IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8869 of 2003 1. Chitranjan Jha. 2. Manoranjan Jha Both sons of late Umakant Jha, residents of Village – Shirnia, P S – Parvatta, now Gogri, District – Khagaria. Versus 1. THE STATE OF BIHAR. 2. The Commissioner and Secretary, Primary Education Department, Government of Bihar, Patna. 3. The Director, Primary Education, Bihar, Patna. 4. The Additional Secretary and Incharge (Pension Cell), Finance Department, Government of Bihar, Patna. 5. The Under Secretary to the Government, Secondary, Primary and Adult Education Department, Government of Bihar, Patna. 6. The Accountant General, Bihar, Birchand Patel Path, Patna. 7. The Senior Accounts Officer, Office of the Accountant General, Birchand Patel Path, Patna. 8. The District Superintendent of Education, Munger. 9. The District Superintendent of Education, Khagaria. ----------- For the petitioners: Mr. Gyanand Roy. For the State: Mrs. Nilu Agrawal, G.A. 10 and Mr. Zaki Haider, AC to GA 10. For the AG : Mr. Sanjay Kumar. ----------- 11. 09/04/2009 By virtue of letter No. 578 dated 10.6.2003 issued by the Senior Accounts Officer of Accountant General, Bihar (Annexure-1), the claim for pension made by the original petitioner Umakant Jha (hereinafter referred to as the petitioner), who had admittedly tendered resignation with effect from 7.5.1977 stands rejected. Petitioner challenged the said decision and wanted a direction upon the respondents to grant him pension and gratuity. Petitioner also wanted declaration that his application for resignation should be treated as an application for voluntary retirement and respondents be directed to pay all the benefits of a superannuated employee. 2. Some basic facts are not in dispute. According to the - 2 - pleadings in the writ application petitioner was initially appointed as a teacher in Middle School, Shirania on 1.4.1949. The School in question was located in erstwhile district of Munger and now falls in the jurisdiction of Khagaria district. The said school was supposedly taken over by the State Government with effect from 1.1.1971. Subsequently the State of Bihar also decided to extend the benefit of pension and other retiral dues for teachers of taken over schools with effect from 1.4.1976. 3. Some time in the month of June 1976 petitioner stood transferred from the Middle School, Shirania to Middle School, Gangaur which was about 35 kms from the present place of posting. On 17.6.1976 petitioner wrote to the District Superintendent of Education, Munger stating that his health did not permit him to serve at the transferred place of posting and he requested for cancellation of the transfer order vide annexure 2 to the writ application. Petitioner stood relieved from the school on 6.7.1976 for joining at the transferred place of posting. Since the petitioner did not choose to join the transferred place he decided to go on leave from 8.7.1976 to 15.8.1976. On 12.8.1976 he filed yet another application seeking extension of leave till 15.9.1976. He kept extending his leave by various applications till 15.5.1977. Ultimately he decided to tender his resignation vide his application dated 7.5.1977 contained in Annexure-5. The resignation was accepted from 7.5.1977 itself. Petitioner contends that the letter of resignation also stated that petitioner’s leave for one year should be - 3 - granted and regularized. He should also be paid pension and gratuity. It is further stated in the writ application that on 9.6.1978 the service book of the petitioner along with his pension papers were forwarded to the Director, Primary Education, Government of Bihar for appropriate decision and direction on the issue. The communication in question is annexure-7 to the writ application. The matter was returned to the District Superintendent of Education for taking an appropriate decision in accordance with law. The District Superintendent of Education in terms of the direction of the State Government forwarded the service book and pension papers of the petitioner to the Accountant General, Bihar on which certain clarification and queries were made by the Accountant General. This was so because service book categorically recorded that the petitioner had voluntarily tendered his resignation and the same was accepted by the then District Superintendent of Education. 4. All the details demanded by the office of the Accountant General came to be furnished. The matter was examined and the Senior Accounts Officer returned the service book and pension papers stating that since it is a case of resignation from service, payment of pension is not admissible in accordance with the Rule 101(a) of the Bihar Pension Rules. 5. Petitioner was not satisfied with such a stand of the respondent Accountant General, therefore, he decided to file writ application namely, CWJC No. 696 of 2003. The writ application was disposed of on 3.4.2003 giving liberty to the petitioner to - 4 - submit an appropriate representation before the Additional Secretary and Incharge of Pension Cell in Finance Department who was directed to consider his claim and pass a reasoned order. The order of the High Court in question is Annexure-12 to the writ application. 6. Petitioner filed his representation with a copy of the High Court’s order . After due deliberations it seems that pension papers and service book of the petitioner was again forwarded to the Accountant General, by the District Superintendent of Education for taking an appropriate decision. The Office of the Accountant General came to pass the order dated 10.6.2003 contained in annexure-1 rejecting the claim of the petitioner on the ground that since the case of the petitioner was one of resignation he was not entitled to payment of pension and gratuity in terms of Rule 101 (a) of the Bihar Pension Rules. It is in this background that the present application has been filed and annexure 1 has been challenged. 7. The primary contention of the petitioner is that ananexure-1 in question is an illegal and arbitrary order and has been passed on wrong assumption of facts and irrelevant extraneous consideration. Since the petitioner’s letter dated 7.5.1977 (Annexure-5) was a letter seeking voluntary retirement from service and not a resignation letter, the same should not be treated as a case of voluntary resignation but one of voluntary retirement. This is so because the petitioner had demanded pension, gratuity and sanction of leave by way of annexure-5. In other words, it was a conditional letter. It is also the stand of the petitioner that the word Tyagpatra - 5 - was inadvertently written in place of Akchhik sewa nibriti. Additional contention on behalf of the petitioner is that acceptance of resignation letter by the District Superintendent of Education, Munger (annexure-6) has no meaning and significance. 8. Learned counsel for the petitioner also relies on a decision rendered in the case of Dr. (Smt) Shahida Hasan v. State of Bihar & ors, 2004 (1) PLJR 318 and has laid emphasis on para 13 of the said decision where it has been held that resignation simpliciter will not come in the way of pension. 9. A counter affidavit came to be filed by the respondent District Superintendent of Education of Khagaria in the writ application in opposition to the prayer and relief demanded by the petitioner. They have justified the decision of the Accountant General in the given facts of the case. They have stated that the resignation of the petitioner is a voluntary resignation and the same having been accepted and acted upon many many years ago, it is not open to the petitioner now to embark on legal jugglery and demand benefit to which he was entitled to under the pension rules. 10. Rule 101 (a) of the Bihar Pension Rules is reproduced below for ready reference since that is the foundational rule on which petitioner’s claim has been denied: “101 (a) : Resignation of the public service or dismissal or removal from it for misconduct , insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.” - 6 - 11. Respondents have also taken stand that they wanted to fairly consider the case of the petitioner and it was in this light that various exercise and communications were made at various levels but the hands of the respondents were tied on the issue because no benefit can accrue to an employee who decided to tender his resignation with due intent because petitioner was determined not to join the transferred post and he went on leave extended over a year and then finally decided to resign instead of joining the transferred post. It is not open to him to now wriggle out of the situation which was his own creation. This fact and aspect has been told to the petitioner many a times. That was the considered opinion of all the authorities who were directed to consider the matter in terms of the direction of the High Court passed in CWJC No. 696 of 2003 and there is no element of surprise in so far as the decision taken and communication to the petitioner by the Office of the Accountant General contained in Annexzure-1. 12. The Court has carefully gone through the letter of resignation of the petitioner which is annexure-5 to the writ application. The language and intent of the said letter is unambiguous and categorical. Even according to the pleadings and the facts narrated therein the intention of the petitioner was clear that he was willing to resign from the post rather than go and join his placed of posting on transfer. His health could have been the reason why he did not want to leave the original place of posting but then it was a decision taken by the petitioner which was acted upon by the - 7 - respondents and the matter came to rest in the year 1977. Merely because the petitioner had claimed he should be paid his pension and gratuity , it does not mean that the letter of resignation was conditional not voluntary and should be treated as a case of voluntary retirement. The interpretation which has sought to be given by the counsel for the petitioner cannot be accepted by the Court because that will be reading more into the letter of resignation than what it had stated. Since the object and intent of the petitioner was clear with regard to resignation and the same stands confirmed by the order accepting the resignation by the respondents immediately thereafter as per his request , the Court comes to a considered opinion that the matter with regard to claim of pension should be allowed to rest and no amount of legal jugglery or repeated filing of the writ applications can beget the petitioner pension which the Pension Rules do not provide for. 13. The writ application has no merit. The same is dismissed. rkp (Ajay Kumar Tripathi, J)