S.J Mukhopadhaya, J.
1. 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 September, 1973 and, later on, at his request, was transferred and posted in the Commercial Taxes Department and joined Sales Tax Appellate Tribunal on 6th October, 1982. While in service, he suffered mental illness for which he had to proceed on medical leave from 1st September, 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 February, 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 August, 1987 to 29th September, 1987. In spite of issuance of fitness certificate, he did not join duty on 30th September, 1987. He was allowed extraordinary leave without pay and allowance and without medical certificate for the period from 30th September, 1987 to 27th July, 1988. He joined duty after expiry of the leave on 28th July, 1988. Subsequently, he submitted resignation on 2nd August, 1988 and requested to relieve him. The 1st respondent, by letter dated 9th December, 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 November, 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 December, 2004, 3rd February, 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 September, 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 v. Registrar General, High Court, Madras, in W.P No. 44724/02, dated 29th January, 2008, 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 Nadu Pension Rules relates to forfeiture of service on resignation except in certain cases, as quoted hereunder :—
“23. Forfeiture of service on resignation. — (1) Resignation from service or post entails forfeiture of past service:
Provided that a resignation shall not entail forfeiture of past service it it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(2) Interruption in service in a case falling under the proviso to sub-rule (1), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave or any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to the Government servant.”
6. In the present case, we find that the Petitioner proceeded on leave because of mental illness and submitted resignation letter on 2nd August, 1988. It is also not in dispute that the 1st respondent, by letters dated 9th December, 1988 and 4th May, 1989, instructed the petitioner to settle all the dues payable to the Government, and on payment of such dues, it was informed that the resignation of the petitioner was to be accepted, which was actually accepted after receipt of such dues by the State Government. Thus, it will be evident that the petitioner was allowed to resign for which permission was accorded by the State on Condition of payment of its dues. It is not the case of the respondent that the petitioner wanted to resign to join service in some other organisation and there was any proceeding for misconduct initiated against him. In fact, there was no allegation made by any of the respondents against the Petitioner.
7. In such a situation, a question arise whether the service of an employee can be forfeited if person asks for resignation on the ground of ill-health, which is allowed by the State. Under Rule 23, a person is entitled for all benefits if he is allowed to resign for appointment in some other post under the Government. The rule is silent with regard to resignation, if given on the grounds of illness or ill-health for which permission is granted by the competent authority. In case, if it is held that the person, who has resigned because of illness or ill-health, as at par with the class of employees, who resign for misconduct or any adverse record, and the class of employees, who resign to join other government organisation are kept in a separate class for grant of pensionary benefits, in such case one may doubt Rule 23 violative of Article 14 vis-a-vis those who resign for illness or ill-health and is accepted by the competent authority. Therefore, we hold that those who resign because of illness or ill-health and not because of any misconduct or adverse record and are allowed to do so by the State are entitled for the same benefit which is allowed to those who resign to join another service under the State. Comparing the employees who are allowed to resign because of illness or ill-health at par with those employees who resign because of misconduct or adverse record will be otherwise violative of Article 14 of the Constitution of India.
8. We, accordingly, hold that the Petitioner is entitled to all the benefits to which the employees are otherwise entitled to under the Proviso to Rule 23, i.e, those who have been allowed to resign to join some other post under the State. The respondents are, accordingly, directed to pay the petitioner the pension and gratuity with 8% interest p.a, within three months from the date of receipt/production of a copy of this order, in accordance with law, taking into consideration the years of service rendered by him with further direction to pay provident fund and other retirement benefits within one month from the date the petitioner submits appropriate application in the format prescribed by the State, failing which the Petitioner will also be entitled for 8% interest on the same. The Writ Petition stands disposed of with the aforesaid observations, but there shall be no order as to costs.
PBB