Shri.D.Ganapathi Rao v. Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTION WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA AND THE HON'BLE JUSTICE SHAMPA DUTT (PAUL) WP.CT/47/2025 SHRI D. GANAPATHI RAO ... PETITIONER VS.

THE UNION OF INDIA AND OTHERS ... RESPONDENTS For the petitioner : Mr. Gopala Binnu Kumar For the respondents : Mr. Rakesh Kumar Reserved on : December 15, 2025 Judgment on : December 18, 2025 HIRANMAY BHATTACHARYYA, J.

1.

The petitioner has challenged the order dated September 18, 2025 passed by the Central Administrative Tribunal, Kolkata Bench, Kolkata, Circuit Bench sitting at Port Blair ( for short 'the Tribunal') in OA No. 351/1294/A&N/2024, in this writ petition. 2.

Before the learned Tribunal, the petitioner challenged the order of the Conservator of Forests (HQ) dated October 30, 2023, by virtue of which the petitioner's prayer for considering his case for grant of the Old Pension Scheme 1972 was rejected. The learned Tribunal, by the

order impugned, dismissed the Original Application (for short "O.A.") upon holding that the respondent authority rightly rejected the case of the petitioner for grant of Old Pension Scheme. 3.

Pursuant to publication of vacancy notices dated May 01, 2002 and May 17, 2002 for filling up the post of Peon under the Principal Chief Conservator of Forests, Andaman and Nicobar Forests, being the 6th respondent herein, the petitioner applied for the said post. The selection process for the post of Peon was stalled for a considerable period and in the meantime another vacancy notice was published on August 06, 2005 by the Director of Education, Andaman and Nicobar Administration being the 7th respondent for filling up the post of Primary School Teacher in different streams.

4.

Pursuant to the publication of the vacancy notice for filling up the post of Primary School Teacher, the petitioner applied for the post of Primary School Teacher in the last week of August, 2005. 5.

A written test for selection to the post of Peon under the 6th respondent was conducted in the year 2005 and the petitioner was declared successful in the said selection test. The petitioner was appointed as Peon under the 6th respondent vide order dated November 9, 2005. The petitioner joined to the post of Peon under the 6th respondent on November 10, 2005.

6.

While the petitioner was discharging the duties of the Peon, the result of selection process for the post of Primary School Teacher was published sometimes in the 3rd week of November, 2005 and the

petitioner's name appeared in the merit list. An appointment order dated November 21, 2005 was issued in favour of the petitioner for the post of Primary School Teacher.

7.

Immediately, thereafter, on November 22, 2005 the petitioner tendered his resignation from the post of Peon to the 6th respondent and the prayer for resignation was accepted by the 6th respondent with effect from November 28, 2005 vide letter dated November 25, 2005. 8.

The petitioner reported for duty as a Primary School Teacher at Government Senior Secondary School, Hut Bay on November 29, 2005. After appointment to the post of Primary School Teacher, the authorities treated the case of the petitioner under the National Pension System (for short, 'NPS').

9.

After discharging 15 years of service as a Primary School Teacher, the petitioner was promoted to the post of Graduate Trained Teacher (GTT) under the 7th respondent vide order dated March 05, 2020 and is still serving in the said post.

10.

In the meantime, the Government of India issued a Office Memorandum (for short "O.M") dated March 03, 2023 giving a one-time option to a certain class of Central Government civil employee to be covered under the CCS (Pension) Rules, 1972 (now 2021). 11.

Petitioner submitted a representation dated July 26, 2023 before the respondent authorities for considering his prayer for grant of Old Pension Scheme, 1972. Such prayer of the petitioner was rejected by the 6th respondent by an order dated October 30, 2023.

12.

Challenging the aforesaid order, the petitioner approached before the learned Tribunal by filing an Original Application which was registered as OA No. 351/1294/A&N/2024. The learned Tribunal, by an order dated September 18, 2025, dismissed the said application. Being aggrieved, the original applicant before the learned Tribunal has approached this Court.

13.

Mr. Gopala Binnu Kumar, learned advocate appearing for the petitioner contended that the O.M. dated March 03, 2023 was issued for allowing a one-time option to the Central Government Civil employees who have been appointed against the post or vacancy which was advertised prior to the date of the notification for NPS i.e December 22, 2003 and is covered under the NPS on joining service on or after January 01, 2004 to be covered under the CCS (Pension) Rules, 1972 (now 2021). He further contended that the petitioner exercised his option within the time limit stipulated in the O.M. dated March 03, 2023.

He submitted that though the petitioner joined the post of Peon under the 6th respondent after January 01, 2004 but the vacancy notice for the said post was issued much prior to December 22, 2003 and the petitioner is covered under NPS on joining the service after January 01, 2004. He thus contended that the petitioner is entitled to be covered under the CCS (Pension) Rules, 1972 (now 2021).

petitioner resigned from the post of Peon directly without applying technical resignation.

14.

Mr. Gopala Binnu Kumar, learned advocate for the petitioner further contended that the petitioner complied with the requirements for technical resignation and, therefore, the past services of the petitioner as a Peon under the 6th respondent ought to have been taken into consideration for extending the benefits of the O.M. dated March 03, 2023 to the petitioner.

15.

Mr. Gopala Binnu Kumar, learned advocate appearing for the petitioner places reliance upon an order dated September 04, 2025 passed by the Hon'ble Supreme Court in Special Leave Petition (Civil) 27139 of 2024 in the case of Shreya Kumari Tirkey vs. The State of Jharkhand and others in support of his contention that procedure being a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. 16.

Mr. Rakesh Kumar, learned advocate appearing for the respondent authorities contended that the O.M. dated August 17, 2016 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) clarified the principles governing "technical resignation" and the condition under which the past service may be counted. By drawing the attention of the Court to paragraph 2.1.2 of the O.M. dated August 17, 2016, Mr. Rakesh Kumar contended that the benefit of past service is allowed subject to fulfillment of certain conditions and one of such condition is

that the government servant should intimate the details of prior application(s) immediately at the time of their joining. 17.

Mr. Kumar, learned advocate appearing for the respondent authorities contended that the petitioner joined duty as a Peon on November 10, 2005 but at no point of time did the petitioner inform the department that he had already applied for the post of Primary School Teacher. He further contended that for non-compliance of the conditions laid down in paragraph 2.1.2 (i) of the O.M. dated August 17, 2016, the resignation of the petitioner cannot be said to be a "technical" one. He further contended that the petitioner applied for simple resignation from the post of Peon and for such reason the petitioner's past service as a Peon cannot be taken into consideration for determining his eligibility under CCS (Pension) Rules, 1972 (now 2021). 18.

Heard learned advocates appearing for the parties and perused the materials placed.

19.

It is not in dispute that the vacancy notices for the post of Peon under the 6th respondent were published sometimes in the month of May, 2002 inviting applications from the eligible candidates possessing the requisite qualification for filling up the vacancy to the post of Peon under department of Environment and Forest.

20.

It is well settled that a selection process commences with the issuance of a Recruitment Notification. Though the selection process for filling up the post of Peon under the 6th respondent was initiated much prior to the date of notification of NPS i.e. December 22, 2003 but the

petitioner was appointed to the post of Peon under the 6th respondent by a letter dated November 09, 2005.

21.

Record reveals that prior to joining the post of Peon under the 6th respondent, a vacancy notice was published on August 06, 2005 for filling up the post of Primary School Teacher. Petitioner duly participated in the said selection process and became successful. The appointment letter for the post of Primary School Teacher dated November 21, 2005 was issued to the petitioner after the petitioner joined the post of peon.

22.

It is not in dispute that though the petitioner joined the post of Peon after January 01, 2004 but the selection process for the said post was initiated long prior to December 22, 2003. The petitioner joined duty in the post of Peon under the 6th respondent on November 10, 2005 and immediately upon receipt of the appointment order for the post of Primary School Teacher dated November 21, 2005, tendered resignation before the 6th respondent from the post of Peon vide letter dated November 22, 2005 for joining the post of Primary School Teacher.

23.

The question that arises for consideration in the writ petition is whether the petitioner is entitled to the benefit of his past service as a Peon for deciding the eligibility to exercise option to be covered under CCS (Pension) Rules, 1972.

24.

For the purpose of deciding such issue, it would be beneficial to extract the relevant portion of the Office Memorandum dated August

17, 2016 which deals with the issue of "technical Resignation". The same is quoted below:- "2.1.2 This benefit is also admissible to Government servants who have applied before joining the Government service and on that account the application was not routed through proper channel. The benefit of past service is allowed in such cases subject to the fulfillment of the following conditions:

(i) The Government servant should intimate the details of such application immediately on their joining; (ii) The Government servant at the time of resignation should specifically make a request, indicating that he is resigning to take up another appointment under the Government for which he applied before joining the Government service, (iii) The authority accepting the resignation should satisfy itself that had the employee been in service on the date of application for the post mentioned by the employee, his application would have been forwarded through proper channel."

25.

Para 2.1.1 of the O.M. dated August 17, 2016 deals with a situation where a Government servant has applied through a proper channel for a post in the same or some other department, and, is on selection, required to resign the previous post for administrative reasons.

26.

Para 2.1.2 deals with cases where the Government servants who have applied before joining the Government service and on that account the application was not routed though proper channel. 27.

The petitioner applied for the post of Primary School Teacher before joining the post of Peon under the 6th respondent. Thus, the case of the petitioner shall be governed under para 2.1.2 and not 2.1.1 of the O.M. dated August 17, 2016.

28.

Paragraph 2.1.2 of the O.M. dated August 17, 2016 states that the benefit of the past service is allowed in cases of government servants who have applied before joining the government service and on that account the application is not routed through the proper channel subject to fulfillment of certain conditions. 29.

It is the specific stand of the respondent authorities that since the petitioner did not intimate the fact that he had applied for the post of Primary School Teacher immediately upon joining to the post of Peon, the petitioner failed to satisfy the condition laid down under Clause (i) of the paragraph 2.1.2 of the O.M. dated August 17, 2016. Thus, according to the respondents, the resignation of the petitioner cannot be said to be a "technical resignation" and, therefore, the benefit of past services will not be admissible. 30.

Paragraph 2.1.2 (i) of the Office Memorandum dated August 17, 2016 uses the word "immediately". The Black's Law Dictionary defines the word "immediately" to mean "without interval of time, without delay, straightway, or without any delay or lapse of time." When used in contract is usually construed to mean "within a reasonable time having due regard to the nature of the circumstances of the case" although strictly, it means "not deferred by any period of time".

31.

Going by the definition of the word "immediately" in Black's Law Dictionary, this Court finds that the said word can be used

either in a wider sense or a narrow sense. If a strict construction is given to such expression, the same would mean not "deferred by any period of time". However, applying the liberal construction, the word "immediately" would mean "within a reasonable period of time having due regard to the nature of the circumstances of the case. As to what should be the "reasonable period" would however, depend upon the facts and circumstances of the case and there cannot be a straitjacket formula for fixing the reasonable period. 32.

The object behind the O.M. dated August 17, 2016 is to extend the benefits of past service to the Government servants which is undoubtedly a beneficial one. Such administrative instructions must be interpreted in favour of the beneficiaries when it is possible to take two views. As per the definition of the word "immediately" in Black's Law Dictionary two meanings can be assigned to such expression - one used in a strict sense and the other in a liberal manner. The liberal construction of such expression would promote the object of the O.M. and the strict or narrow construction would frustrate the very purpose and object of the said O.M.

33.

Paragraph 2.1.2 of the Office Memorandum dated August 17, 2016 lays down the procedures to be complied with for extending the benefits of past service to an employee by treating the resignation as a "technical resignation". Going by the object of the said O.M., it is evident that the same is beneficial for the government servants.

34.

Therefore, the word "immediately" used in para 2.1.2 (i) of the O.M. dated August 17, 2016 should be interpreted in such a manner to lean in favour of extending the benefits under the said O.M. to the Government servants and not deprive them of such benefits. To the mind of this Court, the word "immediately" used in para 2.1.2(i) of the O.M. dated August 17, 2016 should be given a liberal and wider construction to mean "within a reasonable period of time having due regard to the nature of the circumstances of the case". 35.

The Hon'ble Supreme Court in Shreya Kumari Tirkey (supra) reiterated the well settled the proposition of law that the procedure being a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. It was further held therein that the aforesaid principle shall also apply to administrative instructions which have the force of law. 36.

From the aforesaid decision of the Hon'ble Supreme Court, it follows that administrative instructions which lays down the procedures should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.

37.

By applying, the aforesaid proposition of law, this Court is of the considered view that a strict interpretation of the word " immediately" would frustrate the very object of the O.M. dated August 17, 2016 and would encourage the authorities to use the same as a tool to deny justice or perpetuate injustice by any oppressive or punitive use, which is against the settled proposition of law.

38.

It is not in dispute that the petitioner applied for the post of Primary School Teacher prior to joining his duty as a Peon and within 11 days of the appointment to the post of Peon, the petitioner got the appointment order to the post of Primary School Teacher and on the very next date he communicated the fact to the 6th respondent that he had been selected for the post of the Primary School Teacher under the 7th respondent and tendered his resignation from the post of Peon. 39.

Considering the time interval between the date of joining the duties in the post of Peon and the date of appointment letter for the post of Primary School Teacher, which squarely falls within the expression "reasonable period of time", this Court is of the considered view that mere procedural defect of not giving intimation of the details of application for the post of Primary School Teacher after joining the post of Peon cannot defeat the right of the petitioner to the benefits of past service as per O.M. dated August 17, 2016. 40.

That apart, in view of the liberal interpretation of the word "immediately" used in para 2.1.2(i) of O.M. dated August 17, 2016, the intimation regarding details of the application for the post of Primary School Teacher was to be made within a reasonable period of joining the duties in the post of Peon. Though intimation about the details of the application for the post of Primary School Teacher was not given but it is not in dispute that the fact of selection to the post of Primary School Teacher was intimated vide letter dated November 22, 2005 i.e. within a fortnight from the date of joining the post of Peon. The

procedural defect of not intimating the details of application was cured by way of submission of the letter dated November 22, 2005. 41.

Since the date of joining the post of Peon was November 10, 2005 and the letter intimating the fact of selection to the post of Primary School Teacher was submitted on November 22, 2005, this Court holds that the letter dated November 22, 2005 shall be construed to be an intimation as required under Clause (i) of para 2.1.2 of O.M. dated August 17, 2016 and shall be deemed to have been given within a reasonable period of joining the post of Peon in the facts and circumstances of the instant case. To the mind of this Court, Clause No. (i) of para 2.1.2 of O.M. dated August 17, 2016 shall be deemed to have been satisfied in the instant case. That apart it is well settled that a mere procedural defect cannot defeat the right, flowing from a beneficial O.M.

42.

Mr. Rakesh Kumar, learned advocated would contend that resignation from a post would entail forfeiture of past services in view of Rule 26 of the CCS (Pension) Rules. This Court is not inclined to accept such submission as it has already been hold that the resignation of the petitioner from the post of peon squarely falls within the term "Technical Resignation" which allows benefit of past services. 43.

This Court therefore, holds that the resignation of the petitioner was a "Technical Resignation". Merely because of the fact that NPS PRAN number was not generated by the department of Forest in the

post of Peon cannot be a ground to deny the benefit of the Office Memorandum dated March 03, 2023.

44.

Accordingly, this Court holds that the benefits of past service of the petitioner should be taken into consideration for the purpose of deciding the eligibility of the petitioner to be covered under the CCS (Pension) Rules, 1972 (now 2021). The issue is thus answered in the affirmative and in favour of the petitioner.

45.

In the case on hand, the learned Tribunal held that the petitioner failed to fulfill the condition (i) of the Office Memorandum dated August 17, 2016.

46.

For the reasons as aforesaid, this Court is inclined to interfere with the impugned order.

47.

This Court has already held that the petitioner is entitled to the benefit of past service as a Peon under the 6th respondent. 48.

It is also not in dispute that after joining the service, the petitioner is covered under the NPS.

49.

For the reasons aforesaid, the order dated September 18, 2025 passed by the learned Tribunal and the order dated October 30, 2023 passed by the 6th respondent are set aside. The respondent authorities are directed to consider the prayer of the petitioner to be covered under the CCS (Pension) Rules, 1972 in terms of the Office Memorandum dated March 03, 2023 afresh and dispose of such representation by passing a speaking order in the light of the aforesaid observation and communicate the speaking order to the petitioner immediately

thereafter. The entire exercise shall be completed as expeditiously as possible but positively within a period of four weeks from the receipt of a server copy of this order.

50.

Accordingly, WP.CT/47/2025 stands disposed of. There shall be no order as to costs.

51.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( HIRANMAY BHATTACHARYYA, J. ) I agree.

( SHAMPA DUTT (PAUL), J. )