1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:10.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR WP(MD)No.8944 of 2011 G.Sethuraj :Petitioner -Vs- 1. The State of Tamilnadu Rep. by Principal Secretary, Home (Pol. XV) Department, Secretariat, Chennai – 9. 2. The Director General of Police, Police Head Quarters, Chennai. 3. The Principal Accountant General, Thenampet, Chennai. 4. The Superintendent of Police, Tirunelveli District, Tirunelveli. :Respondents PRAYER:Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records pertaining to the proceedings of the first respondent in Letter (D) No. 507 dated 11.05.2010 and quash the same and consequently direct the respondents to sanction pension benefits to the petitioner. For Petitioner : Mr.G.R.Edmund For Respondents: Mr.T.S.Mohamed Mohideen,Additional Government Pleader ORDER Challenge in this Writ Petition is to the Letter (D) No. 507 dated 11.05.2010 of the Principal Secretary to the Government, rejecting the request of the petitioner for grant of pension. 2.Perusal of the impugned order, the material on record and the pleadings shows that the petitioner was appointed as Grade - II Police Constable on 01.10.1970 and while he was working in Kovilpatti East Police Station, now within the jurisdiction of Tuticorin District, resigned his post on 12.09.1983. The resignation was accepted by the Superintendent of Police, Tirunelveli East, by an order, dated 15.08.1983. After five years, the petitioner filed W.P.(MD).No. 8630 of 2008 praying for a direction to the respondents therein to sanction pension to him and consequently a direction to direct the respondents to settle the benefits, to which he is entitled to. By an order, dated 03.11.2008, this Court disposed of the said Writ Petition directed the respondents to consider the representation of the petitioner, dated 12.05.2008 in the light of the judgment, dated 29.01.2008, of the Division Bench of this Court made in D.Padmini Vs. The Registrar General, High Court reported in 2008(3) MLJ 241. However, being aggrieved by the directions issued in W.P.(MD).No. 8630 of 2008, dated 03.11.2008, the State preferred an Appeal in W.A.(MD).No. 139 of 2010. On appeal, the Division Bench, confirmed the decision made in the Writ Petition. Pursuant to which, the representation of the petitioner has been considered with reference to the decision in D.Padmini's case and on comparison of the service rules applicable to the writ petitioner and Ms.Padmini, staff of the High Court, Madras, the Government have rejected the request. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Going through the facts of the case and circumstances, under which a staff of the High Court was constrained to submit her resignation from the High Court service and the case of the writ petitioner who had voluntarily tendered his resignation, fully conscious of Rule 23 of the Tamil Nadu Pension Rule 1978, which entails forfeiture of past service, in case of resignation from a service or post, the Principal Secretary to the Government, Home (Pol. XV) Department, Chennai, has rejected the representation. The contention of the learned counsel for the petitioner that the abovesaid authority has failed to apply his mind in not considering the Division Bench Judgment in proper perspective cannot be countenanced, for the reason that, the said authority after making a comparison study of both the Rules, as well as the constraint faced by the High Court staff to tender her resignation, has passed the impugned order. 4.Rule 23 of the Pension Rules reads as follows: "23. Forfeiture of service on resignation.... (1) Registration from a service of post entails forfeiture of past service: Provided that 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. (2) Interruption in service in a case falling under the proviso to sub-rule (1), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to the Government servant." 5.As per Rule 35 of the Special Rules for Tamilnadu Police Subordinate Service, a member of the service shall if he resigns his post, he would forfeit, not only the service rendered by him, in the particular post held by him, at the time of resignation, but all his previous service under the Government of the State of Madras or any other Government of India. The re- appointment of such person to the service shall be treated in the same way as first appointment to the service, by direct recruitment and all rules governing such appointment shall apply, and on such re-appointment he shall not be entitled to count any portion of his previous service for any benefit or concession as admissible under any rule or order. 6.In addition to the above, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader, who took notice at the time of admission, invited the attention of this Court to Police Standing Order No.274, which deals with the effect of resignation. Police Standing Order 274 states that "if a Government servant resigns his appointment, all his previous service under Government and not only service in the particular post which he held when he resigned will be forfeited. If such a Government servant is appointed again to Government service he will not be entitled to count any portion of his service prior to resignation for any benefit or concession under any rule or order". https://hcservices.ecourts.gov.in/hcservices/ 3 7.Perusal of the letter, dated 23.05.1983 submitted by the petitioner to the Superintendent of Police, Tirunelveli East, shows that on account of domestic problems, the petitioner had to avail leave frequently and considering the same, he had decided to relieve himself from the disciplinary force and submitted his resignation. 8.Material on record further shows that vide proceedings in D.O.No 1859/83, dated 01.08.83, the petitioner has been struck off from deserter of the force for his absence for more than 21 days from 30.06.83 Nevertheless, the resignation of the petitioner, has been accepted. As rightly discussed by the first respondent, there is a clear distinction between Padmini's case, to that of the writ petitioner who had voluntarily submitted resignation. There is no manifest illegality in the administrative action. It is well settled that an administrative action can be called upon in judicial review, if there is any illegality, irrationality or procedural violation. The petitioner has not made out a case under anyone of the abovesaid grounds warranting interference. 10.Hence, the Writ Petition is dismissed. No costs. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1. The Principal Secretary The State of Tamilnadu Home (Pol. XV) Department Secretariat Chennai - 9 2. The Director General of Police Police Head Quarters Chennai 3. The Principal Accountant General Thenampet Chennai 4. The Superintendent of Police Tirunelveli District Tirunelveli +1CC to Mr.G.R.Edmund, Advocate. SR.No.26975. +1CC to The Special Government Pleader. SR.No.27288. Vsg RP/23.08.2011/3P/7C. W.P.(MD).No.8944 of 2011 10.08.2011 https://hcservices.ecourts.gov.in/hcservices/