Y S PARMAR Vs. ANAND SINGH VERMA

JUDGEMENT

(1.) THE respondent has come up in appeal against the judgment dated 30th August 2011 in CWP (T) No. 3090 of 2008. The writ petitioner-private respondent claimed the benefit of about 14 years temporary service rendered in the State Government before taking appointment in the University. That was allowed by the learned Single Judge and thus aggrieved, the University has come up in appeal.

(2.) ONE of the main contentions raised by the learned Counsel for the University is that the writ petitioner having resigned from the service of the State, is not entitled to any benefit on account of past service since the resignation postulates forfeiture of past services. Another contention is that the Government itself has declined the benefit of 14 years temporary service and hence, what has been declined by the State cannot be granted by the University. The third contention is that in case the State Government grants the benefits to the University, the University has no objection.

(3.) ON facts, it is also to be noted that there is no interruption in service and the service is otherwise continuous. The Government of India has in fact dealt with the identical situation, leading to the decision dated 21st September, 1960 (Government of India's Decision No.1) in the CCS (Pension) Rules, which reads as follows:- (1) When resignation a technical formality and when it subsists--- A Government servant intending to apply for a post or posts outside his parent office/department under the Government of India should have his application forwarded through the Competent Authority under whom he was serving at the time of applying for the post. Such an authority should either forward the application or withhold it according as the exigencies of public service may indicate but it should not forward the application conditionally, for example, that in the event of the applicant coming out successful, he will be required to resign his post before taking up the new one. Once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course and the question of his resigning the post held by him in such circumstances should not arise. Accordingly, the amended article is intended to cover the case where even though the applications were forwarded by the Competent Authority, the applicant had been asked for one reason or the other to resign his post before taking up the new one. The above position holds good whether the Government servant held the post in permanent or temporary capacity, before resigning the post. Situations may arise where the application of a government servant was not forwarded and the Government servant resigned his appointment of his own volition with a view to his taking up the new post or where it was not possible to forward his application in the public interest but the Government servant had volunteered to resign his post or where the conditions of service in an office demand as a matter of policy that the Government servant should resign his post in the event of his taking up another post outside. In all such cases, it has been held that resignation of public service will subsist and entail forfeiture of past service. It has been decided that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for the purposes of fixation of pay in the new post treating the resignation as a 'technical formality'. The pay in such cases may be fixed under FR 27. According to M.H.A., O.M. No. 60/37/63-Ests. (A), dated the 14th July, 1967 (not printed), the permanent/quasi- permanent Central Government servant appointed under another Central Government department has to resign from his parent department unless he reverts to that Department within a period of two years (three years in exceptional cases) of his appointment in the other department. The Government of India have been considering whether this resignation should entail forfeiture of past service for purpose of leave and pension of the Government servant concerned. It has been decided that such a resignation should be deemed to be resignation within the meaning of Article 418(b) of CSRs [Rule 26(2)] for pension. As a consequence of this decision, continuity of service benefit should be allowed in the matter of leave also."