a casual leave. Later on, the application of the petitioner for issuance of NOC was rejected vide order dated 10.09.2004. In the meanwhile, the respondent, who was selected by RITES submitted his resignation which was accepted by the petitioners vide order dated 01.12.2004.

4. Aforesaid pleas were also taken by the petitioners before the Tribunal but the same did not find favour with the Tribunal as reflected in the impugned order dated 14.08.2008, allowing the Original Application. The relevant paragraphs of the impugned order passed by the Tribunal are reproduced for the sake of reference:-

10. On careful consideration of the rival contentions of the parties and on perusal of the records, rules are clear.

In order to be granted on resignation benefit of past service as per Rule 41 of the Pension Rules, resignation if tendered with a view to take up with proper permission another appointment shall qualify the service as qualifying for grant of pension if one joins either on permanent absorption or direct recruitment in Government of Indias Undertaking or Corporation in the instant case the applicant has admittedly not sought prior permission or had also not applied through proper channel for the post of Manager (Civil Design) in RITES, his subsequent conduct of seeking permission before interview when refused NOC, it cannot be said that applicant has applied for the post through proper channel. However, when applicant tendered his resignation he has clearly mentioned that he is resigning from the post to join RITES Ltd. a letter written to the General Manager (P) by the CEO on 3.11.2004 has clearly mentioned that applicant had applied for the post directly in RITES Ltd. and has moved technical resignation to join RITES Ltd. Accordingly, the resignation was accepted on the basis of the Note put up by CEO on 3.11.2004. However, the aforesaid order does not show that the resignation being technical, would not entail forfeiture of past service, as per Rule 41 (2). The contention put-forth by the applicant that for pro rata pension to the government servants on joining public sector undertakings as per CAG circular dated 20.1.2004 the conditions are only 10 years of qualifying service and holding of a permanent post but this 10 years of qualifying service would have to be viewed in the context of valid qualifying service in case appointment to public undertaking is sought without proper channel and when NOC is rejected, there has to be forfeiture of past service.

12. Rule 106 of the Pension Rules in case of doubt in interpretation of the rules, Department of Pension and Pensioners Welfare is to be consulted. Though CAG circular would have no direct applicability in the present case, but as I find that applicant though ineligible, as per his qualification for the post notified by the RITES, yet when applied had sought for NOC before the process was over at the time of interview, which was delayed and by the time selection process was over permission was refused. The service rendered by the applicant with the Railways was terminated on the side of the applicant with a valid permission to take up employment. The only impediment of applying for direct recruitment through proper channel may not be there but the valid requirement of resigning the service on acceptance thereof, taking cognizance of joining RITES by the competent authority, undue hardship has certainly been caused to the applicant and as per Rule 107 of the Railway Pension Rules, in such an event in consultation with DoP&T and Department of Pension and Pensioners Welfare, one has to be redeemed from hardship.

11. In the aforesaid circular, there is no mention that the beneficiary should apply with prior approval of the parent department.

12. In view of the aforesaid the issue as to whether the petitioner applied through proper channel or not becomes irrelevant.

13. The Tribunal has dealt with Rule 41 in para 10 of the impugned order (supra) and has observed that the said Rule provides that resignation shall not lead to forfeiture of past service, if it has been submitted to take up the employment with proper permission. Since the resignation tendered by the respondent was accepted, merely because his request for NOC to appear for an interview was rejected subsequent to holding of interview, signifies the acceptance of the petitioners regarding joining of services in RITES by the petitioner and in a way waives off the requirement of forwarding of the application formally through them.