Continuity Of Service For Pension Benefits Preserved When Technical Resignation Is Followed By Immediate Rejoining Without Break: Orissa HC

A Division Bench of the Orissa High Court comprising Justice Dixit Krishna Shripad and Justice Sibo Sankar Mishra held that continuity of service for pension benefits is preserved under CCS (Pension) Rules when an employee submits a technical resignation and immediately rejoins the same post under the same employer without interruption. Background Facts The employee was appointed as a Technical Officer in the IDVC Project at the National Institute of Malaria Research (NIMR) on a temporary basis. He was promoted within the same project to Research Scientist and later to Senior Research Scientist. He drew regular pay scales applicable to government employees. The employee was appointed to the regular cadre of Senior Research Officer at NIMR in 2007 after due selection process. On 15.03.2007, he submitted a letter of Technical Resignation from his temporary post. On the next day (16.03.2007) he reported for duty in the new regular post. He continued to work in the same office and under the same Director. Upon his retirement, the authorities refused to count his almost 19 years of temporary service from 1988 to 2007 for pension and terminal benefits. The authorities treated the break due to resignation as a discontinuation of service. Aggrieved, the employee challenged it before the Central Administrative Tribunal. The Tribunal directed the government to recognise his past temporary service as qualifying service for pension. Aggrieved by this decision, the Union of India filed the writ petition before the High Court of Orissa. It was argued by the Union of India that the employee's case did not constitute “Technical Resignation” because his resignation letter was never formally accepted by the competent authority. It was contended that in the absence of an official acceptance on record, his prior service under the IDVC Project could not be merged with his subsequent regular appointment for the purpose of terminal benefits. On the other hand, it was argued by the employee that his resignation was technical in nature. He had tendered his resignation on the afternoon of 15.03.2007, upon its acceptance he joined the regular post the very next morning. He continued under the same direction in the same office and to the same post, with the same table & chair. Therefore, the disconnect made out between the previous service and the subsequent regular service was fictional. Findings of the Court It was observed by the Court that the employee had submitted his technical resignation on 15.03.2007. The resignation letter and the joining report were addressed to the same authority, and the gap between the two letters was less than 24 hours. Therefore, when duty report of the employee was accepted without any objections, the Technical Resignation was deemed to have been accepted. It was held that a resignation takes effect once it is accepted even if such acceptance is not formally communicated. Acceptance of resignation need not always be by a formal written order; it can also be inferred from the conduct of the competent authority, amounting to tacit acceptance. It was noted that the employee served in the same office before being selected & after appointed on regular basis. Therefore, the resignation would take effect even in absence of formal acceptance. Relying upon the judgments in Krishna Kant Tiwari v. Kendriya Vidyalaya Sanghatana and Sh. Jitendra Kumar v. Indraprastha Power Generation Co. Ltd, it was observed that there is difference between ordinary resignation and the Technical Resignation. In the case of absolute resignation, there is break in service in the sense that employer-employee relationship ends for all purposes. In the case of Technical Resignation, there is a notional continuation of service in the same post. It was held by the Division Bench that the resignation tendered for joining another Government post through proper channel is a Technical Resignation, and the employee is entitled to continuity of service. Further the Rule 13 of the CCS (Pension) Rules, 1972 allows temporary service followed without interruption by a substantive appointment to be counted as qualifying service. It is further supported by Rule 26(2), which prevents forfeiture of past service when resignation is submitted to take up another appointment under the government. It was held that the previous temporary service of an employee has to be recognised along with regular service for the purpose of determining the terminal benefits. Lastly it was noted by the Division Bench that the employee had rendered nearly 19 years of uninterrupted, meritorious service which included difficult field postings. Also his appointment was not backdoor entry. Hence, denying him the benefit of past service for pension would be contrary to the principles of a welfare state. Finding no infirmity in the Tribunal's order, it was upheld by the...

Continuity Of Service For Pension Benefits Preserved When Technical Resignation Is Followed By Immediate Rejoining Without Break: Orissa HC

Namdev Singh

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