K.C.Sharma vs State of J&K and Others

The short question involved in the present petition is 'whether a person who has resigned from service, is entitled to any pension under the rules'.

service in Public Health Engineering (Mechanical) Department as Assistant Engineer on 20.12.1964. He was promoted to the post of Executive

Engineer in December 1968. On 1.4.1979, after completing 14 years of service, he resigned from the service and contested the election.

Petitioner's case is that since he left the service, though voluntarily with the prior approval of the competent authorities after they accepted

resignation from service, he is entitled to the pension and other benefits like gratuity etc. According to the petitioner, resignation from service and

voluntarily retirement are one and the same thing and that there being no difference between the two, only difference being of nomenclature, the

respondents cannot refuse payment of pension to him. He contends that the Govt. cannot deny pensionary benefits to an employee who has

resigned from service when an employee who applies for voluntarily retirement under the rules, is entitled to all the pensionary benefits.

Respondents have in their reply stated that the petitioner resigned from the public service vide Govt. Order No: 108Works of 1979 dated

1.3.1979. He was relieved on 4.3.1979 and paid Rs 145.55 on account of dues. Respondents have further stated that as per Service Rules, the

resignation entails forfeiture of past service as such the petitioner is not entitled to any pensionary benefits.

Heard. I have consider the matter.

Facts are almost admitted. It is admitted that the petitioner was working as Executive Engineer in Public Health Engineer (Mechanical) Division

Jammu. He resigned from the service and his resignation was duly accepted vide Govt. Order No: 108Works of 1979 dated 1.3.1979. He was

paid the dues as admissible to him. Now he has prayed for the pension and other retiral benefits in his favour. That he was having 141/2 years of

service at his credit at the time of resignation, is also not denied but what is being denied is right of a person who resigns from the services to get a

pension.

Learned counsel for the petitioner placed reliance on Jagdish Mitre Vs State of Punjab and ors 1998 (4) SCT 157. The Punjab and Haryana

High Court in the said judgment has observed that the pension is a right accrued to an employee of the State Government earned by him because

of his service. Court further observed that such a right is continuing one and accruing right which furnishes accruing cause of action. While holding

so the court observed that the person who has got 10 years of service is entitled to pension even though he took voluntarily retirement or resigned

voluntarily. Relying on the said authority the learned counsel for the petitioner submits that since the court took the view that voluntarily retirement

and resigning voluntarily are one and the same thing, the employee would be entitled to pension even though he resigns from service in the same

manner as person who takes voluntarily retirement from the service.

On consideration of the matter, I find observation made by the Punjab and Haryana High Court in the said authority cannot be made applicable

to the facts of the present case for two reasons; firstly in that case the petitioner had taken voluntarily retirement so it was a case of retirement and

not resignation; secondly the petitioner herein is governed by the J and K Civil Service Regulations. Article 200 of which provides as under:

Resignation of the public service or removal from it for misconduct, insolvency, inefficiency not due to ,age or failure to pass a prescribed

examination, entails forfeiture of past service.

The article would show that once a person apply for resignation and his resignation is accepted, his previous service get forfeited. Once there is

forfeiture of service, the service rendered by an employee cannot be counted for the purpose of pension at all. The pension is earned by an

employee because of his service but if the service on the basis of which pension can be calculated gets forfeited, there is no service in the eye of

law which can count for pension. 7. In view of the provision contained in J and K Civil Service Regulations, providing for forfeiture of past service

by an employee who applies for resignation, claim of an employee who resigns from service, for sanction of pension in his favour cannot be

entertained.

In these circumstances, I do not find any merit in this petition which is accordingly dismissed.