IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.7.2009 CORAM THE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HON'BLE MR.JUSTICE RAJA ELANGO Writ Appeal No.1651 of 2000 1. The State of Tamil Nadu rep. by its Secretary to Government School Education Department Fort St. George, Chennai-9. 2. Additional Assistant Elementary Educational Officer Chitlapakkam Chennai 64. .. Appellants/Respondents Vs. 1. V.Jesudoss 2. Accountant General (Accounts & Entitlements) Tamil Nadu, Chennai-18. ..Respondents/Petitioner & 2nd Respondent Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 4.1.2000 made in W.P.No.5483 of 1999 on the file of this Court, petition under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the 2nd respondent in his proceedings pen.24/III/J.10-151/98- 99/ADK/120 dated .9.1998 and quash the same and direct the respondents to sanction pension to the petitioner. For Appellants : Mr.D.Sreenivasan, Addl.G.P. For Respondent-1 : Mr.S.Mani For Respondent-2 : Mr.V.Vijay Shankar https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Delivered by S.J.MUKHOPADHAYA,J.) The first respondent, V.Jesudoss, was a teacher in M.C.C.R.S.L.Primary School, Tambaram. After 15 years of service, he resigned on 31.10.1977. He requested to sanction pension, which was rejected by Accountant General (Accounts and Entitlements), Tamil Nadu, Madras, by proceedings in Pen.24/III/J.10-151/98-99/ADK/120 dated September 1998. The first respondent was informed that the pension scheme of teaching staff of aided school was introduced by G.O.Ms.No.1109, Education dated 31.5.1958 and the crucial date was fixed as 31.5.1958. As he resigned his post on 31.10.1977, which is after the crucial date, i.e. after the introduction of the pension scheme, he is stated to have lost his past service and thereby, the pensionary benefits also. 2. The first respondent challenged the same before this Court in W.P.No.5483 of 1999. The learned Judge, by the impugned order dated 4.1.2000, taking into consideration the unreported order of this Court dated 14.3.1997 made in W.P.No.3066 of 1995, allowed the writ petition and directed the appellants to sanction pension to the first respondent within six months, without interest. But, on failure, it was ordered to pay interest at the rate of 6% from the date of this order to till the date of payment. 3. The learned Additional Government Pleader appearing on behalf of the appellants/State referred to Rule 23 of the Tamil Nadu Pension Rules, 1978 (hereinafter referred to as "Pension Rules") and submitted that the resignation from the post entails forfeiture of the past service. According to him, the past service, having forfeited, the first respondent is not entitled to pension, which is depending on the service rendered. It is further submitted that the first respondent has no continuous service for 15 years. 4. Per contra, the stand taken by the learned counsel for the first respondent is that even in cases of resignation after the crucial date, in a number of hard cases of particular individuals, the Government has relaxed the stipulation and allowed retirement benefits to the resigned teachers also. He placed reliance on a proceedings dated 21.1.1983 issued by the department of Education, Science and Technology, Government of Tamil Nadu. 5. We have heard the learned counsel for the parties and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 6. The only question to be determined in this case is whether the resignation of the first respondent would come in his way to get pension under the Pension Rules and whether the first respondent is entitled to pension for having rendered service for about 15 years. 7. It is now a settled law that pension is neither a bounty nor a matter of grace depending on the sweet will of the employer. It creates a vested right subject to the rules which are statutory in character. Pension is not an ex-gratia payment. But, it is a payment for the past service rendered. It is a social welfare measure rendering socio-economic justice. It is an assurance of the employer that in the old age, the employee would not be left in the lurch [D.S.Nakara & Others v. Union of India - 1983 (1) LLJ 104 = (1983) 1 SCC 305 = AIR 1983 SC 130]. 8. So far as the Pension Rules, 1978 is concerned, Chapter III deals with qualifying service (Rule 11). Rule 12 stipulates conditions subject to which service qualifies. Rule 25 relates to condonation of interruption in service. The forfeiture of service is stipulated under Rule 21 in case of dismissal or removal, which reads as under: Rule 21: Forfeiture of service on dismissal or removal.- Dismissal or removal of a Government servant from a service or post entails forfeiture of his past service. As far as the resignation is concerned, it also stipulates forfeiture of service except in certain condition under Rule 23 and quoted here under: Rule 23: Forfeiture of service on resignation.- (1) Resignation from service or 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." https://hcservices.ecourts.gov.in/hcservices/ 9. Admittedly, the first respondent resigned from service on 31.10.1977. The said resignation was accepted by the competent authority. It is not alleged that any proceeding was initiated against the first respondent or was to be initiated at that stage, which was the reason for submission of resignation by the first respondent. No misconduct or dereliction of duty, while he was in service, was alleged against him. In such case, whether it can be stated that the resignation in the case of first respondent also entails forfeiture of past service. 10. Under proviso to Rule 23, it would be evident that the resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission for another appointment. It is not clear that if a person submits a simplicitor resignation and against whom no proceedings is pending or allegation is pending and if he wants to take rest in his life or is suffering from ailment, whether in such case, resignation will amount to forfeiture of past service. In such case where the resignation is simplicitor, not because of any departmental proceeding or any allegation and has been accepted by the competent authority, if they are equated with those dismissed or removed from service, according to us, it will render two unequal as equal and will be violative of Article 14 of the Constitution of India. 11. In the aforesaid background, to uphold Rule 23 as not violative of Article 14 of the Constitution of India, it is to be held that resignation simplicitor will not entail forfeiture of past service; only in those cases where a person submits resignation because of any allegation or proceedings which otherwise would have attracted punishment like dismissal or removal from service, the provisions of Rule 23 will be attracted forfeiting the past service. 12. This will also be evident from the Government of Tamil Nadu proceedings in R.Cis.No.13053/Pension/13/83 dated 21.1.1983. By the said proceedings, the crucial date from which staff of non Government educational institution are entitled for pension was fixed as 5.6.1991. It was ordered that those who have resigned prior to 5.6.1991 would not be entitled to the benefit. At paragraph 4 of the proceedings dated 21.1.1983, the Government of Tamil Nadu made the following provision: "Even in cases of "resignation" after the crucial dates, the Government have in a number of hard cases of particulars individuals relaxed the stipulation and allowed retirement benefit to "resigned" teachers also. 13. By G.O.Ms.No.396 dated 12.9.1997, in view of the order of the High Court, the Government of Tamil Nadu considered one of such cases, viz. one Mr.TAP.Srinivasan, who resigned from service prior to https://hcservices.ecourts.gov.in/hcservices/ 5.6.1991 and was allowed the pensionary benefit. It would be, thus, evident that in case of resignation of service, it will not automatically forfeit the service of a person, otherwise, it would not have allowed the State Government to pay the pension. But, such interpretation is to be given only in case a person resigns from service during the pendency of a departmental proceeding or because of an allegation pending consideration. 14. In fact, the cut off date, viz. 5.6.1991 fixed by the State Government in the matter of granting retirement benefits to the employees who have resigned from service fell for consideration before this Court in W.P.No.3066 of 1995. By order dated 14.3.1997, P.Sathsivam, J, while considering the identical contention, held as under: "With regard to the cut-off date as relied upon by the learned Government Advocate Mr.D.Krishnakumar has brought to my notice a decision of Lakshmanan,J., in P.M.Subramanian Vs. The State of Tamil Nadu and Another 1992 Writ Law Reporter 691. In the said decision, the learned Judge relying upon earlier decision of Supreme Court as well as some of the decisions of this Court has held that the date of retirement is irrelevant and the revised scheme would be operative from the date mentioned in that scheme and would bring under its umbrella all existing pensioners who retired prior to the specified date and their pension would be computed afresh and would be payable in future commencing from the specified date. Even though the liberalised pension scheme has been introduced in the year 1958, in view of the subsequent clarifications by way of various Government orders as rightly pointed out by Lakshmanan, J., following the decision of the Supreme Court reported in 1983 1 LLJ 104, I am of the view that the date of retirement is irrelevant. When the object of the Government is to give pension to all eligible and qualified person or persons, the date of retirement is irrelevant. Under these circumstances, as already stated the petitioner had qualifying service i.e. 10 years 9 months and 18 days, and therefore, the petitioner is entitled to succeed in the present writ petition." 15. In view of the observation made by us and the decision of this Court as noticed above, we find no ground made out to interfere with the order made by the learned single Judge. We are not inclined to accept that the first respondent having resigned from service, his services stood forfeited for the purpose of pension. So far as the https://hcservices.ecourts.gov.in/hcservices/ question of quantum of payment of pension is concerned, we are leaving that matter open to the competent authority, who has to calculate the period of service for calculating the pension and pay the admitted pensionary benefit to the first respondent in terms with the order passed by the learned single Judge. The writ appeal thus stand disposed of with the aforesaid observation. There shall be no order as to costs. CMP Nos.14136 of 2000 and 20816 of 2001 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl To 1. The Secretary, Government of Tamil Nadu, School Education Department Fort St. George, Chennai-9. 2. The Additional Assistant Elementary Educational Officer, Chitlapakkam Chennai 64. 3. The Accountant General (Accounts & Entitlements) Tamil Nadu, Chennai-18. 1 cc To The Government Pleader, SR.29767. 1 cc To Mr.V.Vijay Shankar, Advocate, SR.29857. W.A.No.1651 of 2000. BKY(CO) RVL 23.07.2009 https://hcservices.ecourts.gov.in/hcservices/