Central Administrative Tribunal - Allahabad
Sharad Kant Sharma vs M/O Human Resource Development on 22 February, 2023
(Reserved)
Central Administrative Tribunal, Allahabad
Bench Allahabad
****
Original Application No. 1065 of 2014
This the 22nd Day of February, 2023.
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Sharad Kant Sharma S/o late Ram Kumar Sharma, aged about 52 years,
R/o House No.484/63-A, Madho Bari, District - Bareilly.
...........Applicant
By Advocate: Shri A.D. Singh
Versus
1. Union of India through its Secretary, Ministry of Human
Resources & Development, Shastri Bhawan, New Delhi.
2. Commissioner, Kendriya Vidyalaya Sangathan, 18 Institution Area,
Shaheed Jeet Singh Marg, New Delhi - 110016.
3. Additional Commissioner (Adm.), Kendriya Vidyalaya Sangathan,
18 Institute Area, Shaheed Jeet Singh Marg, New Delhi 110016.
4. Deputy Commissioner, JNU Campus, New Delhi - 110067-01.
5. Administrative Officer (Estt.), Kendriya Vidyalaya Sangathan, 18
Institution Area, Shaheed Jeet Singh, Marg, New Delhi -110016.
6. Principal, Kendriya Vidyalaya No.3 IInd Shift, New Delhi.
...Respondents
By Advocate: Shri N.P. Singh
ORDER
Delivered by Hon'ble Mr. Justice B.K. Shrivastava, Member (J) This OA has been filed on 25.08.2014 for the following relief(s):-
Page No.1
"i. That this Hon'ble Tribunal be pleased to allow this O.A. and quash the impugned orders dated ⅝.10.2012 and 9/11.12.2012 (Annexure A-1 and A-2 to this O.A.) in compilation No.1.
ii. That this Hon'ble Tribunal be pleased to direct the respondents to provide the benefits of Voluntary Retirement of Service etc, with all other consequential benefits including the 18% interest per annum.
iii. That this Hon'ble Tribunal be pleased to grant such other relief, as the applicant might be found entitled to, in the facts and circumstances of the case.
iv. That the cost of the proceedings may kindly be granted in favour of the applicant."
2. It is submitted by the applicant that he was initially appointed upon the post of P.G.T. (Hindi) by K.V.S. Silchar Region on 07.09.1987 (Annexure A-3). He joined his duty on 12.10.1987 (Annexrue A-4). The Acting Assistant Commissioner, K.V.S., Silchar issued a memorandum dated 28.12.1987 (Annexure A-5) treating the appointment of the applicant as on trial basis subject to obtaining the training qualification within two years and the applicant submitted his acceptance (Annexure A-6) in this regard. As per the applicant, he submitted a notice (Annexure A-10) for voluntary retirement on 14.10.2011 before the respondent No.4 because 20 years of his service was completed. He requested to waive the period of notice and relieve him as earliest at least 25.10.2011 because of his selection in the other organization.
3. The applicant again submitted the representations dated 29.10.2011, 28.12.2011 and 31.12.2011 (Annexure A-11 to 13) and made the request for curtailing the three months salary to one Page No.2 month and it is also requested that if any due is upon the applicant that may be adjusted from the retiral dues. As per the applicant, the respondent rejected his prayer for voluntary retirement by impugned orders Annexure A-1 and A-2.
4. In the impugned order Annexure A-1, the respondents mentioned that the applicant served only 18 years, 02 months, and 08 days while the required period is 20 years. There are various dues of Rs.55,115/- upon the applicant.
5. It is submitted by the applicant that after regularization on 08.09.1993, his services should be counted for qualifying service from the date of initial appointment i.e. on 12.10.1987, but the Department committed the mistake by counting his services from 08.09.1993 meaning from the date of his confirmation. As per Rule 15 of CCS (Pension) Rules the period of probation shall be counted as qualifying service.
6. It is also submitted by the applicant that as per Rule 48 (1) (2) of CCS (Pension) Rules, after the expiry of the period of three months' notice, his VRS becomes effective from 13.01.2012. Therefore, he made another representation on 19/20.01.2012 to respondent No.6 to issue the necessary documents which are issued to the employee whom VRS is accepted and to provide the benefit of VRS and pending dues kept by KVS expeditiously so that the applicant may not suffer a lot. It is also submitted by the applicant that his period of suspension with effect from 22.11.2005 to 16.02.2007 has been treated as on duty and the pay and Page No.3 allowance for the period have been paid. Therefore, this period should be counted for qualifying service for voluntary retirement. It is also submitted by the applicant that according to Rule 15 of CCS (Pension) Rules, the service on probation shall be counted as qualifying service, therefore the service on probation of the applicant should be counted as qualifying service.
7. Applicant again submitted that Because the services of the applicant have been regularized w.e.f. 08.09.1993 after he acquired the professional qualification of B.Ed. as required by the respondents, therefore his service should be counted from the date of initial appointment. The respondents committed the mistake by rejecting his application for VRS. The VRS has already been affected after the period of three months because the respondents did not dismiss the application within the period of three months.
8. On the other side, the respondents opposed the application and submitted that Annexures A-1 and A-2 have been passed after due consideration. The applicant did not deposit the salary of three months and did not work during the period of three months. He is absconding from his duty from 22.12.2011. In this regard, the notice was also issued to the applicant. The service rendered before the date of confirmation cannot be counted as a qualifying service. The applicant was appointed on a temporary basis. The qualification of B.Ed. was essential. The period was extended and after a long time, he obtained the aforesaid degree of B.Ed. on Page No.4 08.09.1993, therefore his services should be counted from the date of acquiring the prescribed qualification.
9. The applicant cited the case of Prem Singh vs. State of Uttar Pradesh, Laws (SC) 2019-98 (Civil Appeal No.6798/19 decided on 02.09.2019) and draw attention towards Para-33 of the aforesaid judgment, which said :-
"33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment."
10. One primary objection also raised in the written argument submitted by the respondents that the applicant sought the quashing of Annexure A-2 dated 09/11.12.2012 but as per pleading/record there is no any order of the aforesaid date.
11. It appears that Annexure A-1 was passed on 05/08.10.2012 and the Annexure A-2 has been passed on 09/11.12.2013. Therefore, looking to the original documents it can be said that by a clerical mistake, the correct date has not been mentioned by the applicant.
Page No.5
12. It appears from the record that the applicant was appointed initially by letter dated 07.09.1987 (Annexure A-3). In the aforesaid letter in Para-4, it was stated that he will be on probation for a period of two years which may be extended upon successful completion of probation. He will confirm in his turn according to the availability of the permanent vacancies. But by order dated 28.12.1987 (Annexure A-5), the respondent modified the earlier order dated 07.09.1987 and it was mentioned that the appointment will be treated on "trial basis" subject to the condition that they should obtain the requisite qualification within two years from the date of his appointment on trial basis. The consent was sought from the applicant and by letter dated 15.01.1988 (Annexure A-6) the applicant himself give his consent. Therefore, it cannot be disputed that the applicant was initially appointed on trial basis and it was required to him to pass the B.Ed. examination and obtain the degree of B.Ed. within a period of two years.
13. It appears from the letter Annexure A-7 dated 22.06.1981 that in Para-3, it was mentioned that the services of teachers who acquired the requisite qualification will be regularized w.e.f. The date of announcement of the result of the examination of the training diploma/degree that he possesses. No doubt the applicant passed the B.Ed Examination on 08.09.1993, therefore his services have been regularized from the date of 08.09.1993. Page No.6
14. It will be useful to refer Annexure A-1 dated 05/08.10.2012 by which the payer for Voluntary Retirement has been denied by the respondent:-
"F.No.19044/KVDC3/2011/Admn/KVS(DR)/13714-15 Date: 05/8.10.2012 संयक् ु त आयक् ु त (प्रशा0) केन्द्रीय विद्यालय संगठन (म0 ु ) नई दिल्ली।
विषय: श्री शरद कान्त शर्मा, पी.जी.टी. (हिन्दी), केन्द्रीय विद्यालय, न03 दिल्ली छावनी के स्वेचिक सेवा निब्रति के संबध ं में ।
महोदय,
I am to refer to your letter
No.F.11011/6-1/2011-KVS(HQ)/PIC/10721 dated 10.09.2012 and this office letter of even no. dated 24.10.2011 and the correspondence on the subject cited above and to say that while going through the Service Book of Shri Sharad Kant Sharma as received from, KVS (RO) Dehradun and on the basis of information supplied by the Principal, Kendriya Vidyalaya No.3, Delhi Cantt in his letter No.FKV3DC/2012-13/607 dated 18.09.2012 and No.F.KV3DV/2012-23/602 dated 18.09.2012 it has been observed that:
1. Shr S.K. Sharma was initially appointed on trial basis and he joined his service as PFT on regular basis w.e.f. 08.09.1993 after he acquired professional qualification of B.Ed. As such his length of regular service as PGT w.e.f. 08.09.1993 after excluding the period of trial basis appointment and period of EOL on Private Affirs is 18 Years 02 Months and 08 Days.
2. From the Service Book it has also been observed that Shri S.K. Sharma was under suspension to August, 2009 (date of joining). This period has not been treated as duty or otherwise by the Competent Disciplinary Authority of KVS (RO) Guwahati while issuing order of penalty.
Thus it is clear that the length of service of Shri Sharad Kant Sharma, PGT (Hindi) is less than 20 Years and as such he is not eligible for the grant of voluntary retirement to him. Page No.7
3. Besides this Shri Sharma has to pay amount of Rs.53578/- (32080/- towards penal rent recovery + 3780/- Balance of TA advance of KV, Rajgarhi and Rs.17718/- towards balance of TA/DA advance cost of library books not deposited and also cost of missing camera of KV, Dharchula) and Rs.1142/- of LTC Emergency of Journey on 02.05.2011 and Rs.395 of LTC for block year 2010-11 of journey on 02.05.2010. In total, amount of Rs.55115/- is to be paid by Shri Sharma.
In view of above, it is informed that the request of shri S.K. Sharma for his voluntary retirement is not liable to be acceded to and cannot be acceded to because he has not completed required length of service of 20 years for the grant of voluntary retirement to him.
भवदीय (संतोष कुमार वर्मा) उपायक् ु त"
15. In continuation of the aforesaid letter A-1 and also upon the basis of the aforesaid letter, Annexure A-2 was issued on 09/11.12.2013 which was as under:-
" No.F.19031/8/2011-KVS(HQ)(Estt.II)/3863-68 Dated: 09/11.12.2013 Shri Sharad Kant Sharma, House No.63-A, Madhobadi, Bareilly (U.P.) 243005.
Sub: VRS from in r/o Shri Sharad Kant Sharma, Ex PGT (Hindi), KV No.3, Delhi Cantt. Reg.
Sir, I am to refer your representation dated Nil addressed to Hon'ble MOS, Ministry of HRD, Govt. of India, New Delhi on the subject cited above received in this office vide FTS No.132067 dated 18.11.2013 regarding voluntary retirement from the services of Page No.8 Kendriya Vidyalaya Sangathan, fixation of pay accriding to Sixth Pay Commisison and Grant of Senior Sclae etc. It is stated that as per records the length of your regular service as PGT w.e.f. 08.09.1993 after excluding the period of trial basis appointment and period of EOL on Private Affiaris is 18 years 02 months and 08 days. Your services was under suspension to August 2009. This period has not been treated as duty or otherwise by the Competent Disciplinary Authority of KVS RO Guwahati while issuing order of penalty to pay amount of Rs. 53,578/- (Rs.32080 towards penal rent recovery + 3780/- balance of TA Advance of KV Rajgarhi and Rs.17718/- towards balance of TA/DA advance, cost of library books not deposited and also cost of missing camera of KV Dharchula and Rs.1142/- of LTC emergency for journey on 02.05.2011 and Rs.395/-. In total amount of Rs.55115/- is to be paid by Shri Sharma. Shri Sharma was charge sheeted on 22.11.205 and 7.9.2006 and was imposed the penalty of censure. The personal file does not speak about treating the period of suspension as duty or otherwise. No proof of payment of LS&PC from NVS is recorded for the period of deputation.
In the light of above facts, his request for VRS cannot accepted by the competent authority because he has not completed required length of service of 20 years for the grant of voluntary retirement as per rules. Hence, his request for grant of voluntary retirement cannot be accepted, however, he is free to tender his resignation and the same will be considered and also will be accepted after its receipt from him along with refund of aforesaid amount.
This issues with the approval of the Competent Authority.
Yours faithfully (R.S. Bhatnagar) Administrative Officer (Estt.)"
16. Therefore, it appears that by the aforesaid letters, the respondents came to the conclusion that the applicant did not Page No.9 complete the period of 20 years, which was required for voluntary retirement. In the aforesaid letter, it is mentioned that :-
(i) the applicant was appointed on trial basis, therefore, after acquiring professional qualification B.Ed. on 08.09.1993, he become regular in service. Therefore, the period spent in trial basis cannot be counted for qualifying service.
(ii) Suspension period of the applicant has not been treated as duty.
(iii) Various amounts (Total 55115/-) are due upon the applicant.
17. In reference to the point-(i), it is submitted by the applicant's counsel that the respondents committed mistake by calculating the qualifying service from 08.09.1993. After acquiring the prescribed qualification of B.Ed., his services were regularized. Therefore, the period of probation since the initial appointment dated 12.10.1987 should be counted for the qualifying service. He draws attention towards Rule 15 of CCS (Pension) Rule (Annexure A-8). In the aforesaid rule 15, it is mentioned that the services on probation against a post if followed by confirmation in the same or another post shall qualify. As per the applicant, his services rendered before the B.Ed. qualification should be treated as services on probation.
18. Looking to the document submitted in this case the aforesaid argument cannot be accepted. The applicant was Page No.10 initially appointed by order dated 07.09.1987 (Annexure A-3). In the aforesaid letter in Para-4 it was mentioned that :-
"4. He/She will be on probation for a period of 2 years which may be extended. Upon successful completion of probation he/she will be confirmed in his/her turn according to the availability of permanent vacancies. "
But the aforesaid order was withdrawn and as per the order dated 28.12.1987 (Annexure A-5), it was clarified that the appointment will be treated as "trial basis". The letter Annexure -5 says:-
"Memorandum In partial modification of this Office Memorandum No.F.1-4/87/KVS-SR/6295-77, dated 07.09.87 and No.F.1-4/87-KVS(SR)/(5200-02 dated 07.9.87, the offer of appointment as PGT (Eng) and PFT (Hindi) issued to Shri Tarkeshwar Prasad Gaur and Shri Sharad Kant Sharma respectively is treated as appointment ON TRIAL BASIS subject to the condition that he/they should obtain the requisite training qualification within 2 (Two) years of the date of his/their appointment on-trial basis. If he/they fails to obtain the training qualification within the aforesaid period their service will be terminated without any notice, as per the KVS norms and rules.
If thye are agreable to the above condition, their acceptance may be furnished to the Principals concerned with a copy to the undersigned, immediately. "
19. As per the aforesaid letter, consent was also required and the applicant himself gave the consent Annexure A-6 in the following words:-
Page No.11
"महोदय, प्रार्थी को कार्यकारी उपायक् ु त (सिल्चर क्षेत्र) के0वि0 संगठन, के द्वारा प्रेषित (दिनाँक 2812.87) पत्र (पत्रांक 1-4/87-KVS (SR) 8355-59) आज दिनाँक 15.01.1988 को कार्यालय से प्राप्त हुआ है , जिसके अनस ु ार उसकी नियक्ति ु पी.जी.टी (हिन्दी) पद हे तु सशर्त ट्रायल आधार पर हुई है ।
प्रार्थी पत्र में उल्लेखित समस्त शर्तो को विनम्रतापर्व ू क स्वीकार करता है , जिसके अनस ु ार यह कार्यभार ग्रहण करने की तिथि से दो वर्षो की अवधि के दौरान ही बी.एड- परीक्षा उत्तीर्ण करने के लिए बाध्य है ।
धन्यवाद।"
20. Therefore, it appears that the first order was canceled and the services have been treated as on trial basis. The applicant was not appointed simply for a probation period. The conditional appointment was given because for the aforesaid post, essential qualification of B.Ed. was required. If the aforesaid qualification not acquired by any candidate then his services are liable to be terminated. Hence, the period of trial basis cannot be equated with the probation period. The applicant himself passed the aforesaid examination after a long time on 08.09.1993, thereafter his services were regularized w.e.f. 08.09.1993.
21. The applicant submitted Annexure A7 dated 22.06.1981 issued by Kendriya Vidyalaya Sangathan. In this letter, several directions were given. It is mentioned that the teachers appointed before 1077-78 are still on trial basis because they did not acquire the prescribed qualification. Further, one year period was given to them by the aforesaid circular. Again it is also mentioned in the aforesaid circular that the other teachers, who did not obtain the Page No.12 aforesaid qualification, they should obtain strictly within the period of three years.
22. In Para (iiii), of the aforesaid circular it is stated that the services of teachers, who acquired the requisite qualification are required to be regularized w.e.f. The date of announcement of the result of the examination from the training deploma/degree, which he possess. According to this rule, the applicant was regularized on 08.09.1993. Paras (v) and (vi) of the aforesaid circular are also relevant. It will useful to quote the aforesaid para as it is:-
"v) With regard to the seniority of teachers appointed on trial basis it is clarified that seniority of all such teachers would count only from the date of announcement of the result of the examination form the training degree/diploma, which he/she passes. The period of trial service required by him/her prior to possessing requisite qualifications will count for the purpose of probation. While forwarding particulars of such teacher for inclusion in the seniority list the date of the announcement of the result of the Training Diploma/Degree which he/she has passed should be indicated as the date of their regular appointment. The names of teachers who are still on trial basis should not be sent to us for inclusion in the Seniority List.
vi) References are also being received seeking clarification about the crossing of E.B. of the Primary Teachers appointed on trial basis. As the service rendered by such teachers is not treated as regular service, it is clarified that such should not be allowed to cross E.B. till they acquire the requisite qualification. However, on their acquiring the requisite qualifications their cases for the crossing of the E.B. will be considered."
23. Therefore, it appears from the aforesaid provision that the Rule provides the procedure for seniority. According to the Page No.13 aforesaid rule, the seniority should be counted from the date of acquiring the required qualification of the period is not counted for seniority, then cannot be counted for qualifying service.
24. Therefore, in view of this court the respondnets' department did not commit any mistake by counting the qualifying service from 08.09.1993. The applicant did not pass the B.Ed. Examination before the aforesaid date. He was not appointed simply on probation. His appointment was on "trial basis" not on "probation" and the condition was also required to pass the B.Ed. examination. The applicant did not pass the aforesaid examination within the period of two years. After a long time, he passed the aforesaid examination, therefore, the services rendered before acquiring the requisite qualification for the post cannot be treated as services on probation and the aforesaid service cannot be counted as qualifying service.
25. The respondents also excluded the period of EOL on private affairs. This is also proper. The applicant did not show any reason against the aforesaid provision. If the leave has been taken for the personal ground then the aforesaid period cannot be counted as a qualifying period.
26. As for as the suspension period is concerned, the respondents did not mention the total period of suspension in the impugned order Annexures A-1 and A-2. In Para-2 of the Annexure A-1, the respondent mentioned "was under suspension to Page No.14 August, 2009 (date of joining)". But in this regard, the applicant himself mentioned in his OA that he was under suspension w.e.f. 22.11.2005 to 16.02.2007. The aforesaid period is not mentioned in the impugned Annexure A-1. But it is transpired from Annexure A-19 that the period of 22.11.2005 to 16.12.2007 has been treated as on duty and the duty pay and allowances for the aforesaid period are regularized. The order says:-
"Ref. No.F. 14-2/2007/KVS (GR)/23830-33 Dated: 30/01/2013 ORDER In continuation of this office order of even number dated 31.07.2009 and with reference to the KVS, Regional Officer, Dehradun Letter dated 17.01.2012, it is hereby ordered that the period of suspension of Shri Sharad Kant Sharma, i.e. w.e.f. 22.11.2005 to 16.02.2007 be treated as on duty and pay and allowances for the period be regularized accordingly.
His representation dated 10.01.2012 stands disposed of. "
27. Therefore, it appears that the period of 22.11.2005 to 16.02.2007 has not been mentioned in the impugned order. The respondents mentioned the period as only " August, 2009 (date of joining)". It is not sufficient. The date of suspension and the date of reinstatement both should be mentioned. Therefore, in this regard, Para-2 of Annexure A-1 is not acceptable.
28. As per the aforesaid discussion, it can be said that the applicant when submit the application for Voluntary Retirement did not completed the period of 20 years. Therefore, the department was not in a position to accept his Voluntary Retirement.
Page No.15
29. Now, we consider the second argument of the applicant. It is submitted by the applicant that his voluntary retirement become legally effective from 13.01.2012 because Annexure A-14, the application for voluntary retirement was submitted on 14.10.2011. The department did not accept the aforesaid application during the period of three months. Therefore, as per Rule 48-A (1) and (2) of CCS (Pension), voluntary retirement become automatically effective. The respondents opposed the aforesaid contentions and submit that the applicant did not give the notice for three months. His application was conditional, therefore, the aforesaid provision is not attract. The copy of the aforesaid Rule has been submitted by the applicant as Annexure A-14 . The relevant portion of Rule-48-A (1) and (2) is useful, which is as under:-
48-A. Retirement on completion of 20 years' qualifying service (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is -
(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes,
(ii) posted abroad in foreign based offices of the Ministries/Departments,
(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.Page No.16
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority :
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. ..................."
30. The applicant placed the reliance upon the proviso of Rule-2 in which it is provided that if the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said period.
31. The Rule-1 of Rule 48-A says that the government servant who completed 20 years of qualifying service may give the notice, but in this case, the applicant did not completed the aforesaid period, therefore, prima facie, he was not entitled to give the aforesaid notice.
32. F̀or the sake of argument, if it is presumed that the applicant completed 20 years of qualifying service then his application (Annexure A-10) does not qualify the requisite condition. As per the Rule-2 of Rule-48-A, the notice of voluntary retirement given under Sub Rule (1) shall acquire acceptance by the Appointing Authority. It means that if any government servant, who qualify a period of 20 years of service may submit the application in the shape of three months' notice and the Appointing Authority is authorized to accept the aforesaid application. The acceptance of appointing authority is mandatory subject to the condition of the Page No.17 proviso contained in Rule-2. The aforesaid provision may be applied when the simple notice of three months is given by the government servant. It is understood that the government servant is required to serve during the aforesaid period of three months or his leave should be prior sanctioned for the aforesaid period. In this case, neither any leave was sanctioned for the aforesaid period nor the applicant serve for the period of three months. It is an admitted position that the applicant absconded from the duty since 22.12.2011.
33. The application, Annexure A10 submitted by the applicant is also useful. Therefore, the entire application is referred as under:-
" ........... I the u/s hereby submit this notice for voluntary retirement from service, as I am in the receipt of an appointment letter for the Principal of Darwari Lal Sharma, Intercollege, Bareilly my selection for the same has been done by Madhyamik Shiksha Seva Chayan Board, Allahabad U.P. for which i dully applied under intimation to ....
As, I have been asked to join duties of Principal by the latest of 25.10.2011, therefore I hereby request to kindly waive the period and kindly relieve me from the duties of P.G.T. at an earliest, so that I may join new job.
Further, I also hereby request to condone two months salary, as my dues are outstanding since long. I am drawing salary on the basis of tentative fixation, and I have two school going children, the elder one is in class XII and is taking coaching.
Further, I am ready to deposit one month salary.
Further, As my Service Book is missed by K.V.S. R.O. Dehradun, New Service Book is to be recasted, I request to kindly accept my VRS notice at an earliest, I hereby under take that I will not only assist for the preparation of my Service Book, but also I will wait till the Page No.18 service Book is recasted comprehensively and my dues and entitlements are dully decided by K.V.S. after VRS.
Therefore, once again I request to accept this VRS notice and kindly relieve me in the way so that I may join new job by the latest of 25.10.2011.
Thanking you, Sir
Encl: Appointment letter Faithfully yours
(Sharad Kant Sharma)"
34. It appears from the aforesaid application itself that the applicant submit the aforesaid application on 14.10.2011 and mention that he is required to relieve on 25.10.2011. He mentioned in the application for condonation of the three months notice period and it was mentioned that he is ready to deposit one month's salary. It was not the discretion of the applicant but it was under the power of respondents to condone the aforesaid period and for granting the exemption from depositing two months' salary. If any order is required from the respondents then the proviso cannot be applied. The proviso can only be applied in the simple case of notice in which three months of service is rendered by the applicant or the salary of three months is deposited by the applicant.
35. Another fact is also relevant that the request of voluntary retirement cannot be accepted if any dues are on the applicant.
In the impugned order Annexure A-1 in Para-3 the details of dues are mentioned. According to aforesaid details the total amount of Rs.55115/- was due upon the applicant. The applicant did not deposit the aforesaid amount. In place of deposition of aforesaid Page No.19 amount, he himself mentioned in Annexure A-11 (reminder) that due, if any, may be adjusted from the arrears. It means on the date when the applicant applied for voluntary retirement there was dues of the amount of Rs.55115/-. In that condition also the consent of the employer was necessary. Therefore, the proviso is not attracted.
36. The word "acceptance" has been used in Rule 48-A (2) of CCS (Pension) Rules and it has been said that the acceptance by the Appointing Authority is necessary. The word "acceptance" is similar to "approval". In the case of Sant Lal Gupta & Ors. vs. Modern Co-operative Group Housing Ltd. & Ors (2010) 13 SCC 336, the Supreme Court define the aforesaid wrod as under:-
"Approval means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication therefrom unless limited by the context of the Statute. There can be no quarrel with the settled legal proposition that if a statute provides for the approval of the higher Authority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable."
Therefore, it appears that in the case of conditional application, approval by the competent authority was necessary. The request cannot be operated/ enforced after the expiry of three months period. The facts of this case are similar to the fact of Vijay S. Sathave Versus Indian Airlines Ltd. & Ors. Special Leave Petition © Nos. 24220-24221 of 2007 (SC) September 6, 2013. Page No.20
37. In the aforesaid case of Vijay S. Sathave, the Airlines introduced the scheme of VRS, in which required period was 20 years and three months' notice was necessary and the condition was mentioned that the approval of the competent authority is also necessary. In that case, the petitioner completed 20 years of service on 19.03.1992, thereafter, he got the promotion on 30.08.1994. On 07.11.1994, he submitted an application seeking VRS w.e.f. 12.11.1994. The department informed on 11.11.1994 that he should continue in service till the time decision is taken. However, the petitioner did not attend the duty after 12.11.1994. He joined another service and worked there from 12.11.1994. The Hon'ble Supreme Court treated the aforesaid absence seriously and called the act of the applicant is "voluntary abandon". The court took the notice of previous cases and stated in Para-8 to 13 as under:-
"8. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12.11.1994. In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear cut case of voluntary abandonment of service and the petitions are liable to be dismissed.
9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
10. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567, this Court held as under:Page No.21
"......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."
(See also: Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar & Anr., AIR 1974 SC 1896).
11. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service.
(See: State of Haryana v. Om Prakash & Anr., (1998) 8 SCC 733).
12. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr., AIR 1964 SC 1272 while dealing with a similar case, this Court observed :
"Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
A similar view has been reiterated in G.T. Lad & Ors. v. Chemicals and Fibres India Ltd., AIR 1979 SC 582.
13. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant, AIR 2006 SC 2304; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC
462. Therefore, The facts are similar in the present case, the applicant submitted an application on 14.10.2011 and before the expiry of the three months period, he absconded from duty w.e.f. Page No.22 22.12.2011. Therefore, looking to the aforesaid established law, the applicant was not entitled to voluntary retirement.
38. Hence, looking to the aforesaid discussion, it appears that the provision of Rule 48-A (2) is not attract in the case of the applicant, because neither he deposited the three months' salary nor the leave was taken for three months before submission of the afaoresaid application and there was several dues upon the applicant. In the aforesaid condition, voluntary retirement can only be effective after the consent of the employer.
39. Therefore, looking to the aforesaid, OA No.1065/2014 is dismissed. No costs.
(Justice B.K. Shrivastava) Member (J) Sushil Page No.23