S.J. Mukhopadhaya, J.

The writ petition was preferred by the petitioner for direction on respondents to sanction the pension and other retirement benefits, he having completed 14 ½ years qualifying service.

2. According to the petitioner, he was recruited through Tamil Nadu Public Service Commission and joined as Junior Assistant in Highways Department on 19th Sept., 1973 and, later on, at his request, was transferred and posted in the Commercial Taxes Department and joined Sales Tax Appellate Tribunal on 6th Oct., 1982. While in service, he suffered mental illness for which he had to proceed on medical leave from 1st Sept., 1987 to 29th June, 1988 and 30th June, 1988 to 29th July, 1988. Since the leave exceeded more than one year, he was served with a notice that no government servant can be on leave for more than one year.

In this background, he had to resign from service, but on recovering from illness, requested the 2nd respondent to reinstate him in service, which was rejected on 17th Feb., 1993. The 3rd respondent also rejected the prayer. In the meantime, he having attained the age of superannuation, applied for retirement, but such application was rejected.

3. Counsel appearing on behalf of the petitioner submitted that even if the petitioner was not reinstated, he having completed 10 years of service, is entitled for retiral benefits such as pension, gratuity, etc. He referred to Rule 43 (2) of the Tamil Nadu Pension rules, 1978 and submitted that government servants retiring in accordance with the provisions of the rules before completing the qualifying service of not less than 10 years are entitled for pension of appropriate amount as set out under the rule.

The stand taken by the respondents is that the petitioner went on earned leave submitting medical certificate for the period 1st Aug., 1987 to 29th Sept., 1987. Inspite of issuance of fitness certificate, he did not join duty on 30th Sept., 1987. He was allowed extraordinary leave without pay and allowance and without medical certificate for the period from 30th Sept., 1987 to 27th July, 1988. He joined duty after expiry of the leave on 28th July, 1988. Subsequently, he submitted resignation on 2nd Aug., 1988 and requested to relieve him. The 1st respondent, by letter dated 9th Dec., 1988 and 4th May, 1989, instructed the petitioner to settle all the dues payable to the Government. Accordingly, the petitioner had paid all the amounts as was due to the Government, whereinafter the 1st respondent accepted his resignation vide letter dated 30th Nov., 1989. Further, counsel for the respondent submitted that the resignation of the petitioner having been accepted, his representation for reinstatement was rejected. The petitioner forwarded the General Provident Fund application directly to the Accountant General, Chennai, for final drawal, but the same was returned as it was not submitted in the prescribed format and was not counter signed by the head of the office. He was also requested to fill-up final withdrawal form of General Provident Fund vide letters of 1st respondent dated 28th Dec., 2004, 3rd Feb., 2005, 10th March, 2005, 11th April, 2005, 17th May, 2005, 19th July, 2005, 10th March, 2006 and 28th March, 2006, but he ignored all such correspondence. In regard to special provident fund, it was informed that the petitioner was paid principal amount of Rs.800/= together with interest of Rs.113/= on 8th Sept., 2004, and in view of resignation, he is not eligible for pensionary benefit in view of Rule 23 of the Tamil Nadu Pension Rules.

This was disputed by the counsel for the petitioner, who referred to Division Bench decision in D. Padmini – Vs – Registrar General, High Court, Madras, dated 29th Jan., 2008, in W.P. No.44724/02 and submitted that the case of the petitioner is not covered by Rule 23, but Rule 5 of the said Pension rules.

4. We have heard the learned counsel for the parties and noticed their rival submissions.

5. Rule 23 of the Tamil