Rajasthan High Court - Jaipur
State Of Rajasthan And Ors. vs Achala Ram on 28 September, 2004
Equivalent citations: RLW2005(1)RAJ60, 2005(1)WLC796
Author: Ajay Rastogi
Bench: Ajay Rastogi
JUDGMENT Rastogi, J.
1. This appeal is directed against the judgment and order dated 26th April, 2001 passed by the learned Single Judge in Writ Petition No. 2843/2000 whereby the order Annex.3 dated 29th July 2000 was set aside and the State Govt. was directed to treat the petitioner to be in service and entitled to get 50% of the back wages.
2. The dispute lies within a narrow compass. The writ petitioner, who was holding the post of Compressor Driver, submitted application dated 1st May, 2000 (Annex.1) seeking voluntary retirement under Rule 50(1) of the Rajasthan Civil Services (Pension) Rules 1996 (hereinafter referred to as the 'Rules of 1996') stating therein that he may be voluntarily retired with effect from 31st July, 2000.
3. Before the application Annex.1 dated 1st of May, 2000 was to be given effect to on the prospective date i.e. 31st July, 2000, the writ petitioner submitted another application dated 24th May, 2000 (Annex.2) which was received in the office of the Superintending Engineer (Irrigation), Jakham Project Circle, Udaipur on 25th of May, 2000 and in the said application the petitioner stated that due to certain mental tension he had submitted application (Annex.1) seeking voluntary retirement, which may be treated to be withdrawn and the same may not be given effect to w.e.f. 31st July, 2000 as was requested by him. However, despite the application dated 24th May 2000 (Annex.2) having been received in the office of the appellant State, much before the effective date of his application for voluntary retirement i.e. 31st July, 2000, still he was served with the order dated 29th July, 2000, whereby he was relieved and retired from service w.e.f. 31st July, 2000.
4. The order Annex.3 dated 29th July, 2000, by which the writ petition was relieved from the post held by him despite the withdrawal application was received in the office of the appellant, much before the date on which the voluntary retirement requested by him was to be given effect to i.e. 31st July, 2000, was challenged by him by filing writ petition No. 2843/2000. The State Govt. filed its reply to the writ petition and in Para 5 submitted that the second thought for withdrawal of voluntary retirement given by the writ petitioner was examined by the Superintending Engineer i.e. respondent No. 2 in the writ petition and the same was rejected and this fact was known to the petitioner well before scheduled date of retirement. But except the averment made in the reply, no documentary evidence was placed on record to support the statement of fact mentioned in Para 5 of the reply.
5. The undisputed facts which emerge from the facts available on record are that the application for seeking voluntary retirement dated 1st May, 2000 (Annex.1) was to be given effect to from 31st July, 2000 and much before the effective date of retirement another application was submitted by the petitioner on 24th May 2000 (Annex.2) seeking withdrawal of his earlier application and despite the same the order was passed relieving the petitioner vide Annex.3 dated 29th July, 2000. Rule 50 of the Rajasthan Civil Services (Pension) Rules, 1996, which is relevant for the present purpose, is reproduced hereunder:
50. 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.
(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 automatically become effective from the date of expiry of the said period.
3(a) A Government servant referred to in sub rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefore;
(b) On receipt of a request under clause (a), the appointing authority . subject to the provisions of sub rule (2) may consider such request for the curtailment of the period of notice of three months on merits and it if is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months.
(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded form withdrawing his notice except the specific approval of such authority:
Provided that the request for withdrawal shall be made before the intended date of his retirement."
6. As per sub-rule (2) of Rule 50, Where the appointing authority does not refuse to grant permission for voluntary retirement before the period specified in the notice, the retirement is automatically becomes effective from the date of expiry of the said period. If sub-rule (2) is read with sub-rule (4) of Rule 50 of the Rules, it clearly contemplates that the employee if Has elected to seek voluntary retirement under Rule 50 of the Rules of 1996 and has given necessary notice to that effect, he can submit application with request for withdrawal but the same shall be made before the intended date of his retirement.
7. In the present case, the intended date of retirement was 31st July, 2000 and the withdrawal application was submitted by the petitioner by his application Annex. 2 was dated 24th May 2000, which was duly served in the office of the Superintending Engineer i.e. respondent No. 2 in the writ petition on 25th of May, 2000 and this is the specific averment made by the petitioner in Para 4 of the writ petition.
8. Their Lordships of the Supreme Court in Balram Gupta v. Union of India and Anr., (1), while examining similar controversy, observed as follows:-
"There was no valid reason for withholding the permission by the respondent. Therefore, the appellant is entitled to be put back to his job with all the consequential benefit being treated as in the job from March 31, 1981.
In the facts of the instant case the retirement from the government service was to lake effect at a subsequent date prospectively and that withdrawal was long before that date. Therefore, the appellant had locus poententiae. The dissolution of the contract of employment would be brought about only on the date indicated i.e. March 31, 1981; upto that the appellant was and is a Government employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation."
9. In the case of U.N. Srivastava v. Union of India and Anr., (2), the short question involved was whether the employee was entitled to withdraw the voluntary retirement notice of three months submitted by him on 3rd October 1989 which was to be given effect to on 31st January, 1990. The proposal was accepted by the competent authority on 2nd Nov., 1989 but thereafter and before 31st Jan., 1990 the employee withdrew his letter of retirement. The said request was not accepted by the State Govt. and the appellant writ petitioner approached the Tribunal. The Hon'ble Supreme Court, after examining the mailer held that even if a voluntary retirement notice Is moved by an employee and was accepted by the authority within the time fixed before the date of retirement is reached, employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The Hon'ble Supreme Court also applied the ratio, laid down in Balram Gupta's case (supra) and accordingly allowed the appeal and set aside the order of Tribunal as well as the authority, and directed the employer to treat the employee to have validly withdrawn his proposal to retire voluntarily. The net result of the order was that the employee was to be treated in service.
10. The aforesaid view has further been expressed by the Hon'ble Supreme Court in Shambhu Murari Sinha v. Project & Development India and Anr., (3). In the said ease, the option for voluntary retirement exorcised by the employee vide his letter dated 18th Oct., 1995 was accepted by the Management on 30th July, 1997 and the employee way not relieved from service and was allowed to continue. In service till 26th Sept., 1997, which for all practical purposes was the effective date as it was the date on which the employee was relieved form service but in the meantime he had already withdrawn his letter of voluntary retirement under his letter dated 7th August, 1997. The question which arose before the Hon'ble Supreme Court was whether it was open for a person having exercised the option for voluntary retirement to withdraw the application after its acceptance but before it is made effective? The Hon'ble Supreme Court, following the decision in Balram Gupta's case (supra) held that the resignation inspite of its acceptance can be withdrawn before the effective dale. The Supreme Court allowed the appeal and set aside the judgment of the High Court with the direction that the employee will be allowed to continue in service with all consequential benefits.
11. The consistent view of this Court as well as of the Hon'ble Supreme Court. is that before the effective-date as referred to by the incumbent in his application for seeking voluntary retirement, he is always within his right to withdraw the same and even if the authority competent has accepted his application before the application for voluntary retirement has to be given effect to, that will be of no consequence and such withdrawal is permissible, it is also in consonance with Rule 50(4) of the Rule of 1996.
12. The counsel for the appellant has urged that as per the finding which has been recorded by the learned Single Judge no statutory rule has been pointed out by which they could take away the substantive right of the writ petitioner to withdraw the. application for voluntary retirement whereas as per the scheme of Rule 50 once the application for voluntary retirement has been tendered it does not lie with the employee to withdraw the same without seeking prior permission of the competent authority and since the permission has not been granted, the authority was justified in passing the order Annex.3 dated 29th July, 2000 relieving him from service in view of the application Annex.1 by which he tendered voluntary retirement w.e.f. 31st July, 2000.
13. The argument raised by the counsel for appellants does not hold good in the light of Rule 50 sub-rule (2) read with sub-rule (4) of the Rules of 1996. Sub-rule (2) & 00 of Rule 50 of the Rules of 1996, if read together, clearly indicate that such employee, who has completed 20 years in service, may after giving atleast three months previous notice in writing to the appointing authority, which requires acceptance by the competent authority and if the authority docs not refused to grant permission for retirement before the expiry of the period specified in be notice, the retirement automatically becomes effective from the date of expiry of the said period and correspondingly under Sub-rule (4) the Govt. Servant who elects to retire can withdraw his application seeking voluntary retirement before the intended date of his retirement as reforred to by him in his application. In such a situation, the very submission made by the learned counsel for the appellants in devoid of any merit. We are also in agreement with the finding recorded by the learned Single Judge and which does, not call for any interference by this, Court.
14. No other submission was made by the appellants.
15. There is no merit in the appeal, the same is hereby dismissed. Parties shall bear their own costs.
16. The counsel for the respondent informs this Court that his client has attained the age of superannuation during the pendency of the present special appeal but his retrial benefits have not been released so far. If that is so, all benefits, which are due to him in terms of the order of the learned Single Judge, shall now be released within a period of two months from today, on the basis that he had superannuated on attaining the aye of superannuation.