Allahabad High Court
Devendra Kumar Garg vs State Of U.P. And 2 Others on 21 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 467
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- WRIT - A No. - 12798 of 2020 Petitioner :- Devendra Kumar Garg Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anwar Hussain Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
By means of the present writ petition, the petitioner seeks to challenge the order dated 04.08.2020 whereby the Sub Divisional Officer, Goverdhan Mathura had refused to accept the notice dated 26.08.2019 given by him expressing his desire to voluntary retire from service. The representation dated 07.05.2020 moved by the petitioner seeking compliance of the order dated 05.03.2020 in Writ Petition No.3584 of 2020 has, thus, been rejected.
The petitioner gave a notice dated 26.08.2019, seeking to retire voluntarily from service. The reasons given therein was that the petitioner's wife had died much earlier and he needed to retire to discharge his family responsibility. It was also stated that the petitioner had completed 20 years of qualifying service and was aged above 45 years. As per the Fundamental Rules 56 (c) of the U.P. Fundamental Rules in Financial Hand Book (Vol. II, Part II to IV), (in short as the Fundamental Rules) his notice may be accepted and he be allowed to voluntarily retire.
When no decision was taken, a Writ Petition No. 3584 of 2020 was filed by the petitioner stating therein that during pendency of the application for voluntary retirement, the petitioner had been placed under suspension but no decision had been taken on his request to retire voluntarily. The said writ petition was disposed of with the direction to the competent authority to consider and take a decision in accordance with law. It was, however, clarified that the Court had not gone into the merits as to whether the request for voluntary retirement can be considered during the pendency of suspension or not and the said question shall be decided by the competent authority independently and in accordance with law.
It may further be noted that a show cause notice dated 27.11.2019 was served on the petitioner calling him to submit his explanation for remaining absent from duty from 10.10.2019 and dereliction in discharge of his official duties. The said notice was received by the petitioner on 02.12.2019 and 15 days time was sought to submit his written explanation. By an order dated 13.12.2019, the petitioner was placed under suspension. He, thereafter, approached this Court in the aforementioned writ petition seeking direction to the respondent to take a decision on the notice to voluntary retire. It may also be noted that a charge sheet dated 03.04.2020 has been served upon the petitioner and the disciplinary enquiry is going on.
It is vehemently contended by learned counsel for the petitioner that on the expiry of three months from the date of notice the petitioner stood automatically retire. The period of three months had expired on 26.11.2019, no disciplinary enquiry was either contemplated or pending against the petitioner on the date of the notice of voluntary retirement or during the said period. The disciplinary enquiry initiated against the petitioner after he had retired from service, thus, suffers from manifest error of law. It is vehemently contended that once a government servant gave a notice to the appointing authority expressing his desire to voluntary retire, on expiry of three months period of notice, if no decision is communicated to him, the retirement from service is automatic under Fundamental Rules 56 (c) & (d). Subsequent suspension order or disciplinary enquiry cannot be taken as a ground for refusal to accept the notice. In any case, the decision of the appointing authority to place the petitioner under suspension and subsequent initiation of enquiry is malafide, in as much as, the said action was taken only to deny permission for voluntary retirement to the petitioner.
The order impugned further cannot be sustained as entire service record of the petitioner was appreciated by the appointing authority while taking decision on the notice for voluntary retirement, which is impermissible. Second proviso to Rule 56 (d) of the Fundamental Rules has been placed before the Court to vehemently submit that the request of the government servant to voluntary retire can be refused only in case of contemplated or pending disciplinary proceedings. Rule 56 (c) has further been placed to submit that two pre-conditions mentioned therein for a government employee to retire voluntarily, i.e. being above 45 years of age and having qualifying service of 20 years, have been fulfilled by the petitioner. The respondent may, therefore, be directed to relieve the petitioner from duty treating him to have been voluntary retired on 27.11.2019, i.e. on the expiry of three months from the date of notice dated 26.08.2019.
Learned Standing Counsel, however, disputes the arguments of the learned counsel for the petitioner by placing Rule 56 (c) and (d) to submit that the government employee cannot retire prematurely without the decision of the appointing authority. The notice to voluntary retirement is only an expression of desire of the government servant. However, voluntary retirement cannot be claimed as a matter of right.
Having heard learned counsel for the parties and perused the record, it would be apt to read the language employed in Fundamental Rule 56 (c) and (d) which provide for the condition of compulsory retirement of a government servant and voluntary retirement from service. Relevant Rule 56 (c), (d) and (e) with the proviso and explanation attached to it are quoted as under:-
"56(c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of fortyfive years or after he has completed qualifying service of twenty years.
56(d) the period of such notice shall be three months:
Provided that
(i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before this retirement;
(ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:
Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted:
Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.
56(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this rule.
Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less;
Explanation. (1) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c), the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration
(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or
(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or
(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.
(2A) Every such decision shall be deemed to have been taken in the public..interest.
(3) The expression appointing authority means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as in the relevant Rules relating to retiring pension.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) of this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired.' A careful reading of the Rule indicates that clause (c) provides two conditions of premature retirement from government service. One is compulsory retirement of a government servant by a notice given by the appointing authority after he attains the age of 50 years. Second is that the government servant may voluntarily retire by notice to the appointing authority, after attaining the age of 45 years or 20 years of qualifying service. The period of notice in both the cases is three months as indicated in clause (d). First proviso to Sub- Rule (d) states that the period of notice may be reduced by the appointing authority. Second proviso further provides that the notice given by a government servant, against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority; provided further that in case a disciplinary proceedings is contemplated, the government servant shall be informed before the expiry of his notice that it has not been accepted. Third proviso further states that the notice once given by a government servant seeking voluntary retirement cannot be withdrawn by him except with the permission of the appointing authority. Sub-rule (e) of Rule 56 provides that the retiring pension and other retiral benefits would be available to the government servant who is allowed to retire under Rule 56. Proviso to Rule 2(e) of Rule 56 provides that it shall be open to the appointing authority to grant benefits of additional service of five years for the purpose of pensions and gratuity to a government servant who voluntary retires or is allowed voluntarily to retire under the Rules.
The explanation attached to Rule 56(e) makes it clear that the decision of the appointing authority under sub-rule (c) of Rule 56 requiring the government servant to retire shall be taken, if it appears to the said authority to be in public interest.
Thus, from the language employed in Rules 56 (c), (d), & (e) with the proviso and the explanation appended thereto, it is evident that retirement of a government servant by notice to the appointing authority under sub-rule (c) of Rules 56 is not automatic. The requirement of giving three months notice to voluntary retirement is only an indication of expression of his desire. On receipt of the said notice, it is required that the appointing authority shall apply its mind to see that the conditions of Rule 56 (c) & (d) are fulfilled. Even in case of any disciplinary proceeding being pending or contemplated, the appointing authority can allow a Government servant to retire voluntarily, if it decides to accept the notice. In case of a contemplated disciplinary enquiry, intimation is required to be given to a government servant before expiry of three months to inform that the notice has not been accepted.
The contention of the learned counsel for the petitioner that the retirement under Rule 56 (c) on expiry of three months from the date of notice is automatic, is not substantiated from the careful reading of the provision of the Rules 56 (c), (d) & (e). The words "may" before "by notice to the appointing authority voluntary retire at any time" in clause (c) cannot be read as "shall" to hold that the notice becomes effective after expiry of three months and the government servant would automatically retire. There is no deeming clause in the entire provision rather a careful reading of the same proves otherwise.
It is not possible for the Court to read something which has not been provided in the statute. Adding deeming provision in the statutory rules is not permitted. Had this been the intention of the legislature, it could have added a provision that in case of failure to communicate the decision by the appointing authority, the government servant would retire on expiry of three months from the date of notice. Language of the second proviso to sub-rule (d) of Rule 56 cannot be interpreted in the manner as has been read by the counsel for the petitioner. The words "may" in Sub- Rule (c) of Rule 56 only enables a government servant to give a notice to the appointing authority to express his desire to voluntarily retire. On the said notice the appointing authority has to take a decision as to whether the government servant fulfills the conditions of voluntary retirement and whether it is in public interest to allow him to retire.
The explanation to sub-rule (e) of Rule 56 has been interpreted by the Apex Court in State of U.P. & others Vs. Achal Singh reported in 2018 (17) SCC 578 and it is held therein that the explanation is applicable to both the exigencies, i.e. when government retires an employee or when an employee seeks voluntary retirement and in both the cases decision has to be taken in public interest. It was further held that the right of an employee to retire cannot be said to be absolute as in the case of resignation for the reason that the voluntary retirement is with retiral benefits. The decision under the Rules in the State of U.P. (Fundamental Rules 56) is to be based upon consideration of the public interest, whether it is a case of retirement by the government or a case of a government servant seeking voluntary retirement. It was stated that under Rule 56, as applicable in the State of U.P., notice of voluntary retirement does not come into effect automatically on the expiry of three months. Under the said rules, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.
The Division Bench judgement of this Court in Dr. Achal Singh Vs. State of U.P. & others reported in 2017 SCC Online ALL 2723 was reversed therein where the validity of the order passed by the State Government rejecting the application for voluntary retirement had been challenged. It was argued on behalf of the government employees therein that right to retirement in absolute term was conferred by the relevant rules and there was no provision to withhold the permission except in certain contingencies. Voluntary retirement came into effect automatically on expiry of the period specified in the notice. There was no question of acceptance of the request for voluntary retirement by the government when the government servant exercised his right under Fundamental Rules 56 (c).
All those arguments had been repelled by the Apex Court and it was held in para Nos. 10, 11, 27, 28 & 30 of the State of U.P. Vs Achal Singh (Supra):-
"10. Rule 56(e) provides that pension and other retiral benefits shall be available to every Government servant, who retires or is required or allowed to retire under the rule. Proviso to Rule 56(e) provides that appointing authority at its discretion may allow benefits of additional service of 5 years to such employees who voluntarily retires or is allowed voluntarily to retire under the rule for the purposes of pension and gratuity or of such period as he would have served if he had continued till the ordinary date of his superannuation.
11.The explanation attached to Rule 56 makes it clear that the decision of the appointing authority under clause (c) of Rule 56 to retire a Government servant shall be taken if it appears to be in public interest. The explanation is applicable to both the exigencies viz., when Government retires an employee or when an employee seeks voluntary retirement, not only when Government desires to retire an employee in public interest. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh is clear and precise.
27. In our considered opinion, under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.
28. In our opinion, the Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement. In view of the aforesaid dictum and what is held by this Court, we find that the prayer made to make a reference to a larger Bench, in case this Court does not follow the earlier decision is entirely devoid of merit as on the basis of what has been held by this Court in the earlier decisions, we have arrived at the conclusion. This Court has authoritatively laid down the law umpteen number of times.
30. It was also urged that the Rule 56(c) does not require the employee to give reasons for voluntary retirement. No doubt under Rule 56(c) there is no requirement for an employee to give any reason, however, while considering the prayer, the appointing authority has to keep in mind the public interest as provided in the Explanation attached to F.R. 56."
It is further relevant to record that in the instant case, the petitioner though gave a notice to voluntary retire from service on 26.08.2019 but he had absented from duties w.e.f 10.10.2019 as is indicated in the suspension order dated 13.12.2019 as also the charge sheet dated 03.04.2020. The disciplinary proceeding was initiated against the petitioner for unauthorized absence from duty and dereliction in discharge of his duties. The writ petition before this Court was filed in the month of March' 2020 with the simple prayer to issue a direction to the appointing authority to take a decision on the notice to voluntary retire, given by the petitioner. That means, the petitioner had treated himself to be in service even after expiry of three months from the date of notice, which in his case was 26.11.2019. It is, thus, difficult to accept the arguments of the petitioner that he stood retired from service on 26.11.2019 as no decision of the appointing authority was communicated by then.
A government servant who voluntary retires is entitled to pension and other retiral benefits. In sub-rule (e) of Rule 56 , the appointing authority has to take a decision on the benefits admissible to him for the purpose of pension and gratuity. Thus, a decision to accept the notice given under Sub-Rue (c) of Rule 56 is necessary to allow a government servant to retire voluntarily. If the arguments of learned counsel for the petitioner is accepted that the employee stood retired on the expiry of three months period, it will lead to an anomalous situation.
As in the instant case, if the application for voluntary retirement would have been accepted by the appointing authority on the subsequent representation moved by the petitioner, he would have retired from service on the date of acceptance of the notice and not on the date of expiry of the notice period itself. What would be the position or status of the petitioner as a government servant during the period from the date of expiry of the notice to the period upto the date of acceptance of the voluntary retirement notice by the appointing authority?
The petitioner either continues in service till the date of decision or does not continue in service on expiry of three months period. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a government servant would continue in service till the voluntary retirement notice is accepted. The argument that the petitioner stood retired on 26.11.2019 on the expiry of three months period is self-defeating. The petitioner himself had filed a writ petition in the month of March' 2020 seeking a direction to the appointing authority to take a decision on his application for voluntary retirement. The said writ petition was disposed of on 05.03.2020 with the direction to consider the application of the petitioner. The petitioner gave representation on 07.05.2020 to the appointing authority to comply the order of this Court to take a decision. He, thus, treated himself to be in service till a decision was taken on his notice.
Thus, it is clear that the petitioner was suspended on 13.12.2019 while in service. One of the charges in the charge sheet dated 03.04.2020 is that he remained absent from duty unauthorizedly from 10.10.2019. On the date of the decision on the notice for voluntary retirement, the disciplinary enquiry was pending against the petitioner. The appointing authority in its own wisdom had refused to accept the notice. In case of contemplated or pending enquiry, the notice is effective only if it is accepted by the appointing authority, as per the second proviso, sub-rule (d) of the Fundamental Rule 56. The decision of the appointing authority in refusing to allow the petitioner to retire voluntary being in accordance with the second proviso to Rule 56 (d) of the Fundamental Rules, cannot be said to suffer from any illegality.
In the totality of the facts and circumstances of the case, no merit is found in the writ petition. The same is, accordingly, dismissed.
Order Date :- 21.1.2021 Himanshu