--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION (S) NO. 6725 / 2006 NARENDRA SINGH PUROHIT Vs. STATE OF MP AND TWO OTHERS * * * * * O R D E R ( 13/9/2011) The petitioner before this Court, who is aged about 74 years, has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondent State Government to count his past services rendered by the petitioner from 23/12/65 to 10/9/70 for the purposes of pension and other pensionary benefits. The contention of the petitioner is that he was initially appointed in the services of Indian Railways on 23/12/65 as a Teacher and his service under the Railways was pensionable service. Petitioner has further stated that he submitted an application in response to an advertisement issued by the State of MP for the post of Lecturer in the Education Department through proper --- 2 --- channel and his application was forwarded by his employer (Railways) and he was permitted to appear in the examination. The petitioner was selected for the post of Lecturer and was offered an appointment on 3/9/70 and was directed to join his duties upto 12/9/70. Petitioner has further stated that he submitted an application along with his appointment order to the Railway Authorities on 10/9/70 with a request to relieve him on 10/9/70 afternoon and he was finally relieved on 10/9/70. Petitioner has joined the State of MP on 11/9/70. The contention of the petitioner is that he has finally sought voluntary retirement on 31/10/2000 and as there was no break in service, the respondents deserve a command to include the services rendered with Indian Railways for the purposes of calculating qualifying period ie., services rendered from 23/12/65 to 10/9/70. Learned counsel for the petitioner has placed reliance upon executive instructions by the Government of India dt. 7/2/86 and his contention is that his case is covered under paragraphs 3, 4, and 5 of the aforesaid executive instructions as State of MP is included under the --- 3 --- aforesaid Circular. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the apex Court in the case of Union of India and others Vs. S. Dharamlingam 1994 SCC (L&S) 496. He has also placed reliance upon a judgment delivered by the Rajasthan High Court in the case of State of Rajasthan Vs. J. N. V. University and others reported in 2004 LAB I.C. 1141 and his contention is that the resignation on his part will not forfeit the past services at all. Petitioner has prayed for issuance of an appropriate writ, order or direction directing the respondents to count the services rendered by the petitioner under the Indian Railways. A reply has been filed in the matter and the stand of the State Government is that the petitioner is not entitled for counting of the past services as he has tendered resignation from Indian Railways and has joined the State of MP. Learned counsel for the respondents has vehemently argued before this court that the petitioner is not entitled for the aforesaid benefit keeping in view Rule 26 and 27 of the MP Civil Services (Classification, Control and Appeal) Rules, --- 4 --- 1976. The respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner has served Railways from 23/12/65 to 10/9/70. The petitioner appeared in the process of selection with due permission of his employer and was selected for the post of Lecturer in the State of MP. He has submitted an application on 10/9/72 to his employer to grant him permission to join the State of MP and the employer was also informed that he has been selected for the post of Lecturer. Petitioner was relieved by the Railways on 10/9/70 and has joined the State of MP on 11/9/70. Petitioner's application cannot be strictly treated as a resignation, in fact, it is a technical resignation by the petitioner to his employer to join the service of the State of MP. Rule 27 of the M. P. Civil Services Pension Rules, 1976 provides that resignation shall not entail forfeiture of past service if it has been submitted to take with proper permission, another appointment whether temporary --- 5 --- or permanent under the Government when service qualifies. In the present case, the petitioner with proper permission has joined the State of MP. Not only this, the Government of India has issued Executive instructions dt. 7/2/86 and para 3, 4, 5 and 6 of the aforesaid executive instructions reads as under : 3. The question of extension of various benefits like counting of service etc., in the cases of (i) employees of the Central Government absorbed in the State Autonomous Bodies, and (ii) employees of Central Autonomous Bodies absorbed in State Government and State Autonomous Bodies and vice – versa, has been considered in consultation with the State Government. After careful consideration, the President has now been pleased to decide that these cases may be decided in accordance with the principles as laid down in the Department of Personnel and Administrative Reforms O. M. No : 28/10/84 – Pension Unit dated 29/8/84. The cases of Central Government servants appointed in State Government and vice versa will continue to be decided as hitherto. 4. Similar orders regarding counting of service of the Central Government employees in the event of their absorption in the State Autonomous Bodies and employees of the Central Autonomous Bodies in the --- 6 --- State Government and State Autonomous Bodies as well as orders regarding acceptance of pension liability etc., in respect of State Government State Autonomous Bodies employees absorbed in Central Autonomous Bodies and employees of State Autonomous Bodies absorbed in Central Government will be issued by the respective State Governments. 5. These orders shall apply to the State Governments and State Autonomous Bodies moving to Central Government / Central Government Autonomous Bodies in respect of the State Governments listed below. 1. Karnataka 2. Madhya Pradesh. 3. Punjab. 4. Rajasthan. 5. Sikkim. 6. Tripura 7. West Bengal 8. Uttar Pradesh 9. Bihar 10. Gujrat 11. Assam 12. Meghalaya. 13 Himachal Pradesh. These orders shall be extended to the employees of other State Government as and when they agree to similar reciprocal arrangements. 6. These orders will apply to the employees of the Central Government moving to State Autonomous Bodies and employees of Central Autonomous Bodies to the State Government and their Autonomous Bodies mentioned in para 5 above and vice versa who are in service on the date of issue of these orders, irrespective of their absorption. In the present case, it is an admitted fact that the petitioner was serving the Government of India as a regular --- 7 --- employee and was holding a pensionable post and therefore keeping in view the specific provisions as contained under Rule 26 and 27 of the pension Rules read with the aforesaid Executive instructions issued by the Government of India, the petitioner is certainly entitled for counting of his past service rendered with Railways for the purposes of computing the qualifying service. The Rajasthan High Court in the case of State of Rajasthan Vs. J. N. V. University and others reported in 2004 LAB I.C. 1141 has held that a technical resignation to join other post under the Government with prior permission of the employer will not amount to resignation in strict sense. Not only this, it has not been denied by the State Government that the petitioner sought permission from his previous employer to join the State of MP and the applications submitted by the petitioner and the orders passed by the Railways have also not been disputed. Resultantly, writ petition deserves to be allowed. The writ petition is allowed. Respondents are directed to take into account the services rendered by the petitioner from --- 8 --- 23/12/65 to 10/9/70 for computing qualifying service for the purposes of grant of pension and other pensionary dues. In the present case, the petitioner is already receiving pension and therefore the aforesaid exercise of revising pension of the petitioner and paying the arrears to the petitioner after such revision be concluded within a period of 6 months from the date of receipt of certified copy of this order. With the aforesaid the writ petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR