IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 2121/2011 Date of decision: 08. 12. 2011 Smt. Nirmala Devi wife of late Shri Baldev Krishan Awasthi, resident of Sarvari Bazaar, Kullu, District Kullu, H.P. …..Petitioner Versus 1. State of H.P. through the Secretary (Forests) to the Government of H.P. Shimla -2. 2. The Principal Chief Conservator of Forests, Himachal Pradesh, Talland, Shimla -1. 3. The Conservator of Forests, Kullu, H.P. 4. The Divisional Forest Officer, Kullu Forest Division, Kullu,-1. 5. The Accountant General (A&E), Himachal Pradesh, Shimla-3. …..Respondents. Civil writ petition under Article 226 of the Constitution of India for issuance of appropriate writ, order or directions to the respondents and for the relief prayed for herein below. __________________________________________________ Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Petitioner: Mr. H.K. Paul, Advocate. For the respondents: Mr. P.M. Negi Deputy. Advocate General, for respondents No. 1 to 4. Mr. Ravinder Thakur, C.G.C, for respondent No. 5. Surinder Singh, J (Oral) Petitioner claims herself to be the widow of Shri Baldev Krishan Awasthi, forest Guard who 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - submitted his resignation on 24.10.1995 which was accepted on 07.11.1985 by the D.F.O. vide Annexure P2. Thereafter, he died on 26.4.2007. 2. In the year 2011, petitioner, by means of present petition, claimed family pension on the ground that the resignation of her husband was wrongly accepted and despite notice Annexure P4 dated 26.4.2010 to the respondents, it was not granted to her to which she was entitled. Thus, a writ of mandamus is prayed to be issued for granting her the family pension, with arrears gratuity and other retiral benefits to which her husband was entitled. 3. As a matter of fact, said Shri Baldev Krishan Awasthi was appointed as a Timber-Watcher w.e.f. 6.10.1967 in the Forest Department of H.P. vide Annexure R3 dated 24.2.1980. His case along with other similar situated persons was recommended by the Conservator of Forests, Kullu to the D.F.O. Kullu, for their appointment as Forest Gurad. 4. Vide Annexure R4 a formal appointment letter was issued by the D.F.O. being the appointing Authority. The appointment was temporary up to 29.2.1980 but was likely to continue subject to the allotment of posts. - 3 - 5. Vide letter dated 24.10.1985 Annexure P1 said Shri Baldev Krishan Awasthi submitted his resignation to the Divisional Forest Officer Kullu through Range Office, Naggar and on the same day, it was forwarded to the D.F.O. Kullu which was accepted on 7.11.1985 (Annexure P2). 6. Respondents contended that there is no provision for grant of pension/family pension in the CCS (Pension) Rules, 1972 where the Government servant has resigned from the post. Reference is made to Rule 26 (1) of the CCS (Pension) Rules, 1972 which reads as under:- “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” 7. Shri H.K. Paul, learned counsel for the petitioner made two fold submissions firstly, that the D.F.O. was not competent to accept the resignation because the appointing Authority in the instant case was the Conservator of Forest, secondly, the husband of the petitioner had served the respondents department for 18 years and was entitled to claim pension under Rules 49 and 50 of the CCS (Pension), Rules, 1972. Since the petitioner - 4 - was not issued notice while accepting his resignation to the effect that he would not get any gratuity or pension, therefore, the office order dated 7.11.1985 (Annexure P2) is wrong and illegal. To buttress his arguments, he put his reliance on the apex Court judgment in Dayal Saran Sanan versus Union of India and others 1980 (1) SLR 507 and Abhimanyoo Ram versus State of Uttar Pradesh and another (2008) 17 SCC 73 and also Government of India’s decision below Rule 29. 8. So far as first point is concerned, the record reveals that appointment of the petitioner as forest guard was made by the D.F.O. vide letter Annexure P2 a statutory authority under the R & P Rules for the purpose. The letter Annexure R3 dated 24.2.1980 by the Conservator of Forests is nothing but a request made to D.F.O. to issue appointment orders with respect to the petitioner and other similarly situated persons. Thus Annexure R3 aforesaid cannot assume the character of any appointment letter in any way. Therefore, the argument on this point deserves to be rejected. 9. So far as the second point is concerned, the resignation Annexure P1 was submitted by the petitioner on 24.10.1985 to the D.F.O. through the - 5 - Range Officer which was forwarded to the D.F.O. who accepted it vide Annexure P2 on 7.11.1985. Said Shri Baldev Krishan Awasthi never withdrew the said resignation nor he ever agitated it till his death in the year 2007. After about two years of his death, the petitioner challenged the order of resignation passed in the year 1985, i.e., after 24 years. Further, Government of India’s decision below Rule 29 (2) is not applicable to the fact situation nor the judgments of the apex Court referred to (supra) are applicable in the present case. Since the consequence of resignation is a forfeiture of service on resignation under Rule 26 (1) of the CCS (Pension) Rules, 1972 therefore, the relief sought for by the petitioner cannot be granted. As such the petition is dismissed so also the pending application(s) if any. December 8, 2011 (Surinder Singh), (cm) Judge