CWP No. 5789 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 5789 CAT of 2010 Date of decision 7.4.2010 Union of India and another ... Petitioners Versus R.M.Ahluwalia and another ... Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. R.K.Chugh,Advocate for the petitioner 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The Union of India has filed the instant petition under Article 226 of the Constitution with the prayer for quashing order dated 2.7.2009 (P.1) passed by the Central Administrative Tribunal, Chandigarh (for brevity 'the Tribunal') whereby directions have been issued to the respondents to given an option to the applicant as required under Rule 39 of the Central Civil Service (Pension) Rules, 1972 (for brevity 'the 1972 Rules') for grant of compensation pension. Brief facts of the case are that on his appointment by the Central Water Commission, the respondent joined as Instructor, Heavy Earth moving at Technical Training Centre, Kota, Rajasthan on 2.4.1962. He was transferred to TT Centre, Nangal in November, 1967. The respondent was declared quasi permanent in May, 1965 by the Central Water Commission. On 28.2.1974 (P.4) the respondent was transferred to Baira Siul Hydel Project. On 20.3.1974, the Central Water Commission informed the Baira Siul Hydel Project that certain Technical Training Centre courses run by the project were being closed w.e.f. 31.3.1974 and CWP No. 5789 of 2010 2 respondent who was sent to that project on deputation would not be treated on deputation beyond 31.3.1974. It was suggested that he might be absorbed in the Project w.e.f. 1.4.1974. The petitioner claimed that in February, 1977 Baira Siul Project went to National Hydro Electric Power Corporation. The respondent on medical grounds could not continue in service and was accordingly relieved on 31.1.1977. The respondent was given gratuity but he was not allowed any pension. Aggrieved by the action of the petitioners, the respondent filed Original Application before the Tribunal for issuance of direction to the petitioners for grant of pensionary benefits by urging that as he has put in 15 years of service in the Central Government upto 31.1.1977, when he took voluntary retirement, he was entitled to pension under Rule 37 read with Rule 49(2)(b) and under Rule 19(2)(b) of the 1972 Rules by arguing that the qualifying service required for this pension is 10 years. The OA was disposed of by the Tribunal on 25.1.1998 (A.6). The order of the Tribunal was challenged by the petitioners by filing CWP No. 14331 of 1998 in this High Court which was disposed of 6.7.2005 by affirming the directions issued by the Tribunal and a direction was issued to the petitioners to consider his claim and pass necessary orders within four months of the receipt of the order. The respondent filed C.P. 32 of 2006 before the Tribunal which was disposed on 6.12.2006 with a direction to the petitionerss to comply with directions contained in the order dated 29.1.1998. In pursuance thereof the petitioners considered the case of the respondent on 15.5.2007 (A.1) and declined the request of the respondent on the ground that the respondent had resigned from service and unless it is successfully withdrawn subsequently. It results in forfeiture of past service. CWP No. 5789 of 2010 3 The respondent filed OA No.301 Pb of 2008 before the Tribunal for quashing of order dated 15.5.2007 (A.1). The respondent asserted that he remained a Central Government employee throughout his service from 2.4.1962 to 31.1.1971 and being a temporary employee he was entitled for gratuity for the period of his service in the Commission from 2.4.1962 to 28.2.1971. Therefore under Rule 11(10)(b) of the Central Civil Services (Temporary Service) Rules, 1965 he was paid the amount of Rs. 6661/- as gratuity. The petitioner urged that the respondent was not entitled to benefit of the provisions of Rule 39 of the 1972 Rules. The Tribunal after relying on its earlier orders and taking into consideration the provisions of Rule 26 of the Rules observed that the case of the respondent is not covered under Rule 26 as when a post is abolished w.e.f. 31.3.1974 and deputation is being cancelled without there being any possibility of the respondent being called back to his original post then his case would be covered by Rule 39 of the 1972 rules. The resignation submitted by the respondent would not make any difference because the post was abolished. His case was found to be covered under Rule 39 of the 1972 Rules. The Tribunal further held that the petitioners cannot absolve themselves of their responsibility of paying the dues of the respondent by thrusting the responsibility on the respondent on the ground that the respondent had submitted resignation. We have heard the learned counsel for the petitioner at some length. The Tribunal after considering Rules 26 and 39 of the 1972 rules has rightly concluded in para 10 as under: “ In so far stand taken by respondents on rule 26 is concerned, I find that the same is not covered under rule 26 inasmuch as it CWP No. 5789 of 2010 4 has been held by this Bench in its earlier order that a post is abolished as suggested by letter dated 20.3.1974 w.e.f. 31.3.1974 and deputation is also being cancelled without there being any possibility of the applicant being called back to his original post, the post not being there, the case of the applicant would fall under Rule 39 of the CCS (Pension)Rules, 1972. The resignation submitted by the applicant would not make any difference as the case of the applicant is covered under rule 39. The respondents cannot absolve themselves of their responsibility of paying the dues of the applicant by thrusting the responsibility on the applicant on the ground that the applicant had submitted resignation.” It is admitted position that the respondent had put in more than 10 years of service when he resigned and his resignation was not on account of the fact that he was transferred to another department but was on account of the fact that the post was abolished. Therefore, when the post is abolished and person is declared surplus then Rule 39 of the Rules would apply. Accordingly, we are of the view that the findings recorded by the Tribunal are well based and do not warrant any interference by this Court. The writ petition fails and the same is dismissed. (M.M.Kumar) Judge (Jitendra Chauhan) 7.4.2010 Judge okg