Rajasthan High Court - Jaipur
Dr Satish Chandra Johari vs State Of Raj & Ors on 23 November, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.11383/2010 Dr. Satish Chandra Johari Versus State of Raj. & Ors. DATE OF ORDER : 23/11/2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Saransh Saini, for petitioner Dr. Vibhuti Bhushan Sharma, Dy. Govt. Counsel, for respondents
*** The petitioner is aggrieved by non-acceptance of application for voluntary retirement.
Counsel submits that at the relevant time, the petitioner was intending to contest election, thus, made application for voluntary retirement dated 20th May, 2010 (Annexure-2). The respondents refused the request almost after five months vide letter dated 14.10.2010. As per Rule 50 of Rajasthan Pension Rules, 1996, if application for voluntary retirement is not accepted or rejected within three months, it is to be treated as accepted automatically. In the light of the aforesaid, petitioner's case should be covered by the provisions of Rule 50 of the Rules.
Counsel for respondents, on the other hand, submits that notice for voluntary retirement was not as per the relevant Rule 50(1) which requires three months prior notice, whereas petitioner failed to give three months' notice, thus, application itself is not as per the rules which was later on rejected vide order dated 14.10.2010. The question of deemed acceptance after three months does not arise in a case where application itself was not made as per rules, thus, prayer made in the writ petition may not be granted.
I have heard rival submissions of counsel for parties and perused the record.
The petitioner made application on 20.05.2010 to seek voluntary retirement w.e.f. 05.08.2010. The period in between is less than three months, thus, notice for voluntary retirement was not as per Rule 50(1) of the Rules. For ready reference, Rule 50 of the Rules, is quoted hereunder:
50. Retirement on completion of 15 years qualifying Service (1) At any time after a Government servant has completed fifteen 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 therefor;
(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 if it 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 from withdrawing his notice except with the specific approval of such authority:
Provided that the request for withdrawal shall be made before the intended date of his retirement.
(5) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as defined under rule 45 of Rajasthan Civil Services (Pension) Rules, 1996, which the Government servant was receiving immediately before the date of retirement, and the increase not exceeding five years in his qualifying service under rule 51 shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity.
(6) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.
(7) If a Government servant seeks retirement under this rule while he is on leave not due, without returning to duty, the retirement, shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him.
(8) A Government servant who gives notice of voluntary retirement under sub rule (1) of rule 50 shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 15 years qualifying service for pension."
Perusal of sub-rule (1) of the Rules shows that notice period should be of not less than three months. In view of the above, application submitted by petitioner was not as per the Rules.
Learned Counsel for petitioner at this stage submits that it should be treated to be a case of deemed acceptance after period of three months of notice.
The argument aforesaid cannot be accepted because petitioner had given specific date for voluntary retirement which cannot be extended on presumptions. Counsel further made a reference of Rule 50(3) of the Rules which provides discretion with the respondents to pardon the period of three months' notice.
I have considered the aforesaid aspect also and find that discretion lies with the respondents to dispense with requirement of three months' notice. However, it has to be on the request of the applicant with justification. In the case in hand, no request was made to allow or to dispense with requirement of three months' notice by assigning reasons. In absence of the aforesaid, Rule 50(3) cannot be applied. The petitioner's application for voluntary retirement, thus, cannot be accepted under the deeming clause on expiry of three months' period. The rejection of application of the petitioner for voluntary retirement is vide letter dated 14.10.2010 and I find that voluntary retirement was sought to participate in the elections which have already taken place, thus, no justification now remains to grant prayer. The writ petition is, accordingly, dismissed. It is, however, made clear that dismissal of the writ petition will not preclude petitioner to make application for voluntary retirement in future, if reason exists.
[M.N.BHANDARI], J.
FRBOHRA/11383CWP2012.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.