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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4470   OF 2014 (arising out of SLP(C)No. 32091 of 2012)

MADHUKAR  … APPELLANT

VERSUS

STATE OF MAHARASHTRA AND ORS.           … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. This  appeal  has  been  preferred  by  the  appellant  against  the  

judgment and order dated 23.04.2012 passed by the Division Bench of  

High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition  

No. 4736 of 2011.  By the impugned judgment and order, the High Court  

refused to grant pension to the appellant and dismissed the writ petition.  

Apart from the ground of delay, the High Court dismissed the case on merit  

on  the  ground  that  the  resignation  in  the  previous  service  was  not  

tendered by appellant with prior permission.  

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3. The appellant was appointed on 21.6.1950 in the Food Department  

at Dongargaon in District of Durg; the then ‘Madhya Prant Warhad State’  

and worked till  20.12.1954.   Thereafter,  he was appointed as Assistant  

Master, Upper Division in Normal School at Kondagaon, District Jagdalpur  

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where  he  functioned  between  22.12.1954  and  19.8.1956.   Since  his  

posting on 20.8.1956 he worked as Assistant Direct Inspector of School,  

Nagpur where he continued upto 9.10.1956. Thereafter, he was posted as  

Superintendant,  Chokhamela  Hostel,  Nagpur  from  10.10.1956  to  

26.06.1957.   Between  29.06.1957  and  30.04.1958  he  underwent  B.T.  

Training at Akola held by Education Department.  Thereafter, the appellant  

was posted as Superintendent, Government Chokhamela Hostel, Nagpur on  

1.5.1958 where he continued up to 10.12.1958.  He was posted as Social  

Education  Organiser  at  Mauda,  District  Nagpur  between  11.12.1958  to  

17.7.1960   when  he  tendered  a  resignation  from  the  service.   The  

resignation was accepted on 18.07.1960 by the Block Development Officer  

and  it  was  forwarded  to  the  Deputy  Director  of  Education.  After  its  

acceptance, on 18.07.1960, he joined Hislop College, Nagpur as Lecturer in  

absence of any refusal of letter of resignation .   

4. The Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter  

referred to as, “the Rules, 1982”) were not applicable to the teaching and  

non-teaching employees of the colleges. On -

24.5.1983,  the  appellant  retired  from  service  as  Assistant  Professor  

(Marathi) from Hislop College, Nagpur.  In between 1983 and 1986 pension  

of  the  appellant  was  finalized  but  the  service  of   the  appellant  from  

21.6.1950  to 18.7.1960 was not counted. The Government of Maharashtra  

by  Government  Resolution  No.NGC  1284/106150/  994/84)/VS-4  dated  

11.3.1992 decided to count past government service for computation of  

pension in respect of all employees retiring on or after 1.10.1982.  In view  

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of  such  Resolution,  though  the  appellant  was  entitled  to  get  his  past  

services counted for fixation of pension, the same were not considered.  

Being aggrieved, the appellant made representations followed by reminder  

dated  10.2.2000.  On  30.11.2005,  respondent  No.4,  the  Administrative  

Officer,  Higher  Education,  Nagpur  Division,  Nagpur  recommended  the  

appellant’s claim for refixation of pension to the respondent No.5, Senior  

Accounts Officer, Accountant General-II, Nagpur, Maharashtra.  Respondent  

No.5 in turn rejected the said recommendation.  On a representation made  

by  the  appellant,  the  Joint  Director  by  his  letter  dated  30.12.2005  

requested respondent No.2, the Director, Higher and Technical Education,  

Pune to  take into  consideration the services  rendered by the appellant  

between 21.6.1950 and 18.7.1960 for computation of pension in view of  

Government  Resolution  dated  11.03.1992.   In  spite  of  such  

recommendation made by the Joint -

Director,  no  action  was  taken.   The  appellant  then  preferred  the  writ  

petition  before  the  High  Court  which  was  dismissed  by  the  impugned  

judgment and order dated 23.04.2012.

5. Learned counsel for the appellant placed reliance on Rule 48(3) of  

the Rules, 1982 and submitted that an interruption between two spells one  

rendered under the Government and other under the College should be  

treated  as  automatically  condoned.   Further,  according  to  him,  the  

appellant  is  entitled  for  counting  the earlier  period  from 21.06.1950 to  

18.07.1960 for re-fixation of pension in terms of Government Resolution  

dated 11.3.1992.

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6. On the other hand, according to respondents as per Rule 46(1) of  

the Rules, 1982 the service of the appellant prior to 19.07.1960 were liable  

to be forfeited; as resignation entails forfeiture of past service.

7. In the case in hand, the appellant has claimed fixation of pension  

by  counting  the  earlier  period  of  service  in  the  light  of  Government  

Resolution dated 11.3.1992.  No such claim has been made under Rules,  

1982.  

8. The  Government  of  Maharashtra,  from  its  Education  and  

Employment Department issued Resolution dated 11.3.1992. Referring to  

its  earlier  Resolution  No.  NGC 1283/(865)  vs-4  dated  21.7.1983  it  was  

infomred that pension scheme shall also be made -

applicable  to  teaching  and  non-teaching  employees  in  non-agricultural  

universities and non-government colleges affiliated to it from 1.10.1982.  

For calculation of qualifying service under the said Resolution, the services  

rendered  in  grant-in-aid  non-government  colleges/higher  secondary  

schools/secondary schools are also to be taken into account.  In case, the  

employee  working  on  the  post  of  Lecturer/Professor  in  the  colleges  

affiliated  to  it  has  accepted  the  appointment  on  the  post  of  

Lecturer/Professor in Government service, in that event, his service on the  

post  of  Lecturer/Professor  in  non-agricultural  Universities  and  non-

government  colleges affiliated to the Universities  are to be counted for  

determination  of  pension  under  Government  Resolution  No.  SCT-1584/

(1567) Admn.-2 dated 17.10.1986.

Considering  the  above  aspects,  the  Government  by  resolution  

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dated 11.3.1992 decided as follows:

“3). Now the government issues the Order that, the previous  services  of  teaching/non-teaching  employees  retiring  from  non- agricultural  universities and grant-in-aid non-government affiliated  colleges rendered on any of post in government service, to which  the Government Pension Scheme is applicable, may be taken into  account for the purpose of pension.  Moreover, previous services of  employees retiring from government posts to which the Government  Pension Scheme is applicable, rendered in on teaching/non-teaching  posts  in  non-agricultural  universities  and  grant-in-aid  non- government colleges affiliated to it, may be taken into account for  the  purpose  of  pension.  This  Order  will  be  applicable  to  the  employees retiring on and after 1.10.1982.  However, the benefit of  previous service by condoning break in service will - be granted only if  there is compliance of Conditions contained in  Rule 48(1) of Maharashtra Civil Services (Pension) Rules.”

From the bare reading of the Resolution dated 11.3.1992, it is clear  

that  the  Resolution  is  applicable  to  the  employees  retiring  on  or  after  

1.10.1982.   

9. Admittedly,  the  appellant  retired  from  the  Hislop  College  on  

24.05.1983 i.e. after 1.10.1982; therefore, the appellant is entitled to the  

benefits in terms of Resolution dated 11.3.1992.  

10. Rule  46  of  the  Rules,  1982  relates  to  forfeiture  of  service  on  

resignation.  Under Rule 46(1) “resignation from a service or a post entails   

forfeiture of past services”.  Sub rule (4) of Rule 46 deals with the cases  

where the resignation shall not entail forfeiture of past services.  But the  

said Rule 46 is not applicable to the appellant as he neither claimed the  

benefit of pension under the said Rules nor he was paid pension in terms of  

the said Rules.   

11. As per paragraph 3 of Resolution dated 11.03.1992 the benefit of  

previous service by condoning break in service can be granted only if there  

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is  compliance of  conditions contained in Rule 48(1) of  the Rules,  1982,  

which reads as follows:-

“48. Condonation  of  interruption  in  service.-(1)The  appointing authority may, by order, condone interruptions in the  service of a Government servant:

Provided that-

(a)- (b)the interruptions have been caused by reasons beyond  

the control of the Government servant;

(c) the total service pensionary benefit in respect of which  will be lost, is not less than five years duration, excluding  one or two interruptions, if any; and

(d)the interruption  including two or  more interruptions,  if  any, does not exceed one year.

(2) The period of interruption condoned under sub-rule (1) shall  not count as qualifying service.

(3) In the absence of a specific indication to the contrary in the  service record, an interruption between two spells of civil service  rendered by a Government servant under Government, shall be  treated  as  automatically  condoned  and  the  pre-interruption  service treated as qualifying service.

(4) Nothing in sub-rule (3) shall apply to interruption caused by  resignation, dismissal or removal from service or for participation  in a strike.  

(5) The period of interruption referred to in sub-rule (3) shall not  count as qualifying service.”

12. As per Rule 48 (3) in the absence of a specific indication to the  

contrary in the service record, an interruption between two spells of civil  

service rendered by a Government servant under Government,  shall  be  

treated as automatically condoned and the pre-interruption services to be  

treated as qualifying service.  

13. In the case of the appellant, there is notional break in service. He  

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resigned from the Government service on 18.07.1960 and joined the post  

of  Lecturer  in Hislop College,  Nagpur on the same day i.e.  18.07.1960.  

Further, higher authorities have recommended to add -

the earlier period of service for determination of pensionary benefit. Being  

so,  in absence of a specific direction to the contrary in the service record,  

the interruption between two spells of service rendered by the appellant  

under  the Government  shall  be treated as automatically  condoned;  the  

earlier service rendered by appellant is to be counted  towards  qualifying  

service.   

14. In  view  of  the  provisions  of  Rule  48  read  with  Government  

Resolution  dated  11.3.1992,  we  hold  that  the  appellant  is  entitled  for  

counting the service earlier rendered between 21.06.1950 to 17.07.1960  

for determination of pension. The High Court failed to notice the relevant  

provisions and wrongly held that the appellant is not entitled to get the  

benefits of his past services in view of Rule 46(1) of the Rules, 1982, which  

is not applicable in the case of the appellant.  The High Court also erred in  

rejecting the claim on the ground of delay and failed to notice that the  

cause of action for grant of pension arises every month. In the present  

case  what  we  find  is  that  the  appellant  made  representation  at  an  

appropriate stage and such request was accepted by respondent No.4, the  

Administrative  Officer,  Higher  Education,  Nagpur  who  recommended  

respondent  No.5,  the  Senior  Accounts  Officer,  Accountant  General-II,  

Maharashtra to count the period and to take into consideration the fact  

that the appellant has rendered more than 33 years of service.  Even the  

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Joint Director -

by his letter dated 30.12.2005 recommended to respondent No.2, Director,  

Higher and Technical Education, Pune to count the period from 21.06.1950  

to 18.07.1960.  Thereby, the appellant also explained the delay in moving  

the High Court.  

15. For the reasons aforesaid,  we set aside the impugned judgment  

and order dated 23.04.2012 passed by the Division Bench of High Court of  

Judicature at Bombay, Nagpur Bench, Nagpur and direct the respondents  

to count the period of service rendered by the appellant from 21.06.1950  

to  18.07.1960  for  the  purpose  of  computation  of  pension  and  pay  the  

consequential  benefits  including arrears of  pension within  three months  

from the date of this judgment.  On failure, the respondents shall be liable  

to pay interest @ of 8%  from the date of filing of the writ petition till the  

amount is paid.   

16. The appeal is allowed with aforesaid observations and directions.  

No costs.  

………………………………………………….J.                     (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………….J.                (KURIAN JOSEPH)

NEW DELHI, APRIL 11, 2014.

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