ASHARAM KAIN Vs. STATE OF M.P.

JUDGEMENT

(1.) THE petitioner has approached this Court by way of filing writ petition under Article 226 of the Constitution of India seeking a direction to fix the pension of the petitioner, taking into account the full length of service of the petitioner in terms of the circular issued by the State Government. It is contended that the petitioner, who was initially appointed on the post of Assistant Auditor, Insurance and Local Accounts Audit, Bhopal, has given a notice for his voluntary retirement in terms of the circular issued by the State Government w.e.f. 30th November, 2006. Such a notice given by the petitioner under Rule 42(1)(a) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (herein after referred to as 'Rules') was considered and accepted and the petitioner was made to voluntary retired with effect from the date of notice vide order dated 28.11.2006. The petitioner was granted the benefit of retiral dues. His pension was fixed taking into account his services up to the date of voluntary retirement and after calculating the gratuity, the said amount was paid to him. He made a representation that in fact the entire length of service of the petitioner was required to be counted for the purpose of fixation of pension. He made a representation to this effect but the said application was rejected by the impugned order dated 11.07.2007, therefore, he was required to approach this Court by way of filing this writ petition. It is put forth that in view of the notification dated 7th April, 2006, if the amended provisions of Rule 42 A of the Rules are seen, the petitioner would be entitled to get the pension and gratuity counting the entire length of service, which should not be more than 33 years. The petitioner was, thus, entitled to the pension, which was to be computed taking into account his full length of service. Since this has not been done, the writ petition was filed.

(2.) CONTESTING the claim made by the petitioner, a return has been filed saying that since the petitioner has given a notice for voluntary retirement and since the same was accepted by the respondents, rightly the pension for the period the petitioner has worked with the State Government was fixed and disbursed to him. In terms of the amendment, such a benefit was not to be extended to the petitioner. By filing a rejoinder the petitioner has controverted such stand of the respondents and has contended that since the amendment was made with effect from the date of publication of the notification and since such a notification was already published before acceptance of notice of voluntary retirement of the petitioner, in terms of the amended provisions, the petitioner would be entitled to pension more than the pension sanctioned by the respondents.

(3.) UNDISPUTEDLY Rule 42 of the Rules aforesaid prescribes the mode of making of a notice of voluntary retirement by an employee. The period is already prescribed in the said provision. The amendment made in the Rules, which has been published on 7th April, 2006, inserted a new provision of Rule 42 A dealing with addition to qualifying service on voluntary retirement. The same is necessary to be reproduced for the purposes of interpretation, which reads thus :