PRADIP MOHANTY, J & S.K.MISHRA, J. W.P.(C ) NO.17981 OF 2008 (Decided on 10.11.2010) STATE OF ORISSA ……….. Petitioner. .Vrs. BASANTA KUMAR BEHERA ……….. Opp.Party C.C.S (PENSION) RULES, 1972 – RULE 26(1). For Petitioner - Addl. Government Advocate. For Opp.Party - Mr. Bikram Keshari Mohanty S.K.MISHRA J. The State of Orissa assails the order dated 10.05.2007 passed by the learned State Administrative Tribunal in O.A. No.512 of 2006 and O.A. No. 558 of 2007 directing the State to finalise the pensionary benefits of the present opposite party by counting the past service, which he has rendered in the General Reserve Engineers Force (GREF). 2. The undisputed facts leading to filing of this writ application may be summarised as follows:- The opposite party i.e. the petitioner before the learned Administrative Tribunal, was a Junior Engineer (Civil) in the cadre of Junior Engineer under the State of Orissa and retired as an Assistant Engineer on superannuation w.e.f. 30.04.2004. Prior to his joining as Sub-Assistant Engineer on 06.11.1973, the opposite party has rendered service as Superintendent, B.R. Grade-II in the G.R.E.F. w.e.f. 01.11.1968 to 15.10.1975. He resigned from the service in order to undertake the new assignment on his own request, which was accepted. The opposite party has represented to the Department to count his past service rendered under the G.R.E.F. towards pension, which was not accepted by the Sate of Orissa and such rejection was communicated to the opposite party vide letter dated 23.03.2006. Against such an order, the present opposite party filed an Original Application, inter alia, praying for an order directing the respondents to sanction pension and other pensionary benefits by counting the period on 01.11.1968 to 15.10.1973 as qualifying service. 3. The petitioner appeared in that Original Application and filed counter affidavit, inter alia, averring that since the present opposite party on his own volition opted to switch over to a new assignment with certain terms and conditions, he is not entitled to any pension, gratuity and other terminal benefits for the period from 01.11.1968 to 15.10.1973. The instructions received from the Senior Record Officer for OIC records, Record Office, GREF vide letter dated 15.02.2006 postulates that this Department is a Central Government Department which is governed by Central Civil Services Pension Rules, 1972 and not by Army Rules and Regulations. The instruction further says that in accordance with Rule 26 (1) of CCS (Pension) Rules and Rule 39 (6) (ii) of OCS (Leave) Rules, the Government servant is not entitled for any pension, gratuity or terminal benefits when he resigned from a service or a post (unless it is allowed to be withdrawn in the public interest by the appointing authority). As such resignation entails forfeiture of past service. Since the resignation of the opposite party was accepted w.e.f. 15.10.1975 at his own request and not in the public interest, he is not entitled to any pension, gratuity and terminal benefits. In view of the aforesaid instructions, since the present opposite party opted to switch over to a new assignment on his own will and request, which is not for public interest, the claim of the opposite party to count his past service period for the pensionary benefits was rejected, which is legal and justified. On such pleadings, the petitioner prayed to dismiss the Original Application. However, the learned Tribunal came to the conclusion that the present opposite party is entitled to the pension by taking into consideration the qualifying service he has rendered in the GREF. Such order of the learned tribunal has been assailed in this writ application. 4. The important question which arises in this writ application for adjudication is that, whether the petitioner’s past service rendered in the GREF shall be counted as a qualifying service for the purpose of calculating pension upon his retirement on superannuation from the State Government service. To appreciate the matter on dispute, it is appropriate to take note of Rule 26 of the CCS (Pension) Rules, which reads as follows:- “26. Forfeiture of service on resignation- (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails 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.” 5. A reading of the aforesaid Rules reveals that a resignation submitted to take up another appointment without permission entail forfeiture of past service. Admittedly, in this case no such permission was taken from the appointing authority. Rather, the opposite party submitted his resignation on the ground of personal difficulty. The disqualification for counting the past service has also not been condoned by the appointing authority and as such question of counting the period of GREF service does not arise. Thus, a bare reading of Rule 26 of the CCS (Pension) Rules it is clear that the opposite party having resigned from the past service has forfeited the claim of counting such service as qualifying service for the purpose of retirement benefits. 6. The learned Tribunal has placed much weightage on the fact that the present opposite party has come up for protection after joining in the State service. However, grant of pay protection shall not over-ride the statutory provision. Rule 26 is framed under the authority of the Constitution, whereas grant of pay protection is an executive action. Thus, the provision of law shall prevail over any executive action and in such a situation, this Court is of the opinion that the reasoning resorted to by the learned Tribunal is erroneous and requires interference. 7. In the result, the writ application is allowed and the order passed on 10.5.2007 in O.A. No. 512 of 2006 is quashed. Writ petition is allowed. 2