S.Vijayalakshmi vs The Commissioner, Kendriya Vidyalaya Sangathan & Ors.

Per : Mr. P. MADHAVAN, JUDICIAL MEMBER –

The applicant has filed OA No. 180-445-2017 seeking the following reliefs:

In short, the applicant's case is that she joined the service of the respondents as a music teacher on 18.2.1987. Thereafter she was posted to Car Nicobar Islands (Air Force Station) from KV Kanjikode (Palakad II). Accordingly, the applicant was relieved from Palakad on 6.4.2002. While the said transfer order came, the applicant was undergoing treatment for stomach pain and she had to avail leave during this period. In the meanwhile, the applicant was again transfer to KV I Mangalore in July 2002. However, she could not join at Mangalore also due to her ill health. She had to undergo a major surgery for 'Appendicitis & Inflammed meckeil's Diverticulectomy' at Prasanthi Hospital. On account of the major surgery the applicant had to continue on leave. On 10.02.2003, she had submitted Annexure A-5 application for voluntary retirement to the 3^rd respondent. The reason for the said application was that she was unable to discharge her duties as a teacher due to her physical ailments. The respondent had accepted Annexure A-5 as her resignation as per Annexure A-6 w.e.f 17.06.2003. The applicant was not granted any terminal benefits. On 09.07.2004, she had sumbitted her representation for granting terminal benefits before the 2^nd respondent. The respondents thereupon had forwarded a demand draft of Rs.67,700/- as final payment of GPF amount. An amount of Rs.4146/- was also paid as part of the KVS EWS. According to her, Rule 26(1) states that resignation from service entails forfeiture of past service. According to her this provision is unconstitutional and arbitrary. The applicant was compelled to resign due to her illness and inability to rejoin duty. The denial of minimum pension to the applicant who had rendered 16 and a half years of service is patently illegal and aribitrary and hence she has filed this O.A.

The respondents filed a detailed reply statement denying the allegations made in the OA. According to them, the Government servants becomes eligible to get pensionary benefits only when they retires from the service. In the case of resignation/termination, etc. the Government servant forfeits his right to pensionary benefits. The only exception is technical resignation tendered with a view to taking up another appointment in the Central/State Government or PSU or Autonomous bodies. The applicant in this OA had tendered her resignation on 10.02.2003 (Annexure A-5) and Competent Authority had accepted the same on 17.06.2003. So the applicant is not entiltled to get any pension or other benefits in view of the Rule 26(1) of CCS(Pension) Rules, 1972. According to them the said Rule is not at all unconsitutional as alleged by the applicant. Non-grant of pension for a person who had resigned from the service was upheld by the Hon'ble Supreme Court in Union of India and others Vs. Braj Nandan Singh – (2205) 8 SCC 325.

The applicant had filed rejoinder to the reply statement filed and also invited our attention to the decision of the Principal Bench of this Hon'ble Tribunal in Amar Singh Vs. GNCT Delhi (OA.No.1619/2012 dated 10.04.2013) wherein the applicant was held to be eligible for getting pensionary benefits. The counsel for the applicant mainly relies on the decision in Asgar Ibrahim Amin Vs. LIC of India wherein the Hon'ble Supreme Court has held that the State being a model employer should construe the provision of a beneficial legislation in a way that extends the benefits to its employees, instead of curtailing it. He also relied on the decicision of the Hon'ble High Court of Kerala in E.K.Varghese Vs. State of Kerala in WP(C)No.33341/2010 dated 07.03.2014 wherein a similar provision in KSR Part III Rule 29(a) was held unconstitutional and ultravires in so far as it denies pension to the persons like the petitioner therein. On the other hand, the counsel for the respondents has invited our attention to the case C.R.Venmani Vs. Union of India and Others in OA Nos. 473/2013 & 929/2014 dated 23.09.2016 wherein Division Bench of this Tribunal categorically held that Rule 26 (1) of CCS (Pension) Rules is not ultravires and dismissed the said OA. The side decision has become final and this Tribunal is bound to follow the said decision. The counsel for the applicant has invited our attention to Single Bench decision of this Tribunal in V.K.Samu Vs. Union of India and Others in OA No. 235/2018 dated 19.12.2018 wherein the Tribunal had followed the dictum laid down in Asger Ibrahim Amin's case (supra) and directed the respondents to grant pension.

We have carefully gone through the pleadings and various decisions produced before this Tribunal. On the perusal of the decision of this Tribunal in OA Nos. 473/2013 & 929/2014 dated 23.09.2016, it can be seen that this Tribunal had an opportunity to consider the constitutionality of the Rule 26(1) of the CCS (Pension) Rules, 1972 and after elaborately discussing the various contentions raised in the said OAs which are similar in this case and also referring to decisions in State of Kerala Vs. Varghese reiterated in 2016 (1) KLT 175 and the decision in Union of India and others Vs. Braj Nandan Singh – (2005) 8 SCC 325 had held that Rule 26(1) of CCS (Pension) Rules, 1972 is constitutional and it is not arbitrary or violative of any of the principle of fundamental rights.

The said decision has clearly discussed the various legal aspects of the case and difference between retirement, superannuation, voluntary retirement, compulsory retirement and resignation etc. and had discussed the difference between all these in service law. As regards the decision of this Tribunal in V.K.Samu Vs. Union of India and Others in OA No. 235/2018 dated 19.12.2018, it can be seen that neither the applicant nor the respondents had brought the various decision of the Hon'ble Supreme Court and the subsequent overruling of Varghese Vs. State of Kerala in Writ Appeal No. 949 of 2014 (reported in 2016 (1) KLT 175). The Division Bench of the Hon'ble High court while dealing with similar provision has clearly held that said provision of forfeiture for past service is not in violation of any fundamental rights and the decision of the Single Bench in Varghese Vs. State of Kerala was overruled. The above decisions were not brought to notice of the Single Bench of this Tribunal and the said order happended to be passed on 19.12.2018. The respondents in this case had produced the Division Bench ruling of this Tribunal and the various cases wherein the difference between voluntary retirement and resignation were discussed. We found merit in the contentions of the respondents in this case since this Tribunal had already found that Rule 26(1) of CCS (Pension) Rules is not violative of the any of the fundamental rights and hence, it is not unconstitutional. Since the said decision had become final we are bound to follow the said decision.

Accordingly, we find that there is no merit in various contentions raised by the applicant in the case. Hence, OA will stand dismissed.