@JUDGMENTTAG-ORDER
R.K. Gupta, J.@mdashThe petition has been filed by the Petitioner seeking writ of mandamus against the Respondents for counting his previous services, which he has rendered with the Allahabad University before his appointment with the Awadhesh Pratap Singh University, Rewa for the purpose of pensionary benefits.
2. The Petitioner has rendered his services with the Allahabad University for a period from 17.7.1964 till 23.3.1985. During this period, he has applied for the post of Professor without prior permission of the Allahabad University. The Petitioner was selected and appointed by the Awadhesh Pratap Singh University, Rewa by order dated 24.3.1985. Initial appointment of the Petitioner was on probation. The Petitioner, while working with the new University i.e. Awadhesh Pratap Singh University, Rewa submitted his resignation with his earlier employer i.e. Allahabad University by moving an application on 23.3.1987, the same was accepted on 24.3.1987. The Petitioner retired with his new employer w.e.f. 31.10.1997 and thereafter, applied for his pensionary benefits. The Respondents have not calculated, for the purpose of pensionary benefits, the services of the Petitioner, which he had rendered with his earlier employer i.e. Allahabad University and it is also the grievance of the Petitioner that the service which the Petitioner has rendered with the new employer i.e. Awadhesh Pratap Singh University, Rewa on probation, has also not been counted for the purpose of pensionary benefits.
3. Learned Counsel for the Petitioner has relied upon the circular/letter issued by M.P. Higher Education Grants Commission, which is placed on record as (Annexure P-5) to the petition. In the aforesaid letter, it is stipulated that the Higher Education Grants Commission of State of M.P. has agreed to count the previous services of an incumbent which he has rendered with the earlier University, if such University is either recognized or has been receiving the grants-in-aid. In the said letter there are three categories of employees; first category relates to the employees who had been working in the University and while working in the University, has applied to another University for his appointment after having acquired due permission; second category relates to the employees who have applied for the appointment with the new employer while working with the earlier employer and have been selected but no application was rooted. Third category relates to the employees who were on deputation with the recognized University and subsequently have been absorbed. Thus, the M.P. Higher Education Grants Commission has considered the eventuality in relation to all the three categories of the employees. The case of the Petitioner does not fall within categories 1 and 3 but is covered under category 2 as the Petitioner has forwarded his application for appointment to the new employer without prior permission of the earlier employer and has been selected. With reference to this category of the employees, the circular states that if such an employee is required to submit his resignation then such resignation would be a technical resignation and accordingly, the State Government has to take appropriate decision while examining the case on merit with regard to entitlement of the Petitioner for pensionary benefits by counting his previous services. In the present case, it is to be seen that Petitioner''s case falls within the second category and technical resignation was submitted by the Petitioner after his appointment and joining with the new employer and after his resignation was accepted by his previous employer, then he continues to be there and he is entitled to be given the benefit of second category of the employees for whom the benefit is conferred by letter (Annexure P-5).
4. In view of the aforesaid, in my opinion, the Petitioner shall be entitled for the pensionary benefits by counting his previous services which he has rendered with the Allahabad University.
5. On behalf of Respondents, though it was argued that the Petitioner''s lien was terminated with the Allahabad University and before his lien is terminated with the earlier University and Petitioner was appointed with the new University then the lien of the Petitioner continues to be at two places, therefore, Petitioner is not entitled to count his previous services for the pensionary benefits.
Submission in this regard is considered. It is to be seen that with regard to counting of previous services for the purpose of pensionary benefits, the lien certainly has to be counted of an incumbent after he submits resignation or he resigns. In the present case, the resignation of the Petitioner was accepted by earlier employer on 24.3.1987 and before termination of such lien, the Petitioner continues to be into employment of new University/employer but his lien is terminated with the previous employer only after his resignation is accepted. Merely because lien is terminated with the previous employer subseqently after the date of employment with the new employer, does not mean that services rendered by the Petitioner with the present employer shall be ignored. It is not the case of the Respondent that Petitioner had been working at both the places and has been receiving salary from both the places. But after the appointment of the Petitioner with the new employer, he has to apply for termination of his lien by way of resignation and it would certainly be a technical resignation in terms of circular (Annexure P-5) and therefore, the services of the Petitioner, rendered with the earlier employer, have to be counted.
6. Apart from the aforesaid, alternatively, it has also to be seen that initial appointment of the Petitioner with the new employer, was on probation. Rule 12 of M.P. Civil Services (Pension) Rules, 1976 reads thus:
12. Commencement of Qualifying service.-(1) Except for compensation gratuity, a Government servant''s service does not qualifying till he has completed 18 years of age, provided that nothing contained in this clause shall apply in the case of persons who were in service, on the date of commencement of these rules and in whose case a lower age limit has been prescribed.
(2) Subject to the provisions of these rules, qualifying service of Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
7. It is provided under Rule 12(2) of M.P. Civil Services (Pension) Rules, 1976 that subject to the provisions of these rules, qualifying service of Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Thus two years'' services, which the Petitioner has rendered with the new employer on probation from 24.3.1985, even otherwise has to be counted by the new employer.
8. In the present case on behalf of the State, reliance was placed on the order passed by the State Government (Annexure R-1) to submit that the period, for which the Petitioner was absent from Allahabad University and leave was sanctioned without pay after his technical resignation, cannot be counted for the purpose of pensionary benefits.
The aforesaid reason which has been given in letter (Annexure R-1) issued by the new employer, cannot be said to be correct acceptance of the scheme (Annexure P-5) issued by M.P. Higher Education Grants Commission because in the said circular (Annexure P-5), no restriction has been imposed that the employee, who had been working with his earlier employer, if appointed to the new post, then before he joins, he has to submit his resignation with his earlier employer. If there would have been bar of such nature in the circular/scheme of the State Government, then certainly the Petitioner would not have been entitled to count his services rendered by him during the time when he was absent with the earlier employer. It is not the case that employment under the previous employer is terminated lien of the Petitioner because of his absence but admitted fact is that earlier employer has accepted the resignation of the Petitioner, thereafter Petitioner was appointed in the new employment.
9. In view of the aforesaid, Respondents are directed to calculate the pensionary benefits of the Petitioner by counting his previous services which he has rendered from 17.7.1964 with Allahabad University. Necessary calculations shall be made and would be paid by the Respondents within 90 days from the date of furnishing certified copy of this order. Respondents are also directed to consider fixation of pensionary benefits of the Petitioner in terms of revision of pay scale time to time.
10. The writ petition is allowed to the aforesaid extent. No costs.
