Ajay Rastogi, J.

Instant intra-court appeal has been preferred against order of the learned Single Judge dated 27.05.2004 directing the appellant to consider case of the respondent employee for grant of pensionary benefits of 32 years of qualifying service which he rendered in accordance with Rules.

2. The brief facts which are necessary & culled out to consider the controversy are that the respondent who is almost a illiterate person initially appointed as class-IV employee in the Municipal Board Jaipur on 31.5.1958 (now the Jaipur Municipal Corporation). He was suffering from Recurrent Efrisodes of Allergic Asthma and was under the regular medical treatment and because of his medical illness he submitted application Annx.1 dated 25.10.1990, it appears to be a typed copy and the blanks have been filled in and he showed his intention that he is working in the cadre of class-IV and because of his old age he is unable to serve and wanted to be relieved from the job and because of the aforesaid reason he has shown his inclination to resign and his application was accepted by the authority vide letter dated 21.12.1990 and the department has shown its concern about the fact that the respondent employee is unable to serve and a composite order was passed by the authority of the Jaipur Municipal Board dated 21.12.1990 while accepting his request granted appointment to one of his son Manak Chand as Safai Karamachari in the regular pay-scale-750-12-798-13-850-15-940.

3. It is not disputed that the post which was held by the respondent employee of class-IV in Jaipur Municipal Board is a pensionable post and the qualifying service of 32 years rendered he was eligible for full pension and other retiral benefits. It is also not the case of the appellant that there was any enquiry departmental/judicial pending or there was any reason for which his request to be relieved from the job would have been denied to him and even for the payment of gratuity he had approached to the prescribed authority and under order of the prescribed authority he was paid his gratuity and interest vide order dated 01.01.1998 after almost 8 years of his relinquishment from the job.

4. At this point of time he served a legal notice for releasing his pension and other retiral benefits but when the notice was not responded by the appellant he approached to the learned Single Judge of this Court by filing writ petition and the learned Single Judge vide judgment dated 27.05.2004 allowed the writ petition placing reliance on the judgment reported in 1998(2)SLR 646 and was of the view that the application which has been placed on record indicates that because of his medical illness he has shown its unability to serve and wants to be relieved from the job and merely a nomenclature of word resignation being indicated in the application prayed for that in itself cannot be considered sufficient to forfeit his 32 years of qualifying service and the request that because of old age he was unable to serve and wanted to be relieved from job has to be taken note in the manner indicated and under these facts and circumstances the qualifying service of 32 years cannot be forfeited and allowed the writ petition under order impugned dated 27.05.2004.

5. The main thrust of submission of counsel for appellant is that as he had tendered his resignation and which has been accepted by the competent authority and while accepting his application for resignation prayed for his dependent son got appointment on temporary basis as Safai Karamchari vide order dated 21.12.1990 his resignation forfeits past service as contemplated u/R 208 of the Rules,1951 and corresponding R.25 of Rules,1996 the learned Single Judge was not at all justified in directing the appellant to release pension and other retiral benefits of the employee who was ineligible to get pension & retiral benefits on acceptance of his resignation which entails forfeiture of his past service and submits that the order of the lea