Judgment

Arijit Pasayat, J.—Challenge in this appeal is to the judgment rendered by a Division Bench of the Patna High Court holding that respondent is entitled to pension under the Central Civil Services Pension Rules (in short the ‘Rules’). The view expressed by the Central Administrative Tribunal about the respondent’s entitlement to suspension was upheld.

2. The undisputed factual background is as follows:—

The respondent was serving as a temporary Sorter on being appointed by the Superintendent, Railway Mail Service, ‘U’ Division, Muzaffarpur w.e.f. 14.10.1959. He was posted in the office of SRO Sonepur. He tendered his resignation on 16.5.1977 to contest election to Bihar Legislative Assembly. The resignation was accepted by letter dated 17.5.1977. Long after the resignation was accepted i.e. nearly after about two decades, the respondent filed a representation before the Chief Post Master General, Bihar Circle, Patna for grant of pension. The same was rejected on the ground that since the respondent had resigned, by operation of Rule 26(1) of the Rules his past service stood forfeited and, therefore, he was not entitled to any pension. The decision was communicated by the Assistant Director, Bihar Circle, Patna. An application under Section 19 of the Administrative Tribunal Act, 1985 was filed before the Patna Bench of the Central Administrative Tribunal (in short the ‘Tribunal’). The Tribunal by its order dated 14.3.2001 held that the forfeiture of past service was not sustainable in law. It was held that by operation of Rule 26 the benefit available to a retired government servant cannot be denied on the purported ground of forfeiture of past service. It was noticed that though the original application was filed after about 21 years from the date of acceptance of resignation same cannot be a ground to deny the benefits. The appellants filed a writ petition before the Patna High Court questioning correctness of Tribunal’s decision. The High Court by its order dated 17.4.2003 held that to receive retirement benefits is a right of service which is inherent, and Rules should not be torn out of context to deny post retirement benefits.

3. In support of the appeal learned counsel for the appellants submitted that Rule 26(1) in clear terms postulates about forfeiture of past service in case of resignation. Once the past service is forfeited the qualifying period for receiving pension does not exist. Therefore, the Tribunal and the High Court were not justified in their views.

4. In response, learned counsel for the respondent submitted that the entitlement of pension flows from the Rules. There are specific provisions under which pensionary benefits can be denied. Rule 26 cannot be pressed into service to deny the benefits. He submitted that Rule 26(2) provides an escape route to the forfeiture of past service. Merely because after acceptance of resignation the employee did not take up another appointment under Government that would not take away the right to receive pension flowing from the Rules.

5. In order to appreciate rival submissions Rule 26 which is the pivotal provision needs to be quoted. The same reads as under:

“26. Forfeiture of service on resignation

(1) Resignation from a service or post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service.

(2) 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.”

6. Rule 26 as the heading itself shows relates to forfeiture of service on resignation. In clear terms it provides that resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service. The language is couched in mandatory terms. However, sub-rule (2) is in the nature of an exception. It provides t