Resignation from government service, as per Rule 101(a) of the Bihar Pension Rules, results in the forfeiture of past service and precludes entitlement to retirement benefits.

Mihir Kr. Jha, J. – Heard Mr. Bindhyachal Singh, learned counsel for the petitioner and the learned counsel for the State.

2. Time they say is the best heater but then not in all cases. The petitioner having been appointed on 22.7.1966 in the Government service after tendering his resignation on 14.4.1977 became over ambitious in 1990 first to challenge the acceptance of such resignation and also in alternative for claiming the payment of pension, gratuity and other retirement benefits. When the same was denied by the respondents on the ground that in terms of Rule 101(a) of the Bihar Pension Rules a person having resigned from the service would not be entitled to payment of pension, gratuity and other retirement benefit, he came to this Court in 1991 after 14 years of acceptance of his resignation assailing the decisions of his acceptance of resignation as also denying him post retirement benefit. Such writ application, C.W.J.C. No. 4684/1991 filed on 16.7.1991, was placed before the Division Bench on 31.7.1991 but the then counsel for the petitioner, appearing in that case, had given up first claim of the petitioner for reinstatement in service by accepting that the petitioner had resigned from service which had also been accepted by the Government.

3. The petitioner, however, in that writ application had continued to press his claim for payment of retirement benefit and as such, when the respondents took help and support of Rule 101(a) of the Bihar Pension Rules envisaging forfeiture of pension on account of resignation the petitioner leave was sought to amend the said writ petition for challenging the vires of Rule 101(a) of the Bihar Pension Rules.

4. All these facts would be evidenced from the ORDER :of this Court dated 31.7.1991 in C.W.J.C. No. 4684/1991 reading as follows : –

“In this particular case the petitioner is claiming reinstatement to the original post and the post retirement benefits.

At the time of hearing of this application, learned counsel for the petitioner has given up the first claim because the petitioner has resigned from the post which has been accepted by the Government. Accordingly, he seeks relief in respect of post retirement benefit on the basis of such resignation.

Learned counsel for the State has drawn our attention to Rule 101(a) of Section-V which deals with suspensions, resignations, breaks and deficiencies in service. Rule 101(a) of Bihar Pension Rules provides as follows : –

101(a) Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.”

Admitted position is that if the petitioner had retired on that date instead of resignation then some post retirement benefit would have been granted to him according to the existing rule. The whole question is whether in view of Rule 101(a) of Bihar Pension Rules he is deprived from getting any post retirement benefit.

Learned counsel for the petitioner has submitted that he wants to challenge the validity of the said Rule on the ground of violation of Articles 14 and 16 of the Constitution of India and other provisions of law and accordingly he may be given liberty to amend the said petition.

We think this is a fit and proper case, where the petitioner who has put in twelve years of service, should be given such liberty to agitate such point. Accordingly, we allow him to amend the petition by allowing him to challenge the Rule 101(a) of Bihar Pension Rules which debars him from getting any pension or gratuity because of “forfeiture of past service” on the ground of resignation.

Let the supplementary petition by way of amendment be filed within one week from this date and the counter affidavit be filed by the learned counsel for the State dealing with the whole facts of the case within two weeks from the date of receipt of the copy of the supplementary petition for amendment.

Let this matter appear in