1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4432/1996 Babu Lal Vs. Panchayat Samiti, Baran & Anr. Date of order : October 1, 2010 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Soni for the petitioner. Ms. Priyanka Pareek for the respondents. ****** This writ petition has been filed by the petitioner with the prayer that the respondents be directed to allow him to work on the post of Teacher Gr.III in compliance of the order dated 28.6.1995/30.6.1995 and 8.8.1995 and the order dated 5.1.1995 be treated to be withdrawn and the petitioner be allowed to work by giving him all consequential benefits, treating him in continuous service as if the order dated 5.1.1995 was never passed and the earlier orders referred to above, to be complied with. It is contended that petitioner after passing B.A. Examination in the year 1985 and thereafter B.Ed. Examination in the year 1986 was initially appointed as Teacher Gr.III with Panchayat Samiti, Baran by order dated 2.4.1987. The petitioner thereafter 2 appeared for regular selection against advertised post and was selected by District Establishment Committee of Zila Parishad vide order dated 8.8.1988. He was later posted as Primary School Teacher at Gajanpura, where he joined. His services were also confirmed after completion of two years of service with effect from 17.7.1987 by order dated 5.12.1990. Petitioner on 4.1.1995, filed an application seeking voluntary retirement under Rule 244(1) of the Rajasthan Service Rules under the mis-impression that he is entitled to get all the retiral benefits. The Panchayat Samiti, Baran also by misconstruing the said rule and presuming that petitioner was eligible for voluntary retirement, accepted his application vide order dated 5.1.1995 retiring the petitioner voluntarily with effect from 5.1.1995, whereas the petitioner by then had not completed 20 years of service so as to gain the eligibility of voluntary retirement and the retiral benefits in pursuance thereof. When the petitioner later came to know that he had served only for 8 years, he submitted an application seeking to withdraw the voluntary retirement 3 order on 3.3.1995. The application was forwarded to the Chief Executive Officer, Zila Parishad, Baran on 15.4.1995. The Zila Parishad by its order dated 28.6.1995/30.6.1995 directed Panchayat Samiti Baran to consider his application in accordance with the Rules of 1959. Thereafter, a meeting of the Panchayat Samiti was convened on 8.8.1995. The Panchayat Samiti by resolution withdrew the order of voluntary retirement of the petitioner, but forwarded the case of the petitioner for his posting because there was no vacant post in that Panchayat Samiti. A letter dated 8.8.1995 was sent by Panchayat Samiti to the Zila Parishad in this respect. Another letter was also sent on 29.8.1995. When the petitioner came to know that while 3 posts of Teacher Gr.III are lying vacant in Panchayat Samiti, Baran, but he was given posting in Panchayat Samiti, Baran, he served a notice for demand of justice upon the respondents and thereafter filed the present writ petition. Shri Rajendra Soni, learned counsel for the petitioner has argued that not only 4 the petitioner was ignorant of the fact that he was not entitled to voluntary retirement, but the B.D.O. of the Panchayat Samiti, Baran also acted under such misconception while accepting his application. The Zila Parishad, therefore, rightly directed the Panchayat Samiti, Baran to reconsider his matter and Panchayat Samiti, Baran accepted the same and withdrew the order accepting his voluntary retirement application, however, because of non-availability of post at Panchayat Samiti, Baran, he was not given posting in that Panchayat Samiti. His matter was referred to the Zila Parishad and Zila Parishad has not taken any action whatsoever. It is argued that during the pendency of the writ petition, the petitioner has subsequently been appointed as Teacher Grade-III on 25.3.1996, having been selected on regular basis. It was therefore prayed that the respondents should be directed to restore back the post of the petitioner in the earlier appointment with all the consequential benefits and the writ petition be allowed. Per contra Ms. Priyanka Pareek, 5 learned counsel for the respondents opposed the writ petition and submitted that petitioner resigned from service with a view to contest elections. He by adopting convenient means used the word “voluntary retirement”, while styling the application under Rule 244(1) of the Rules. The reference to that Rule was inconsequential because the letter clearly mentioned that it was a letter of resignation. The B.D.O. in his order dated 5.1.1995 also considered this letter as one of the resignation, therefore, mere reference of Rule 244(a) was of no consequence. Even after Zila Parishad directed the Panchayat Samiti and Panchayat Samiti withdrew the order, the fact remains that the petitioner was not eligible to seek voluntary retirement and once he retires from service in terms of Rule 2 and 4 of Rajasthan Service Rules forfeited all the claims with regard to previous service. If the petitioner has again been appointed on regular basis, that would be fresh appointment, not entitling the petitioner to any benefit of the past services. Upon hearing the learned counsel for 6 the parties and perusing the material on record, I find that although it is true that the word `resignation' has been mentioned in the application of the petitioner and also in the letter accepting such application by B.D.O., but then the fact also is that the B.D.O. of Panchayat Samiti could not have passed his order under Rule 244(1) of Rajasthan Service Rules. The Zila Parishad appreciated this position of rule and directed the Panchayat Samiti to reconsider the matter and in that light, the Panchayat Samiti decided to withdraw the order of acceptance. At the same time, however, another fact, which cannot be lost sight is that petitioner had resigned for the purpose of contesting elections and having lost election, he cannot reclaim that post. But then, this factor can at least justified grant of benefit of past service. Petitioner, particularly when the gap between acceptance of resignation on 5.1.1995 and reappointment on 25.3.1996 is not much, despite Panchayat Samiti having withdrawn the letter of acceptance of voluntary retirement / resignation, the petitioner was not allowed 7 to resume service, but then he can certainly claim the benefit of the earlier service towards his retiral benefits and also for the purpose of computation of pension. It would be unjust and harsh upon the petitioner if his earlier period of service from 2.4.1987 till 5.1.1995 is completely ignored. In the light of what has been discussed above, the writ petition is allowed in part. It is directed that period of service rendered by the petitioner under his earlier appointment with effect from 2.4.1987 till his fresh appointment on 25.3.1996 as Teacher Gr.III in Panchayat Samiti Baran shall be treated as qualifying service for the purpose of grant of pension. (MOHAMMAD RAFIQ), J. RS/