Dhirubhai Naranbhai Patel, J. - (1.) This Letters Patent Appeal has been preferred by the original respondents in W.P.(S) No. 4973 of 2003 which was allowed by the learned Single Judge on 09.04.2008 whereby the prayer of the petitioner (respondent herein) for payment of gratuity was allowed. Being aggrieved and feeling dissatisfied by the judgment and order delivered by the learned Single Judge the original respondents have preferred the present Letters Patent Appeal.
(2.) Factual Matrix Respondent was appointed as a Lecturer in the department of Engineering and Mining in Indian School of Mines, Dhanbad. Thereafter, he was promoted on the post of Assistant Professor on 12.09.1995. Thereafter, the respondent (original petitioner) preferred an application in the prescribed format, which was forwarded for appointment to the post of Professor, B.I.T. Mesra, Ranchi on 18.10.2002 and thereafter, he also preferred an application on 21.10.2002 for getting "No Objection Certificate". These appellants rejected the application of the respondent and informed him on 07.11.2002, which is at Annexure -A to the counter affidavit filed by the respondent in this Letters Patent Appeal. The rejection of the application was made under Rule 26(2) of the Central Civil Services (Pension) Rules, 1972. It further appears from the facts that again an application was preferred by the respondent (original petitioner) for getting no objection certificate or application on the post of Professor (Mechanical), B.I.T. Mesra, Ranchi on 12.01.2003 which was again declined by these appellants because the total strength of the permanent employees of these appellants were 175 whereas the actual filled up posts were only 105. Respondent (original petitioner) thereafter, tendered his resignation dated 19.02.2003 to be made effective from 16.04.2003 as the respondent (original petitioner) was selected on the post of Professor (Mechanical) at B.I.T. Mesra, Ranchi. The order of relieving the respondent was passed on 23.04.2003 after acceptance of the resignation. Respondent preferred an application for release of his gratuity amount for the period running from 12.07.1984 to 23.04.2003. These appellants informed the respondent that the respondent will not be entitled to any gratuity vide Rule 26 of the Central Civil Services (Pension) Rules, 1972. This order was passed on 28.08.2003. Being aggrieved and feeling dissatisfied by the aforesaid order dated 28.08.2003, the respondent preferred W.P.(S) No. 4973 of 2003 which was allowed by the learned Single Judge vide order dated 09.04.2008 and hence the original respondent has preferred this Letters Patent Appeal.
(3.) Arguments canvassed by the learned counsel for appellants: Learned counsel for the appellants (original respondent) has submitted that respondent was appointed as a Lecturer and was promoted to the post of Assistant Professor in the Indian School of Mines, Dhanbad which is a registered Co -Operative Society, under the Society Registration Act, 1860, which is owned, managed and controlled by the Central Government, under the Ministry of Human Resources Development, Department which has adopted the Central Civil Services (Pension) Rules, 1972. As per Rule 26(1) and Rule 26(2), resignation of an employee from the service or post, unless it is allowed to be withdrawn in the public interest, by the appointing authority, entails forfeiture of the past service. It is submitted by the learned counsel for the appellants that exceptions have been mentioned under Rule 26(2) and the respondent is not falling within the said exceptions under Rule 26(2) of the Rules, 1972, mainly for the reasons that no permission was given by these appellants and secondly for the reasons that the respondent was not going to join the duties under the Government rather the respondent wanted to join B.I.T., Mesra, institute. B.I.T. Mesra which is not a governmental institution at all and, hence, the case of the respondent is not covered under exceptions carved out under Rule 26(2). Learned counsel for the appellants has submitted that initially the respondent applied for getting "No Objection Certificate" on 18.10.2002, which was regretted by these appellants vide order dated 07.11.2002. Again a request was made by the respondent in the month of January, 2003 which was immediately declined by these appellants on 15.01.2003. Thus, never any permission was granted by these appellants to the respondent for joining the post of Professor at B.I.T., Mesra, Ranchi. Learned counsel appearing for the appellants has submitted that as per Sec. 2(o) of the Central Civil Services (Pension) Rules, 1972 "pension includes gratuity" and, therefore, the respondent is not entitled to any gratuity. The respondent once tenders his resignation, especially when the permission to join the new post is not given by the appellants, and when another job which the respondent was seeking, is not under the Government, he is not entitled to any gratuity. These aspects of the matter have not been properly appreciated by the learned Single Judge while allowing the writ petition service preferred by the respondent. Learned counsel appearing for the appellants has also relied upon a decision in the case of Union of India and Others Vs. Braj Nandan Singh reported in : (2005) 8 SCC 325 especially para -5 thereof, and has submitted on the basis of the aforesaid decision that the language of Rule 26(1) is mandatory in nature. Once the employee is tendering resignation, forfeiture of the past service is inevitable, unless it is allowed to be withdrawn in the public interest by the appointing authority. Learned counsel appearing for the appellants submitted that the aforesaid decision has also not been properly appreciated by the learned Single Judge and, hence, the judgment delivered by the learned Single Judge while allowing W.P.(S) No. 4973 of 2003 dated 09.04.2008 deserves to be quashed and set aside.;