SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.2997/1995 Om Prakash versus Union of India and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Sh. R.K. Singhal, for the petiioner. Mr.R.Dave, for the respondents. DATE OF JUDGMENT : 18th November, 2008. JUDGMENT 1. Heard the learned counsels for the parties. 2. By this writ petition, the petitioner has challenged the order dtd.25.2.1995 whereby the respondents allowed him to join back his duties within 30 days allowing withdrawal of his application for voluntary retirement after decision of this Court on 14.9.1993. However, the period lapsed in between 1st March, 1991 to 30th April, SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 2/7 1995 was directed to be not treated as qualifying service for the purpose of service benefit including pay and allowances in terms of Sub-Rule (6) of Rule 26 of the CCS (Pension) Rules, 1972. The said Rule is quoted below for ready reference : “26. Forfeiture of Service on Resignation (1)........... (2).......... (3).......... (4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely: (i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation; (ii) that during the period intervening between the date on which the resignation became effective and the SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 3/7 date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper; (iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days; (iv) that the post which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available. (5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government. SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 4/7 (6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.” 3. The learned counsel for the petitioner Mr. Singhal submits that in terms of Clause 4(iii) of Rule 26, if the petitioner was allowed to assume duties within 90 days as stipulated in the said Rule, then such interruption in service for period less than 90 days could not be counted as qualifying service in terms of Sub-Rule (6). However, since the period in the present case exceeded 90 days and it was for a period of 4 years and two months from 1.3.1991 to 30.4.1995, therefore, the said period should be treated as qualifying service and the petitioner would be entitled to consequential benefits including pay and allowances. 4. The petitioner submitted his application seeking retirement on 1.2.1991 which was accepted by the competent authority on 28.2.1991. However, the petitioner applied for withdrawal of his resignation on 30.3.1991 which was not allowed and therefore, the SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 5/7 petitioner had to approach this Court by way of writ petition No.4263/1992 which was decided on 14.9.1993 directing the respondents to consider the case of the petitioner for withdrawal of resignation. Accordingly the order dtd.25.2.1995 was passed by the said authority i.e. S.E. (Civil), Commander reinstating the petitioner in service in the rank of Superintendent, B/R Grade II and the petitioner accordingly joined the duties on 30.4.1995. The said order clearly stipulates that the said period lapsing between 1.3.1991 till the date of his physically reporting for duty at the unit i.e. 30.4.1995 would not be counted as qualifying service for the purpose of service benefits including pay and allowances in terms of Sub-Rule 6 of Rule 26 of CCS (Pension) Rules, 1972. 6. The contention of the learned counsel is opposed by the learned counsel for the respondents who submits that the petitioner cannot be allowed the benefit of Sub-rule 6 merely because the period of interruption or break in service exceeded 90 days. 7. I have heard the learned counsels and considered the rival submissions made at the Bar. SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 6/7 8. In the opinion of this Court, Sub Rule (6) of Rule 26 quoted above cannot be interpreted in the manner as canvassed by the learned counsel for the petitioner. If the period of break in service or interruption exceeds 90 days as stipulated in Sub-Rule 4(iii) of Rule 26, it does not mean that for rest of the period, over and above 90 days, the petitioner should be deemed to have been in service or actually worked. The fact remains that the petitioner did not work for entire period from 1.3.1991 till 30.4.1995. There is no question of allowing any pay and allowance or benefit of continuous service for the said period, although the petitioner had to approach this Court for directing the respondents to consider the case of the petitioner for withdrawal of resignation and upon such directions only, the respondents re-considered the issue and allows the petitioner to withdraw his resignation reinstating him in service by impugned order dtd.25.2.1995. As far as part of said order that the said period of interruption between 1.3.1991 to 30.4.1995 shall not be counted for qualifying service for the purpose of service benefits including pay and allowances in terms of Sub-rule (6) of Rule 26 is concerned, no error is found in the same and said portion of the order is also in consonance with harmonious reading of Sub-rule (4) and Sub-rule SBCWP NO.2997/1995– OM PRAKASH V/S UNION OF INDIA ANDORS.. : JUDGMENT DTD. 18.11.2008 7/7 (6) of Rule 26. Consequently, this writ petition is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.8 Ss/-