Kullu Prasad Upadhyay vs State Of Chhattisgarh And Ors.

The grievance of the petitioner is that, the respondents though have vide order dated 23.07.2001, Annexure P/1, granted fresh appointment to the

petitioner while ordering that his past service would be counted for the purpose of quantification of pensionable service, but he has not been provided

fixation of pay considering his past service and the salary that he was drawing at the time of submission of resignation on 17.03.1998.

The facts of the case is that the petitioner was working as Constable (General Duty). His appointment was of the year, 1990. He continues worked

on the said post till 17.03.1998. Abruptly the petitioner submitted his resignation on account of some personal reasons which was accepted by the

department on 17.03.1998 and for all the practical purposes the petitioner stood resigned from service from the said date. Subsequently, the petitioner

moved a representation before the higher authorities in the department seeking for reconsideration of his resignation and prayed for permitting him to

withdraw the resignation letter which has been accepted vide order dated 23.07.2001.

The authority concerned, after considering the claim of the petitioner has passed the order Annexure P/1 directing grant of fresh appointment to the

petitioner, however, it was ordered that his past service would be counted only for the purpose of pensionary benefits. It is this order which is under

challenge.

Learned counsel for the petitioner submits that the respondents have erred in counting the past service rendered by the petitioner only for the

purpose of pensionary benefits. He was liable to be given proper fixation of pay taking into consideration his last pay structure that he was drawing on

the date of acceptance of his resignation i.e. on 17.03.1998 and which would substantially increase the pension and retiral dues payable to the

petitioner.

The State counsel opposing the petition submits that it is a case where the petitioner does not have any right in his favour for seeking said relief.

According to respondents, it is a case where the petitioner had voluntarily resigned from service and which was also accepted by the department.

That, his service stood terminated from the department from the said date by virtue of his resignation being accepted w.e.f.17.03.1998. The State

counsel further submits that once when the order of acceptance of resignation has come into force, thereafter the petitioner does not have any

relationship whatsoever with the department and the petitioner could not have prayed for the benefit that he has sought for. Further, the department

has shown mercy to the petitioner by accepting his representation and has also taken a lenient view by granting him fresh appointment counting his

past service only for pension purpose.

Considering the fact that the impugned order dated 23.07.2001 is as explicit as it could be that the petitioner is being granted fresh appointment and

his past service would be counted for pension purpose, this court is of the opinion that nothing further could be granted to the petitioner under the

Rules as it was only a mercy petition preferred by the petitioner which has been accepted by the respondents and which itself was a discretionary

power exercised by the authority. This court under Article 226 of the Constitution of India would not sit upon the discretionary power exercised by the

respondents under service regulations. Even otherwise, the petitioner has not been able to show any indefeasible right created in his favour by which

the benefit of fixation of pay on the basis of his last pay could have been granted to him.

Given the aforesaid facts and circumstances of the case, this court is of the opinion that the petitioner has not been able to make out a strong case

for interference. Accordingly, the petition deserves to be and is hereby dismissed.