1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R S.K. Lohra Vs. 1. The State of Rajasthan, 2. The Joint Director, Agriculture, Jodhpur. 3. The Director, Pension Deptt., Jaipur. S.B. CIVIL WRIT PETITION NO.4259/1999 under Article 226 of the Constitution of India. Date of order : 01.10.2007 PRESNET HON'BLE MR. JUSTICE RAJESH BALIA Mr. Hemant Dutt for Mr. M.S. Singhvi for the petitioner. Mr. L.R. Upadhyay, Dy. Government Advocate. ______ BY THE COURT:- Heard learned counsel for the petitioner as well as Dy. Government Advocate. The petitioner was appointed as Lower Divisional Clerk on 12.2.1955. While he was working as Marketing Manager, he resigned from service on 21.7.1965 to join profession. It appears that for the first time the petitioner raised a claim in 1986 for pension on the ground that he had qualifying service to his credit when he resigned. But his claim was rejected vide 2 communication dated 5.1.1987 pointing out that no pension is payable to the person who has resigned from service and it is not a case of voluntary retirement. This was responded by representation dated 11th March, 1987 to allow the petitioner to draw pension which was duly forwarded to the Director, Pension Department but the same was also rejected vide communication dated 19.5.1987 and the same was communicated to the petitioner on 25.7.1987. It appears more than 10 years thereafter on the premise that this Court in its judgment dated 9th June, 1997 in S.B. Civil Writ Petition No.2968/1989 Lochan Vishal Vs. State of Rajasthan and others has made certain observations about grant of pension to the person who has resigned from service, he resurrected his claim to pension which was also rejected on 22nd March, 1999. Hence, the petition was filed on 14.9.1999. The respondents relied on the existing Rule 208(b) of the Rajasthan Service Rules 1950 that pension is not available under the Rules to a person, who resigns from the service and that too without fulfilling the period at which he could have availed the provision of 3 seeking voluntary retirement by keeping his right to pension on completion of qualifying service. The learned counsel for the petitioner has urged that a person, who on completion of qualifying service is awarded a punishment of compulsory retirement gets the pension, therefore, a person who resigns from service on completion of qualifying service cannot be put at a lower pedestrian. He also relied on the decision of Lochan Vishal's case. The petition has been filed for laying claim for pension before completion of the minimum required period for seeking voluntary retirement by retaining the right of pension. After 34 years of resignation from the service, and almost 10 years after rejection of his claim for pension this petition was filed. The pension claim itself was raised for the first time after 10 years of resignation. Therefore, at each stage, the petitioner has acted with gross latches which has not been explained. The only reason now to come before the Court is to be stated that the petitioner's representation filed after the judgment in Lochan Vishal's case has been rejected in 1999. In the facts and circumstances of the present 4 case, this explanation is not sufficient to explain the latches. On the ground of latches, the learned counsel for the petitioner relies on the decision rendered in P.L. Shah Vs. Union of India and another AIR 1989 SC 985. On the facts of the present case the principle enunciated in either cases are not applicable. Apart from the latches, the petition also does not have any merit. Indisputably the petitioner has not completed minimum required service for walking out of the service and retaining the right of pension. At the relevant time when the petitioner resigned from service, the Rule 244 enabled a Government servant to seek voluntary retirement by keeping his right to pension alive only on completion of 25 years of service or on attaining the age of 45 years. On the date when the petitioner resigned from service he has not completed either of the conditions. Therefore, in terms of Rule 244 which permitted the petitioner to terminate the service of contract without forfeiting his rights under the Contract to retiral benefits is not available to him. It may be pertinent to mention here that Rule 244 also permits the employer to terminate the service which is not stigmatic by keeping intact the benefit of the service 5 with the employee and that is not by way of punishment. The illustration taken up by the learned counsel for the petitioner is inapt inasmuch as the case of proved misconduct cannot be considered as comparable to bring an end of service voluntarily by either of the parties before stipulated period to wriggle out from the rigour of term of contract. In case of proved misconduct, it is not a voluntary termination of service by either of the parties, but is by way of discipline. In case the compulsory retirement is one of the punishment prescribed under the rules and the employer in its managerial power decides to inflict the punishment less than dismissal or removal. It is not by way of voluntary bringing an end of the service by either of the parties but as a compulsory and coercive measure required to be taken against the incumbent on account of his own misconduct. Therefore, a case of punishment for misconduct cannot be equated with a course voluntarily adopted by the incumbent for terminating his services to get out from the condition of service. The conditions of termination were well known to the parties. The benefit of retirement and retiral benefits are extended by the employer on fulfilling the conditions of service as envisaged under the Rules and if before that, the incumbent wants to walk out of the service, he being an independent individual can do so but in terms 6 of service conditions, he does not become entitled to avail the pensionary benefits. In fact, the petitioner is seeking to enforce the rights de hors the rules and service condition which is not permissible. The cases where a person uses a particular expression to bring an end to contract of service voluntarily after becoming eligible to seek voluntary retirement by keeping his right to pensionary benefits intact, cannot be equated with the case where a person walks out before he becomes entitled to avail the benefit of pensionary emoluments by resigning. In such cases where the petitioner walks out of the services on completion of minimum required period after which he can avail the option to walk out of the service by retaining the benefit of pension is distinct class of cases which is not comparable with the petitioner's case. The decision relied on by the learned counsel for the petitioner makes out this distinction very clear. In Lochan Vishal's case, the petitioner was working as a Lower Divisional Clerk since 1938 and has submitted his letter seeking retirement on 1.1.1964 after completion of more than 25 years of service that is to say at the stage where he could voluntary terminate his services and walk out by keeping his pensionary 7 benefits intact because under the condition of service he was entitled to do so. It is in these circumstances, the court found that since the incumbent had submitted his letter to go out of service on account of old age considering he is not willing to continue to work. In the aforesaid circumstances, it was found as a fact that it was a case of voluntary retirement and not a case of resignation and, therefore, it was held that clause (b) of Rule 208 is not applicable. It is pertinent to notice the following observations made by the learned single Judge in Lochan Vishal's case:- “9. By clause (b) of Rule 208, it is stipulated that the resignation of an appointment to take up another appointment is not a resignation of a public service. According to me if the Rule is read as a whole, it is designed to visit forfeiture of service to an employee if he leaves the service or is dismissed or removal from it for misconduct insolvency or inefficiency. If the resignation of the public service is due to age, it cannot be considered to be a resignation requiring forfeiture of service. The petitioner in the present case has rendered 25 years of service desired retirement because of his clumsy drafting and incorrect statement of the provisions of law. It was denied to him and his resignation was accepted certainly the resignation from public service is not for any inefficiency arising due to age or any other misconduct, its resignation due to age and other domestic difficulties. Such resignation in my opinion is not one which will entail forfeiture of past service. The respondents were, therefore, in error in denying the benefit of pension etc. to the petitioner after the pension scheme was made applicable to employee like the petitioner.” 8 Thus, in the circumstances of the case, the Court treated it to be a case of retiring from service under Rule 244 and not resignation from service. The parallel with present case is one decided by learned Single Judge in S.B. Civil Writ Petition No.3983/1997 Sohan Lal Soni Vs. State of Rajasthan & Ors. decided on 20.11.2006. That was a case in which the petitioner had joined as Assistant Teacher in the Education Department on 28.1.1955 and resigned from service on 5.6.1968 on completion of 13 years of service but before he became entitled to seek voluntary retirement by retaining his right of pension. The petitioner was not entitled to the benefit of pensionary benefits and rule was held not ultra vires. In the present case, by any sort of reasoning, the letter of the petitioner cannot be treated as a request for voluntary retirement under the relevant Rule as he did not fulfill the condition for the operation of rule. In view of the aforesaid, the writ petition fails and is hereby dismissed. No order as to costs. [ RAJESH BALIA ], J. 9 babulal/