r%. H-f- O.A. Nfe._, B3FORE THE^SIATE ADMINISTRATIWJTRIBUNAL, JABAiKIB- P-Ca-A^sv-l-^ Applicant Vy^i^h. 'V^-f/T ^^-, Satyadev Rai -^/v ff / Retired Sub Inspecfor (Radio), Village Katsari, Post Office Kadipur, Distt. Sultanpur (U.P)o Vs Respondents State of Madhya Pradesh Throygh Secretary» Min-istry of Horae Affairs, Vallabh Bhawan, Bhopal (M.P)o 2« Senior Superintendent of Police (Radio), M.Po, Bhopal (M.P). 3e Superintendent of Police (Radio) Zone Bilaspur, Distt. Bilaspur (M.P). 4o Joint Director, Accounts & Pension, Bilaspur (M.P)o ORIGINAL APPLICATION UNDER SECTION 19 OF IHE ADMINISTRATri?E TRIBUNALS ACI, 1985 s^:^^KN^^ISI%^^^^^I^^^^S S^^MSSs%f%%;^%^^8@s®l^fsM^S HIGHCOURTOFCHHATTISGARHATBILASPUR SINGLE BENCH : HON'BLE MR. SATiSH K. AGNIHOTRI. J. Petitioner Respondents WRIT PETiTIGN (S.) N0.25 OF 2006 SatyadevRai versus Stats of Madhya Pradesh (now Chhattisgarh) and others Present : Mr.V.S.Tiwan.counselforthepetitioner. Mr. V.V.S.Moorthy, Deputy Advocate General with Mrs. Anju Ahuja, Deputy Government Advocate for the respondents/State. :th QRDER (Passed on 15'" Day of December, 2006) The petitioner was employed as Constable on 20-12- 1957. The petitioner voluntarily resigned from the post which was accepted with effect from 1-3-1968. Thereafter.aftera break of about three years, the petitioner was appointed afresh provisionally on temporary basis by order dated 2-2-1971 (AnnexureA-1). The petitioner thereafter was promoted on the post of Sub-lnspector (Radio) and retired fromservjceon 31-5-1994 on attaining the age of superannuation. 2. This petition is by way of transfer from the State Administrative Tribynai, wherein the application wasfiled in December, 1999 and the same was numbered as Qriginal Appiication No.986 of 1999. On dissolution of the State Administrative Tribunal, this original application was transferred to this Courtand re-numbered as Writ Petition(S^No.25of2006. 3. Thepetitionerhasfiledthispetitionclaimingpensionon the basis of Rule 26 of the Madhya Pradesh/Chhattisgarh Civil Services (E}ension) Rules (henceforth 'the Pension Rules') thatthe period before 2-2-1971 be also counted fot grant of pension. Rule 26 ofthe Pension Rules reads as under :- "26. Forfeitureof service on resignation. - (1) Resignation frbm 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 prior permission, another appointment, whether temporary or permanent, under the State Government, where service qualifies. Explanatton. - When resignation from a service or post.other than resignation covered bythe proviSo to the above sub-rule is submitted and accepted or deemed to have been aceepted, the pastservice is forfeited and such a person does not remain entitted to any leave; If he is reappointed.his appointment shal! be treated as fresh appointment for all purposes. The period of service prior to resignation may, however, be allowed to count for pension only by condonation of interruption.if the conditions in rule 28 are fulfilted. Grant ofany kind of leave for the period of interruption is not proper and no attempt should be made to review the K;: Seni'ice prior to resignation by grant of any kind of leave forthe period of interruption. (2) Interruption in seroice in a case falling under the provision to sub-rule (1), due to the two appointments being at different stations, nbt exceeding the joining time permissible under the rules oftransfer.shali be covered by grantof leave of any kind due to the Government servant on the date of relief or by formal condonation to the extentto wHich the period is not covered by leave due to the Government servant." 4. Explanation to Rule 26of the Pension Ruies provides for forfeiture the period of service prior to resignation to be counted for pensjon only bycondonation of interruption if the conditions in Ruie 28 are fulfilled. Relevant provisionsof Rule 28 ofthe Pension Rutes read as under:- "28. Condonation of interruptions in service. (1) The Departments of Government in consultation withthe Finance Departmentmay, by drder, condone interruptions in the seroice of a Governmentservant: Provided that - (i) the interruptions have been eaused by reasons beyond the control of the Government servant; (ii) the total service excluding one or more interruptions, ifany, is not less than five years duration; and ^v^-'/S.^&S^'^ the interruption, including two or more interruptions, if any, dpes not exceedone year. (2) Theperiod ofinterruption condonedunder sub-rule (1) shall noteountas quatifying service.'\ Rule 28 of the Pension Rules provides that the department concemed in consultation with the Finance Department may, by order, condone interruptions in the sen/ice of a 'Government seroant provided that the interruptions have been caused by reasons beypnd the control of the Government servant, the total sen/ice excluding one or more interruptions, if any, is not tess than five years duration, and the interruption, including hn/p or mpre interruptions, if any, does not exceed oneyear. 5. Learned counsel appearing for the respondents/State submits that the explanationto Rule 26 of the Pension Rules has been deleted and Rule 28 ofthePension Rules has beensubstituted by new rule. The explanation to Rule 26 of the Pension Rules was deleted by amendment notification No.38with effectfrom 20-10-1995and Rule 28 of the Pension Rules was modified by amendment notification No.29 with effect from 1-12-19^. The cause of action in this petition arose priorto the amendment of the rules. Thus, the present amendecl Rule 26 of the Pension Rules and the substituted Rule 28 of the Pension Rules would not be applicable tothepresent case. 6. Admittedly.in the present case, the conditions pTescribed in Rule 28 6f the Pension Rules, i.e., the interruptions caused Jiy / [ !t;l t'^A' ^®£m^^^e^?l ws^s(iS^i^iSS^.\ ^^'c^S^SSSS^: <.'^K&?;3-'^r^S?;?w;iS?^-1 reasons beyond the control of the Government servant is not availabie to the petitjoner. Eyen otherwise.it is not a mandatory clause, it is directory. .<E^ c: 7. Learned counsel appearing for the respondents/State submits thatthe interruption in service has not been condoned bythe State Government as prescribed under Rule 28 ofthe PensionRules. In absence of condonationof interruption.as prescribed under Rule 28 of the Pension Rules, the petitionercannot take advantage of Ruie 26 ofthe Pension Rulesfor reckoning the prior service ofthe petitionerfor the purpose 6f the pension. 8. For the reasons aforemenfioned, this petition is dismissed.No orderastocosts. __^-. Sd/- Sadsh K.Agnihotri Judge