WP/11161/10 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.11161 OF 2010 Smt. Rekha Ashok Joshi, Age 59 years, occ. household R/o 20-B, Mahabal Colony, Jalgaon. ..Petitioner VERSUS 1. The State of Maharashtra Through the Secretary for Rural Development Department, Mantralaya, Mumbai. 2.The Divisional Commissioner, Nashik Division, Nashik. 3.The Chief Executive Officer, Zilla Parishad, Jalgaon. ..Respondents ... Advocate for Petitioner : Shri Sonawane N.D. h/f Shri Hon V.D. AGP for Respondents 1 & 2 : Shri Godbharale V.D. Advocate for Respondent 3 : Shri Sharma Vijay ... CORAM : D.B.BHOSALE & S.B.DESHMUKH, JJ. Dated: June 29, 2011 ORAL JUDGMENT : (PER D.B.BHOSALE,J.):- 1. Heard learned counsel for the parties. 2. Rule. By consent, Rule made returnable forthwith. WP/11161/10 2 3. The Petitioner, in this Writ Petition under Article 226 of the Constitution of India, has challenged the communication dated 27.10.2010 issued by respondent 3 - Chief Executive Officer, Zilla Parishad, Jalgaon, whereby he communicated to the petitioner that her past service cannot be taken into account for the purposes of pensionary benefits. 4. The petitioner was appointed by the Zilla Parishad, Jalgaon on 5.7.1989 as Peon on compassionate ground. Thereafter by the order dated 27.1.1993 she was appointed as Senior Assistant by the Zilla Parishad, as a nominee of freedom fighter. She, thereafter, tendered resignation on 1.2.1993 of the post of Peon. We have perused the resignation letter, wherein she had made it clear that she was resigning in view of her appointment as Senior Assistant as a nominee of the freedom fighter. Her father was freedom fighter. The resignation was accepted by respondent 3 - the Chief Executive Officer vide order dated 17.2.1993 with effect from 1.2.1993. It is against this backdrop, the petitioner placed heavy reliance upon sub-rule (2) of Rule 46 of the Maharashtra Civil Services (Pension) Rules 1982 (for short, "the said Rules") to contend that her past service as a Peon, for the period from 5.7.1989 to 31.12.2008, needs to be taken into consideration for extending pensionary benefits to her. WP/11161/10 3 4. As against this, respondent 3, in their reply affidavit dated 5.2.2011 has stated that since the petitioner had resigned from the post of Peon and her appointment as Senior Assistant was a fresh appointment as a nominee of the freedom fighter, she is not entitled for the benefit of earlier service for the purposes of pension as provided for in Rule 46(1) of the said Rules. 5. Rule 46 reads thus : " 46. Forfeiture of service on resignation. - (1) Resignation from a service or a post entails or forfeiture of past service. (2) 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 the Government where service qualifies." 6. From bare perusal of sub-rule (2) it is clear that the 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 the Government. Learned counsel for respondent 3 vehemently submitted that permission, as contemplated by this provision, was obtained by the petitioner for taking another appointment under Zilla Parishad. 7. We have perused the registration letter tendered by WP/11161/10 4 the petitioner dated 1.2.1993. In the said letter, the petitioner had made specific reference to her appointment as Senior Assistant as a nominee of the freedom fighter and in view thereof, she sought permission to resign from the post of Peon. The resignation letter is addressed to respondent 3 - the Chief Executive Officer. Respondent 3 vide his order dated 17.2.1993 accepted the resignation with effect from 1.2.1993 knowing fully well that the petitioner had been appointed as Senior Assistant, being a a nominee of the freedom fighter and that she joined as Senior Assistant on 1.2.1993 itself. The appointing authority to the post of Senior Assistant, is also respondent No.3 - Chief Executive Officer, Zilla Parishad, Jalgaon. In view thereof and in view of the contents of the resignation letter/ reason for resignation, in our opinion, acceptance of the resignation by the Chief Executive Officer would amount to deemed permission as contemplated by sub-rule (2) of Rule 46 of the said Rules. In other words, in view of the fact that the petitioner had clearly mentioned in her resignation letter that since she had joined as Senior Assistant being a nominee of her father - freedom fighter and that the appointing authority for the said post accepted the said resignation, he deemed to have granted permission to take the appointment as Senior Assistant and, therefore, she is covered by sub-rule (2) of Rule 46 of the said Rules. WP/11161/10 5 8. In the circumstances, the impugned order dated 27.10.2010 is set aside. Writ Petition is allowed in terms of prayer clause (C). Rule made absolute accordingly. No costs. (S.B.DESHMUKH,J.) (D.B.BHOSALE,J.) ... akl