Gujarat High Court
S Selvaraju vs National Dairy Development Board on 23 July, 2018
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/15191/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15191 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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S SELVARAJU
Versus
NATIONAL DAIRY DEVELOPMENT BOARD
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Appearance:
MR HEMANG M SHAH(5399) for the PETITIONER(s) No. 1
MR.D.L. DAVE with MR JIGAR M PATEL(3841) for the RESPONDENT(s) No.
1
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 23/07/2018
ORAL JUDGMENT
1. The present writ petition has been filed by the petitioner praying for following reliefs, Page 1 of 9 C/SCA/15191/2012 JUDGMENT "26(A) Your Lorships be pleased to issue a writ of mandamus directing the respondent Board to accept the application dated 25.05.2010 filed by the petitioner under Voluntary Retirement Scheme 2010 and to pay the exgratia amount to which he is rightfully entitled to receive.
(B) Your Lordships be pleased to declare the action of the respondent Board of not accepting the petitioner's application for retirement under the Voluntary Retirement Scheme2010 as illegal and violative of Article 14 and 21 of the Constitution of India.
(C) Your Lordships be pleased to issue a writ of certiorari or any other application writ, order or direction to quash and set aside the decision of the respondent Board of rejecting the petitioner's application for retirement under the Voluntary Retirement Scheme2010.
(D) Your Lordships be pleased to issue a writ of mandamus directing the respondent Board to make good the loss of Rs.65,05,423/ suffered by the petitioner on account of not accepting his application for retirement under the Voluntary Retirement Scheme2010 and to pay interest at the rate of 18% per annum on the said amount.
2. The case of the petitioner is that the respondent Board has illegally denied his case under the Voluntary Retirement Scheme 2010.
3. Learned advocate Mr. Hemang Shah appearing on behalf of the petitioner has submitted that the petitioner had made an application for voluntary retirement under the Voluntary Retirement Scheme2010 promulgated by the Board vide Circular dated 10.05.2010. He has Page 2 of 9 C/SCA/15191/2012 JUDGMENT submitted that initially the scheme was in force up to 31.05.2010 and subsequently the same was extended by the board up to 31.07.2010. Learned advocate for the petitioner has contended that pursuant to the aforesaid scheme vide his application dated 25.05.2010, the petitioner opted for the benefits of the scheme. Learned advocate for the petitioner has invited attention of this court to the letter dated 22.10.2010, written by the petitioner to the Executive Director, NDDB, Anand seeking voluntary retirement under the Clause20(1) of the NDDB officers (Appointment, Pay and Allowances) Regulation 1988. He has further stated that three days thereafter on 25.10.2010, the petitioner requested the respondent authority to consider the case for voluntary retirement under the scheme instead of NDDB Regulation. Learned advocate for the petitioner has submitted that though the petitioner had clarified his intention to retire him voluntarily under the Voluntary Retirement Scheme2010, he has been illegally retired under NDDB Regulation. He has drawn attention of this court to various clauses of the scheme and he has submitted that the petitioner has been denied ex gratia amount as envisaged under the SubClause E to Clause2 of the scheme. He has also stated that the aforesaid decision was also rejected Page 3 of 9 C/SCA/15191/2012 JUDGMENT by the Board vide communication dated 26/30.12.2011. In view of the aforesaid, it is urged that the respondent may be directed to accept voluntary retirement approved under NDDB Regulation trough Voluntary Retirement Scheme2010 and further subsequent benefits may also be granted.
4. Per contra, learned Senior Advocate Mr.D.L.Dave for Mr.Patel appearing on behalf of the respondent has submitted that the present petitioner had requested to retire him under the voluntary retirement scheme, in view of the fact that he wanted to leave the organisation because of his personal/health problem and wanted to go to his native place. Learned Senior Counsel for the respondent has submitted that the petitioner was given ample opportunities in this regard and after giving him personal hearing, it was decided by him to opt for voluntary retirement under the Regulation instead of Voluntary Retirement Scheme2010 and the authority has acted in this regard.
5. He has invited attention of this court to the Clause5 of the circular dated 10.05.2010 which specifically states that "The Management reserves the right to accept or Page 4 of 9 C/SCA/15191/2012 JUDGMENT reject the request for voluntary retirement". Learned Counsel for the respondent has placed reliance on the affidavitinreply incorporating that the petitioner was not alone, whose request for voluntary retirement was turned down but the respondent had received in all 235 applications for voluntary retirement for its employees and out of the said applications, the respondent decided not to process of the applications of 28 employees keeping in mind the organisational requirement. He has submitted that the respondent authority has introduced the scheme with a view to see that the persons, whose services were no longer required by the respondent, could leave the organisation without causing any financial loss to him. It is asserted by Mr.Dave that the scheme did not confer any right to voluntary retire to those employees, whose services were essential for smooth functioning of the organisation. Thus, all the applications were scrutinised in order to filter such employees and accordingly the case of the present petitioner was not considered and allowed him to avail benefits under the scheme.
6. Having heard learned advocates for the respective parties. The issue which arises Page 5 of 9 C/SCA/15191/2012 JUDGMENT for consideration is that whether the petitioner can claim voluntary retirement under the NDDB office Circular dated 10.05.2010 promulgating Voluntary Retirement Scheme2010 as a matter of right.
7. It is not disputed fact that the present petitioner had made an application under the Voluntary Retirement Scheme on 25.05.2010. It is also not in dispute that on 22.10.2010, the petitioner made an application opting for retirement under NDDB Regulation particularly Clause 20 of Regulation, 1988. On 25.10.2010, the petitioner changed his mind and requested the authority to treat voluntary retirement under the VRS2010 instead of NDDB Regulation.
8. However, the vital aspect of the present matter is that the petitioner was personally heard on 09.11.2010 after he made aforesaid application dated 25.10.2011 and as per noting made by the concerned authority on the application which is at page61 that "I met Shri Selvaraju and heard him about this request. I have explained to him that is not possible and also gave the reasons. He has said he would opt to native as per rules. For information before we process his opting Page 6 of 9 C/SCA/15191/2012 JUDGMENT to native as per rules". Again on 15.11.2010, following endorsement was made "I have counseled Shri Selvaraju on why * does not apply in his case and he has accepted to opt for retirement under Regulation 20(1). However, considering his plea for waiver of notice period on health grounds and the fact that he had applied for VRS2010 in May which was denied, his notice period may be waived". On 15.11.2010, the specific note has been made after hearing the petitioner that he would like to accept voluntary retirement under the regulation that considering the plea for health ground and fact that he had applied for VRS2010 in May, which was denied and his notice period is waived.
9. Aforesaid notings are not denied by the petitioner by way of filing further affidavit. Thus, the aforesaid noting reflects intention of the petitioner that he would like to opt for voluntary retirement under Regulation instead of VRS2010.
10. Learned advocate Mr.Shah appearing for the petitioner has tried to dispute the same by inviting attention of this court to the letter dated 12.01.2010 addressed by the Page 7 of 9 C/SCA/15191/2012 JUDGMENT petitioner to the Board, wherein he has stated that he never met Mr.Ravi Sharma in connection with the application regarding VRS2010 and as denied that he was explained in person by the concerned Officer in this regard. Thus, aforesaid contentions raised by the petitioner are under the realm of disputed question of facts. However the fact remains that the petitioner has not controverted the aforesaid noting made by the concerned officer on his letter on 09.11.2010 and 15.11.2010 by way of any further affidavit.
11. The fact also remains that the petitioner had accepted all his retiral benefits and accordingly he had also waived his notice period which is reflected from the Office Orders dated 15.11.2010 at page 38,39 and 40 of this petition.
12. In view of the aforenoted facts as well as the intention of the present petitioner as reflected from the aforesaid communication as well as noting, this court is of the opinion that no case is made out by the petitioner for conferring him the benefits of voluntary retirement under the scheme since it appears that the petitioner has sought for voluntary retirement under the scheme after having Page 8 of 9 C/SCA/15191/2012 JUDGMENT accepted the voluntary retirement under the Regulation of Board. The entire subsequent exercise is nothing but after thought. It also comes out from the record that the Board has not processed his application on pick and choose method since all the applications were scrutinised by the board and only such cases which did not require acceptance, were denied and it is not that the petitioner, has been picked up for denying the benefit. It is reflected in the affidavit of respondent that 28 applications of such employee were not processed keeping organisational requirement. Thus, as per Clause5 of the circular, the management had absolute right to accept and reject the request for voluntary retirement of such employees.
13. In view of the above, the present writ petition is dismissed. Rule is discharged.
(A. S. SUPEHIA, J) Nabila Page 9 of 9