IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2011 CORAM THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH Writ Petition No.5170 of 2011 K.Devan ... Petitioner Vs. The District Forest Officer Nilgiris South Division Udagai, Nilgiris District ... Respondent Writ petition has been filed under Article 226 of The Constitution of India to issue a Writ of Mandamus, to direct the respondent to pay the pension and other attendant employment benefits to the petitioner. For Petitioner : Mr.L.Dhamodaran For Respondent : Mr.M.Inbanathan Government Advocate (Forest) O R D E R The petitioner herein joined in the Government service in the year 1967. Originally, the petitioner was appointed as a Clerk on 04.07.1967. Thereafter, he was promoted as an Assistant in the year 1971. The petitioner resigned from service in the month of January 1985, which has been accepted by the respondent. The resignation of the petitioner was due to his ill-health. The petitioner made a representation on 17.06.2009, followed by a reminder, dated 12.07.2009. After receipt of the replies from the respondent dated 14.08.2009 and 09.10.2009, another representation was made on 23.11.2009. Since no orders were passed, the petitioner made a further reminder on 12.07.2010. As the petitioner's request for pension was not considered by taking into consideration the past service, the present Writ Petition has been filed seeking a Writ of Mandamus, to direct the respondent to pay pension and other attendant benefits. 2. In the counter affidavit, filed by the respondent, it has been stated that Rule 23 of the Tamil Nadu Pension Rules (hereinafter referred to as the "Rules") provides for forfeiture of service on resignation. Therefore, inasmuch as the petitioner has https://hcservices.ecourts.gov.in/hcservices/ resigned on his own, he is not entitled to take into consideration the past services rendered by him in the respondent-Office. 3. In order to appreciate the submissions made by the learned counsel on either side, it is relevant to extract the provisions contained in Rule 23 of the Rules, which reads as follows:- "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 Government where service qualifies." 4. Admittedly, the petitioner has resigned. As seen from the counter affidavit filed by the respondent, the petitioner has resigned on account of his ill-health. The petitioner did not take up any further employment nor obtained any permission from the respondent. When the petitioner has resigned due to his ill- health, the forfeiture contemplated under Rule 23 of the Rules does not have any application. A proper construction of the said Rule would be that the same is applicable only in a case where an employee concerned, is qualified to seek another appointment on his resignation. Construing the very same Rule and by applying the very same case of an employee resigned on the ground of ill-health, the Division Bench of this Court in the decision reported in 2008 (6) CTC 700 (D.Vijayarangan Vs. Secretary, Sales Tax Appellate Tribunal (Addl.Bench), Madurai, has held as follows:- "6. In the present case, we find that the petitioner proceeded on leave because of mental illness and submitted resignation letter on 2nd August, 1988. It is also not in dispute that the 1st respondent, by letters dated 9th December, 1988 and 4th May, 1989, instructed the petitioner to settle all the dues payable to the Government, and on payment of such dues, it was informed that the resignation of the petitioner was to be accepted, which was actually accepted after receipt of such dues by the State Government. Thus, it will be evident that the petitioner was allowed to resign for which permission was accorded by the State on condition of payment of its dues. It is not the case of the respondent that the petitioner wanted to resign to join service in some other organisation and there was any proceeding for misconduct initiated against him. In fact, there was no allegation made by any of the respondents against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 7. In such a situation, a question arise whether the service of an employee can be forfeited if person asks for resignation on the ground of ill- health, which is allowed by the State. Under Rule 23, a person is entitled for all benefits if he is allowed to resign for appointment in some other post under the Government. The Rule is silent with regard to resignation, if given on the grounds of illness or ill-health for which permission is granted by the competent authority. In case, if it is held that the person, who has resigned because of illness or ill-health, as at par with the class of employees, who resign for misconduct or any adverse record, and the class of employees, who resign to join other Government organisation are kept in a separate class for grant of pensionary benefits, in such case one may doubt Rule 23 violative of Article 14 vis-a-vis those who resign for illness or ill- health and is accepted by the competent authority. Therefore, we hold that those who resign because of illness or ill-health and not because of any misconduct or adverse record and are allowed to do so by the State are entitled for the same benefit which is allowed to those who resign to join another service under the State. Comparing the employees who are allowed to resign because of illness or ill- health at par with those employees who resign because of misconduct or adverse record will be otherwise violative of Article 14 of the Constitution of India. 8. We, accordingly, hold that the petitioner is entitled to all the benefits to which the employees are otherwise entitled to under the Proviso to Rule 23, i.e., those who have been allowed to resign to join some other post under the State. The respondents are, accordingly, directed to pay the petitioner the pension and gratuity with 8% interest p.a., within three months from the date of receipt/production of a copy of this order, in accordance with law, taking into consideration the years of service rendered by him with further direction to pay provident fund and other retirement benefits within one month from the date the petitioner submits appropriate application in the format prescribed by the State, failing which the petitioner will also be entitled for 8% interest on the same. The Writ Petition stands disposed of with the aforesaid observations, but there shall be no https://hcservices.ecourts.gov.in/hcservices/ order as to costs." 5. The ratio laid down by the Division Bench of this Court applies to the case on hand on all force. As discussed above, there is no dispute on the fact that the petitioner has resigned due to his ill-health. Therefore, the petitioner is entitled to succeed and accordingly, a direction is issued to the respondent to pay the pension and other attendant benefits to the petitioner by taking into consideration his past conduct/services till the date of his resignation. The respondent is directed to pass appropriate orders, on merits and in accordance with law, within a period of twelve weeks from the date of receipt of a copy of this order. When the pensionary papers are computed by the respondent in accordance with the Rules, the amount payable to the petitioner will have to be given with 6% interest per annum from the date acceptance of the resignation till the date of actual payment, as the petitioner is nowhere at fault for the non-receipt of the said amount. 6. In the light of the discussions made above, the Writ Petition is ordered accordingly. There shall be no order as to costs. smn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The District Forest Officer Nilgiris South Division Udagai, Nilgiris District + 1 cc to Mr. L. Dhamodaran, Advocate SR No.76520 + 1 cc to Spl Government Pleader (Forest) SR No.76949 SGL(CO) SR/23.12.2011 W.P.No.5170 of 2011 https://hcservices.ecourts.gov.in/hcservices/