Central Administrative Tribunal - Delhi
Shishir Priyadarshi vs M/O Personnel,Public Grievances And ... on 15 October, 2025
Item No. 27/C-1 1 OA No. 490/2016 with OA No. 497/2016
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 490/2016
with
O.A. No. 497/2016
Reserved on: 22.09.2025
Pronounced on: 15.10.2025
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
O.A. No. 490/2016
Shishir Priyadarshi, IAS
S/o Late Mr. Naresh Sharma
R/o A-1/6, Panchsheel Enclave,
New Delhi-110017 ... Applicant
(By Advocate: Mr. Vimal Kirti Singh with Ms. Nandita Seth)
Versus
1. Union of India
Through its Secretary
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel and Training,
North Block, New Delhi
2. State of Uttar Pradesh
Through its Chief Secretary
UP Civil Secretariat, Annexe Bhawan
Government of Uttar Pradesh,
Lucknow-226001
...Respondents
(By Advocate: Mr. Hanu Bhaskar)
2025.10.15
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Item No. 27/C-1 2 OA No. 490/2016 with OA No. 497/2016
O.A. No. 497/2016
Atul Bagai, IAS (Age 57 years)
S/o Late Shri K.C. Bagai
R/o 4D/27, Old Rajendra Nagar,
New Delhi -110060 ... Applicant
(By Advocate: Mr. Vimal Kirti Singh with Ms. Nandita Seth)
Versus
1. Union of India
Through Its Secretary,
Ministry of Personnel, Public Grievances & Pensions,
Department Of Personnel and Training,
North Block, New Delhi
2. State of Uttar Pradesh
Through its Chief Secretary
UP Civil Secretariat, Annexe Bhawan
Government of Uttar Pradesh,
Lucknow - 226001
...Respondents
(By Advocate: Mr. Hanu Bhaskar)
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):-
The learned counsels appearing for both sides submit that the issues involved in the captioned Original Applications are identical in nature and arise from the similar set of facts and circumstances. In view of the said submission, and with the consent of the learned counsels for the parties, it is considered appropriate to hear and dispose of both matters together in order to avoid multiplicity of proceedings and the possibility of conflicting decisions. Accordingly, both the captioned Original Applications are being adjudicated by this common order. For the sake of convenience and ease of reference, O.A. No. 490/2016 has been treated as the lead case, and 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 3 OA No. 490/2016 with OA No. 497/2016 the facts narrated therein are being referred to while deciding both matters.
2. By way of the present O.A.(s) filed u/s 19 of the A.T. Act, 1985, the applicants, in para 8 of the O.A., have prayed for the following reliefs:-
"(i) Quash and set aside the Order No. 11019/05/2013-AIS-III dated 27th/28th August 2015, passed by the Respondent No. 1 under Rule 7 (2) (c) of the All India Service (Leave) Rules, 1955, whereby the Applicant herein has been deemed to have resigned from service with effect from 01st June, 2006
(ii) In the alternate to (ii) to grant the Applicant Voluntary Retirement from service with immediate effect and with full pensionary benefits;
(iii) Grant costs of this OA to the application herein, and
(iv) Pass such order/orders as may be deemed fit and proper in the interest of justice."
FACTS OF THE CASE AS STATED BY THE APPLICANT in OA 490/2016
3. The applicant is an Indian Administrative Service (IAS) officer of the 1980 batch, Uttar Pradesh cadre, who turned 50 years of age in October 2007. In January 2001, with the approval of Respondent No. 1 (DoP&T), he proceeded on foreign deputation to the South Centre, Geneva, for a UNDP project assisting developing countries in WTO negotiations. On 03.09.2004, his deputation was extended up to 31.05.2006. Thereafter, by letter dated 21.03.2007, Respondent No. 2 informed him that his request dated 25.04.2006 for a further two-year extension had been rejected by Respondent No. 1 and directed him to return forthwith, failing which major penalty proceedings would be initiated. On 08.05.2007, however, Respondent No. 2 again recommended to Respondent No. 1 that the applicant be granted cadre clearance for two more years (01.06.2006-31.05.2008). By letter dated 08.07.2008, he was directed to report back within a month. The applicant rejoined on 01.09.2008, when he was placed on compulsory wait. As no posting was given and he was engaged in writing a book on the impact of 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 4 OA No. 490/2016 with OA No. 497/2016 WTO decisions on Indian agriculture, he sought study leave till the end of 2009.
3.1 On 15.09.2010, in response to Respondent No. 2's letter dated 10.08.2008 directing him to report back within 15 days, the applicant requested permission to resume duties by December 2010. In the alternative, he sought permission to take voluntary retirement under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, if additional time could not be granted. Respondent No. 2 failed to act on the applicant's request within 90 days. Accordingly, in view of the settled legal position, subsequently accorded statutory recognition by insertion of Rule 16(2C) through the 2017 amendment, the applicant's voluntary retirement took effect automatically on the expiry of the 90-day notice period, i.e., on 15.12.2010, in the absence of any communication rejecting his request.
3.2 Despite the applicant's specific request for voluntary retirement, Respondent No. 2, by letter dated 18.10.2010, issued a show-cause notice under Rule 3(1) and (2) of the All India Services (Discipline and Appeal) Rules, 1969, and simultaneously served a charge sheet. Unaware that no formal acceptance was required and that the employer-employee relationship terminated automatically if no rejection was communicated within the 90-day notice period (i.e., by 15.12.2010), the applicant reported back on 16.12.2010 and remained on compulsory wait for two weeks, with no posting decided. In the meantime, pursuant to Respondent No. 1's directions dated 23.12.2010, Respondent No. 2, by letter dated 12.10.2011, nearly 10 months later, dropped the disciplinary proceedings initiated on 18.10.2010, but directed the applicant to report within 30 days, failing which fresh action could be taken under Rule 7(2)(c) of the All India Services (Leave) Rules, 1955, for alleged unauthorized absence. Acting under the mistaken impression created by the respondents that his voluntary retirement required formal acceptance and rejoining, the applicant reported for duty on 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 5 OA No. 490/2016 with OA No. 497/2016 16.12.2010 and again on 29.12.2011, while reiterating his request. He also sent reminders dated 11.11.2011, 26.07.2012, 15.04.2013, and 08.08.2013 requesting acceptance of his voluntary retirement.
3.3 However, ignoring both the applicant's request for voluntary retirement and the settled legal position that voluntary retirement is deemed to be accepted upon the lapse of the 90-day notice period, Respondent No. 1, by order dated 27/28.08.2015 under Rule 7(2)(c) of the All India Services (Leave) Rules, 1955, erroneously treated the applicant as having resigned from service with effect from 01.06.2006. Hence, this OA.
CONTENTIONS OF THE APPLICANT
4. Learned counsel for the applicant contended that the voluntary retirement of the applicant under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 took effect automatically on 15.12.2010, upon expiry of the 90-day notice period, as no communication rejecting the said request was issued within that period. Consequently, any subsequent order treating the applicant as deemed to have resigned is non est in the eyes of law, on the following grounds:
a. Learned counsel submitted that under certain service rules, voluntary retirement takes effect automatically on expiry of the prescribed notice period, without the need for formal acceptance by the Government. This principle has been affirmed in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441; B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202; Union of India v. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76; State of Haryana v. S.K. Singhal, (1999) 4 SCC 293; and Union of India v. Arun Mishra, W.P.(C) 7917/2020 decided by the Hon'ble Delhi High Court. Conversely, in certain other rules, an employee has only a right to seek retirement, which becomes effective only upon express acceptance by the competent authority, as held in Himachal Pradesh Horticultural Produce 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 6 OA No. 490/2016 with OA No. 497/2016 Marketing & Processing Corporation Ltd. v. Suman Behari Sharma, (1996) 4 SCC 584. The applicant's case falls within the first category, where retirement takes automatic effect upon expiry of the notice period.
b. The above distinction was authoritatively elucidated by a three-Judge Bench of the Hon'ble Supreme Court in State of Haryana & Ors. v. S.K. Singhal, (1999) 4 SCC 293, particularly in paragraph 13, which summarises the legal position as follows:
"13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma ... there is no provision in the rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. ... What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee... before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance... nor can it be said that non-communication of acceptance should be treated as withholding of permission."
The Hon'ble Supreme Court thus drew a clear distinction between rules conferring an absolute right to retire, and those requiring express acceptance. In the former category, the retirement becomes effective automatically upon expiry of the notice period, unless a specific order withholding permission is both issued and communicated before that date.
c. Rule 16(2) of the All-India Services (Death-cum-Retirement Benefits) Rules, 1958 squarely falls within the first category. The said rule does not require any express acceptance or rejection after expiry of the notice period. The right to retire under the rule is absolute, subject only to the exception of a member being under suspension.This position has been affirmed by the Hon'ble Delhi High Court in Union of India v. Arun Mishra & Anr., W.P.(C) 7917/2020, para 24, holding that Rule 16(2) is pari materia with Rule 1802 (b) of the Indian Railway Establishment Code and Rule 56(c) of the Fundamental Rules, which were interpreted in Dinesh 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 7 OA No. 490/2016 with OA No. 497/2016 Chandra Sangma(supra) and Sayed Muzaffar Mir(supra). The relevant extract reads:
"24. ... the Supreme Court ... was of the view that where the Government servant seeks premature retirement, the same does not require any acceptance and comes into effect only on completion of the notice period. The Rule ... is pari materia with Rule 1802(b) of the Indian Railway Establishment Code and Rule 56(c) of the Fundamental Rules ..."
d. In Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441, paras 8 & 17, a three-Judge Bench, while interpreting Rule 56(c) of the Fundamental Rules, identical in language to Rule 16(2) of the Rules ibid held:
"8. ... There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F.R. 56(c)..."
"17. ... Since the conditions of F.R. 56(c) are fulfilled ... the appellant must be held to have lawfully retired as notified by him..."
This judgment establishes that once the notice period expires without rejection, retirement takes effect automatically, and the relationship of employer and employee stands severed.
e. Similarly, in Union of India & Ors. v. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76, paras 5-6, the Hon'ble Supreme Court held that any order rejecting voluntary retirement after expiry of the notice period is non est in law, the said paras are reproduced as under:-
"5. ... where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on completion of the notice period. ..."
"6. ... The period of notice ... having expired ... the order of removal passed thereafter was non est in the eye of law."
f. Accordingly, under Rule 16(2) of the Rules ibid, the discretion lies exclusively with the officer to seek voluntary retirement. There is no provision mandating prior approval or acceptance by the Government. The only permissible action by the competent authority is to reject such notice within the 90-day period. If no such 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 8 OA No. 490/2016 with OA No. 497/2016 rejection is communicated before expiry of the period, the voluntary retirement takes effect automatically.
g. Further, through the All India Services (Death-cum-Retirement Benefits) Amendment Rules, 2017, the Legislature codified this settled legal position by inserting Rule 16(2C), which expressly provides that where no order is issued before expiry of the notice period, the voluntary retirement shall automatically take effect upon expiry thereof.
h. The only exception to the automatic operation of Rule 16(2) of the Rules ibid is where the member of service is under suspension, in which case specific approval of the Central Government is required. Since the applicant was never under suspension, this exception does not apply.
i. Therefore, in light of the authoritative pronouncements of the Hon'ble Supreme Court, the applicant's notice of voluntary retirement dated 15.09.2010 took effect automatically on 15.12.2010. Upon such retirement, the employer-employee relationship stood terminated. Any order passed thereafter, particularly one treating the applicant as deemed to have resigned is, therefore, non est and without legal effect.
j. The applicant further relies on the decision of the three-Judge Bench in B.J. Shelat v. State of Gujarat & Ors., (1978) 2 SCC 202, paras 8 & 10, wherein it was held that even when the competent authority has the power to withhold permission to retire, such power must be exercised and communicated within the notice period. Unless such communication is made before expiry of the notice, the retirement becomes effective automatically. The Hon'ble Court observed:
"8. ... For the proviso to become operative it is necessary that the Government should not only take a decision but communicate it to the Government servant."
2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 9 OA No. 490/2016 with OA No. 497/2016 "10. ... it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire ..."
k. In the present case, the applicant's voluntary retirement could have been withheld only in two circumstances:
(i) if the competent authority had expressly rejected or withheld permission and communicated the same before expiry of the notice period; or(ii) if the applicant had been under suspension, which is admittedly not the case. Since no communication rejecting the applicant's request dated 15.09.2010 was ever issued within the 90-
day notice period, the voluntary retirement took effect automatically on 15.12.2010, and the subsequent orders passed thereafter are void and non est in the eyes of law.
4.2 Learned counsel further argued that mere issuance of show- cause/chargesheet for any alleged unauthorized absence does not constitute withholding or rejection of voluntary retirement; a specific order withholding or rejecting permission must be passed and communicated before expiry of the notice period. In this regard, learned counsel submitted as follows:-
a. It is well settled legal position that mere issuance of a show- cause notice or chargesheet for any alleged unauthorised absence does not by itself amount to withholding or rejecting a request for voluntary retirement. A specific order is required to be passed and communicated before expiry of the notice period. In B.J. Shelat vs. State of Gujarat, (1978) 2 SCC 202, paras 3-4,the Judicial Magistrate gave notice on 17.07.1973 to retire w.e.f. 03.12.1973, under Rule 161of the Bombay Civil Services Rules; though a show- cause was issued on 23.11.1973 and he was issued a charge sheet and suspended on 11.12.1973 and dismissed on 21.01.1976 by the Hon'ble High Court, the Supreme Court held that since no order withholding permission was communicated before 03.12.1973, i.e., before the expiry of the notice period, the authority lost jurisdiction to proceed against him after the expiry of the notice period.
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b. Similarly, in Union of India vs. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76, a suspended railway employee gave notice on 22.07.1985 under Rule 1802(b)(1) of the Railway Establishment Code, expiring on 21.10.1985. An order of removal was passed only on 04.11.1985, i.e., post 21.10.1985. The Hon'ble Supreme Court held that after the expiry of the notice period on 21.10.1985, the government servant stood voluntarily retired and the removal order passed thereafter was non-est in eyes of law.
c. Accordingly, in the present case, the Respondents' contention that mere issuance of a chargesheet amounts to rejection of voluntary retirement is baseless and contrary to settled law.
4.3 Learned counsel also argued that withdrawal of voluntary retirement must be unequivocal. Applicant's re-joining under directions from the Respondents does not nullify his voluntary retirement application and/or can be construed as waiver of his right to voluntarily retirement on the following submissions:-
a. The Respondents' contention that as the Applicant re-joined on direction of the Respondent, it negates his voluntary retirement after the expiry of the 90 days-notice period, is misconceived. Withdrawal of a voluntary retirement application must be clear and unequivocal. As submitted above, applicant re-joined only under the mistaken impression, created by the Respondents' own correspondence, that his voluntary retirement request would not be processed, unless he re-joined and got his leave regularized. The Respondents misled and compelled the applicant to comply with their directions. Therefore, it cannot amount to withdrawal of his application for voluntary retirement.
b. In Punjab & Sind Bank Vs. Mohinder Pal Singh, (2005) 12 SCC 747, a case wherein voluntary retirement request was withdrawn by the bank employee before acceptance by the bank, it was contended by the bank that since the subsequent to his withdrawal of request, employee had accepted the payment of 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 11 OA No. 490/2016 with OA No. 497/2016 certain amount in his bank account as part of the voluntary retirement scheme, it amounted to waiver of his right. It was held by the Hon'ble Supreme Court:-
"10. Waiver of a right implies his knowledge of the existing right. A person cannot be said to have waived his right unless it is established that his conduct was such so as to enable the Court to arrive at a conclusion that he did so with knowledge that he had a right, but despite the same acted in such a manner which would imply that he has waived the same.
17. The conduct of the applicant herein does not indicate any knowledge about the payment in his account or his wilful appropriation thereof as to constitute a waiver. The applicant had contended that even the Bank had acted in a discriminatory manner as in the account of certain employees some deposits had been made but in respect of others, no such deposits had been made. The said allegation also has not been denied."
c. Therefore, even though the applicant re-joined the service due to Respondent's blithe disregard of the rules and misleading directions, it cannot be construed to be a waiver of his right to voluntary retirement. Mere physical resumption of duties done under the misdirections of the Respondents that for acceptance of his voluntary retirement request, it was necessary for him to rejoin and get his leave regularised, does not amount to an intentional relinquishment of a known right. As clarified by the Hon'ble Supreme Court in Punjab & Sind Bank Vs. Mohinder Pal Singh, waiver requires clear knowledge of the right and deliberate conduct to forego it, which is entirely absent in the present case. The Applicant's compliance with the authorities' instructions (on a misconceived notion that joining and regularisation of leave is pre- requisite for granting VRS) was compelled by circumstances and cannot be treated as an implied abandonment of his voluntary retirement application.
4.4 Learned counsel further argued that the Respondent's contention of applicant's absence from duty during the notice period is unsustainable, as it does not abate an employee's right to voluntary retirement without rejection of the same within the 90-
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days notice period. In this regard, learned counsel made the following submissions:-
a. In State of Haryana & Ors. Vs. S.K. Singhal, (1999) 4 SCC 293, paras 5 and 20, the question whether an absence from duty during the notice period is a valid ground for refusing voluntary retirement was answered in the negative. It was held:-
"20. So far as the plea of the State in regard to absence from duty during the notice period is concerned, the High Court has shown that it is unsupportable on facts. In any event, in view of the express provision in the proviso to sub-rule (2) of Rule 5.32(B) referred to above requiring communication of rejection within the notice period, the said allegations of absence even if true, cannot help the State."
b. Accordingly, in the present case also, the allegation of absence during the notice period, even if assumed to be true, cannot defeat the applicant's right to voluntary retirement, in the absence of any rejection communicated by the competent authority within the stipulated 90-day period.
4.5 Learned counsel further argued that applicant's voluntary retirement notice was not conditional. There is no prescribed form for making an application for voluntary retirement. Contentions premised on technical defects are inconsequential. In this regard, learned counsel submitted as follows:-
a. The Respondents' assertion that the applicant's voluntary retirement notice was "conditional" is wholly misconceived. The notice was in the nature of an alternate request, not conditional, and therefore valid in law.
b. The Office Memorandum dated 20.09.2022 issued by the Ministry of Personnel, GoI [File No. 28/8/72-AIS(II), Pg. 2] explicitly states that there is no prescribed form for submitting a notice under Rule 16(2) of the AIS (DCRB) Rules, and that any defect in such notice is merely formal.
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"A notice under sub-rule (2) of Rule 16, addressed to the Central Government can be treated as valid as defect in the notice is only formal, and in the absence of a prescribed form, endorsing a copy of the notice amounts to addressing the notice."
c. This legal position has been affirmed in M.B. Mehta vs. State of Gujarat, 2011 SCC OnLine Guj 1908 [Pgs. 4-5], wherein a contention was raised that the voluntary retirement request is defective as it does not lay down any specific date from which it would be effective and further there is no reference of the notice period of 90 days. The Hon'ble High Court held:-
"In short, the contention is that the petitioner has not specified any date with effect from which his notice for voluntary retirement was to be effective. This contention is devoid of any merit. Though the petitioner has not specified any date with effect from which his notice for voluntary retirement was to be effective, it only means that it could be effective only on the expiry of three months from the notice and not earlier thereto. It is very specifically stated in the application (Annexure-'A') dated 2 November 1999 that the petitioner has already completed 20 years of service and it is not possible for him to return in near future. He has also stated that he was ready and willing to refund the amount of difference in the salary which may be calculated for the period during which he continued on leave without valid sanction or permission. Mere non-mentioning of three months would not invalidate the notice of retirement."
Thus, technical irregularities do not vitiate a valid voluntary retirement request.
4.6 Learned counsel submitted that the decision of the Hon'ble Delhi High Court in Sanjeev Singh Ahluwalia Vs. Union of India & Ors., W.P.(C) No.9540/2019 is inapplicable to the present case on the following grounds:-
a. It is respectfully submitted that the reliance placed by the respondents on Sanjeev Singh Ahluwalia Vs. Union of India & Ors. is wholly misplaced and is a desperate attempt to prejudice this Tribunal. The case has no application to the facts of the present case and is distinguishable. Firstly, in that case, the plea for voluntary retirement was never raised before this Tribunal nor was any relief sought therein.
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b. Secondly, the decision therein turned upon O.M. dated 25.11.1958, which lays down guidelines for acceptance of voluntary retirement under Rule 16(2A) of the AIS (DCRB) Rules, 1958, in cases where disciplinary proceedings for a major penalty are pending or contemplated and the disciplinary authority having regard to the circumstances of the case, is of the view that the imposition of the major penalty of removal or dismissal from service would be warranted, the notice of voluntary retirement given by the officer concerned may not ordinarily be accepted.
c. In the present case, the said O.M. has no application in the present case. The applicant's notice was under Rule 16(2), not Rule 16(2A). In fact, this OM was not applicable in Ahluwalia's case also as he also had given notice of retirement under sub-rule (2) of Rule 16.
d. Further, no disciplinary or vigilance proceedings were ever initiated or contemplated against the Applicant, as expressly confirmed by official communications dated 10.02.2012and 11.04.2013 granting vigilance clearance for applying to posts in PSUs.
e. In applicant's case, it has been categorically admitted by the State in its counter affidavit that no proceedings were initiated till 2014.
f. Moreover, in the present case, the respondents themselves have admitted that the impugned order deeming the applicant to have resigned under Rule 7(2)(c) of the AIS (Leave) Rules, 1955is purely administrative and not penal.
g. Importantly, there is not even a whisper in the Respondent's pleadings with respect to any invocation of the said O.M. SUBMISSIONS MADE BY RESPONDENTS
5. Learned counsel appearing for respondent no.1 by referring to the counter reply filed on 29.06.2016 submitted that the 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 15 OA No. 490/2016 with OA No. 497/2016 impugned order has been passed by the competent authority in accordance with relevant rules and instructions and the same does not suffer from any illegality and/or infirmity. Further, as regards cadre clearance for further request of extension from 01.06.2006 to 31.05.2008, the same was not approved by the Appointment Committee of Cabinet (ACC) and ACC further directed to:-
(a) The overstay of the officer on foreign deputation be treated as unapproved.
(b) the officer return to his cadre within one month, failing which major penalty proceedings be initiated against him.
(c) the settled implications of treating a period of stay as unauthorised will be applicable from 01.06.2006.
5.1 Accordingly, the State Govt. was requested, vide DoPT's letter dated 19.01.2007 (Annexure-R/4) to comply with the direction of the ACC and inform the replying respondent of the action taken. The State Govt. vide their letter dated 07.01.2008 informed that explanation had been sought from the applicant and the same had not been received. The State Govt., vide their letter dated 21.03.2007 (Annexure-R/-5) had conveyed the directions of ACC to the applicant, wherein he was directed to report back to the cadre for duty within one month as his further extension of foreign deputation from 01.06.2006 to 31.05.2008 has not been approved by the Appointment Committee of Cabinet, Govt. of. India. The State Govt., vide their letter dated 08.07.2008 (Annexure-R/8), again directed him to report back to the cadre for duty within one month, when he had not complied with directions issued vide their letter dated 21.03.2007, failing which departmental action would be initiated accordingly. However, he did not. Thus, he had already been communicated that ACC has not approved his further extension from 01.06.2006 to 31.05.2008 and to report back to the cadre accordingly. Thus, the plea that he was not communicated 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 16 OA No. 490/2016 with OA No. 497/2016 regarding his request of further cadre clearance is not maintainable. However, no further extension of foreign deputation from 01.06.2006 to 31.05.2008 was granted and the applicant was very well communicated about it as well as its consequences by the State Govt. on 31.03.2007 & 08.07.2008 respectively (Annexures-R/5 & R/8). Thus, he had wilfully remained absent unauthorizedly for personal gains. However, as regards directions of termination of disciplinary proceedings by respondent No.2 against the applicant, it is submitted that the case of applicant was fit for invoking provisions of rule 7(2) of AIS (Leave) Rules, 1955 and initiating action against him for remaining unauthorisedly absent with effect from 01.06.2006, i.e. after the approved period of foreign deputation upto 31.05.2006. Thus, the replying respondent, vide letter dated 22/23.12.2010 (Annexure-R-10), had, inter alia, requested the State Government to drop the disciplinary proceedings under Rule 8 of AIS (D&A) Rules but to initiate action rule 7 (2) of AIS (Leave) Rules, 1955, thereby issuing show cause notice seeking explanation within 30 days to the applicant and to furnish their specific recommendations alongwith show cause notices/ Gazette notifications/reply of the applicant for further necessary action. It is further submitted that the applicant herein was granted cadre clearance for taking up foreign assignment with South Centre Geneva under United Nations Development Programme (UNDP) for a period of two years beginning from January 2001 and his period of deputation was extended from time to time and final extension was upto 31.05.2006. Thereafter no further extension was granted as ACC had not approved his extension beyond 31.05.2006.
5.2 Accordingly, State Government, vide their letter dated 21.03.2007 (Annexure-R/5), communicated the directions of ACC to the applicant and directed him to report to the cadre for duty in compliance. The State Govt. again directed the applicant on 08.07.2008 (Annexure-R/8) to report back to the cadre for duty otherwise disciplinary action would be taken as the period of his foreign deputation as approved had already expired on 31.05.2oo6 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 17 OA No. 490/2016 with OA No. 497/2016 and he had not reported back in pursuance of the directions conveyed by their letter dated 21.03.2007. However, he did not report back. As the case of applicant was fit for invoking provisions of rule 7(2) of AIS (Leave) Rules, 1955 for being unauthorisedly absent after approved period of foreign deputation, the replying respondent, vide letter dated 22/23.12.2010 (Annexure-R/10), had, inter alia, requested the State Govt. to drop the disciplinary proceedings under Rule 8 of AIS (D&A) Rules but to initiate action rule 7(2) of AIS (Leave) Rules, 1955, thereby issuing show cause notice seeking explanation within 30 days to the applicant and to furnish their specific recommendations along with show cause notices/Gazette notifications/reply of the applicant for further necessary action. Rule 7(2) of AIS (Leave) Rules, 1955 (Annexure- R/11) reads as follows:-
"7. Maximum period of absence from duty (1) No member of the Service shall be granted leave of any kind for a continuous period exceeding five years.
(2) A member of the Service shall be deemed to have resigned from the service if he -
(a) is absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission, or
(b) is absent from duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year, or
(c) continues of foreign service beyond the period approved by the Central Government:
Provided that a reasonable opportunity to explain the reason for such absence or continuation of Foreign Service shall be given to the member of the Service before the provisions of this sub-rule are invoked."
5.3 Learned counsel further submitted that subsequently, the State Govt. had issued show cause notices on 12.10.2011, 20.12.2011 and 19.03.2013 (Annexures-R/12, R/13 & R/14) to the applicant to report for duty immediately under Rule 7 (2)(c) of AIS (Leave) Rules, 1955. Again, he was directed on 22.08.2014 (Annexure-R/15), thereby giving him final opportunity under aforesaid rule, to submit his explanation by 25.09.2014, failing which his case would be 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 18 OA No. 490/2016 with OA No. 497/2016 referred to the Central Government for final decision. This was also published in the State Gazette dated 06.09.2014 (Annexure-R/16). After considering his explanation dated 22.09.2014, the State Govt. had referred his case to the replying respondent for taking appropriate decision regarding deemed resignation, vide their letter dated 24.04.2015 (Annexure-R-18). Upto August, 2015, his unauthorized absence was about 9 years & 01 month approximately. Thus, after following the due procedure, the administrative action of making him deemed to have resigned from service w.e.f. 01.06.2006 under Rule 7(2)(c) of AIS (Leave) Rules, 1955 was taken and a notification dated 27.08.2015 was issued to that effect (Annexure- R/19).
5.4 Learned counsel also contended that the plea of the applicant that he was not issued any show cause notice or charge sheet is not maintainable at all, as he was born in the cadre of State Govt. of Uttar Pradesh and, on the directions, of Central Govt. as issued vide Department's letter dated 22/23.12.2010 (Annexure-R/10), he was issued directions to report back/show cause notices on 12.10.2011, 20.12.2011, 19.03.2013 and finally on 22.08.2014 (Annexures-R-12 to R-15).
6. Learned counsel appearing for respondent no.2 by referring to the counter reply filed on 16.01.2017 submitted that the answering respondent wrote to the DoPT on 12.12.2000 granting its no objection to the applicant taking up the employment with the South Centre, Geneva. Upon the respondent no. 1 granting cadre clearance to the applicant on 17.01.2001, the respondent no.2 wrote to the applicant on 02.02.2001 that he was being relieved with effect from 18.01.2001 for a period of 2 years to take up the employment with the South Centre, Geneva and he was requested that he should provide a copy of the employment contract as well as the actual date of taking up the appointment to the answering respondent. It is stated that the answering respondent vide letter dated 29.07.2003 provided the terms and conditions of the applicant's employment 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 19 OA No. 490/2016 with OA No. 497/2016 with WTO for the period from 01.06.2002 to 31.05.2004. Subsequently, the applicant also requested for an extension of the cadre clearance for a two-year period from 01.06.2004 to
31.o5.2oo4. The respondent no.1 granted extension of further clearance to the applicant for the said period vide order dated 02.09.2004 (Annexure R3 of reply of Respondent No. 1). Upon the applicant requesting for further extension vide letter dated 20.05.2009, the answering respondent gave its no objection to the DoPT for the proposed extension of the applicant on the post of Counsellor, WTO from 01.06.2006 to 31.05.2008. The answering respondent informed the respondent No.1 that the cadre clearance tenure of the applicant had expired on 31.05.2006 and it was pointed out that he was on foreign deputation from 22.01.2001. On being informed by the answering respondent that the foreign deputation period of the applicant had expired on 31.05.2006 and being provided with the details of the applicant's future extension of deputation with WTO by the answering respondent, the DoPT took a considered view that the applicant had over stayed beyond the permissible time period and he was bound to return and join services with the answering respondent.
6.1 Learned counsel further submitted that the case of the applicant was placed before the Appointment Committee of Cabinet (ACC), which had after examining the applicant's case directed that he should be directed to return within 1 month, failing which, major penalty proceeding should be initiated against him and that the period of overstay would be treated as unauthorized absence, having the implications associated with such overstay with effect from 01.06.2006. The DoPT also directed the answering respondent to comply with the directions and informed it of the action taken. The answering respondent intimated the applicant of the orders passed by the ACC and requested him to report for joining on an immediate basis as per the directions of DoPT. It is pertinent to point out that at this stage, the applicant had been absent from service for more than 9 months despite being well aware that his cadre clearance had 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 20 OA No. 490/2016 with OA No. 497/2016 come to an end on 31.05.2006. The applicant was also aware that the maximum time period of deputation, which was 5 years, had also expired on 21.01.2006, as he had been on foreign deputation from 22.01.2001.
6.2 Learned counsel also submitted that the foreign deputation of the applicant with WTO was subject to his employment with the answering respondent and as a matter of the Indian Administrative Services, the applicant was duty bound to report to the answering respondent and join services on expiry of his cadre clearance for foreign deputation and he ought to have given preference to his parent cadre than the WTO. The reliance placed by the applicant is on Guidelines dated 05.05.1999 issued by the PMO. However, the said Guidelines dated 05.05.1999 issued by the PMO have to be read in conjunction with the Service Rules and Regulations governing Indian Government servants.
6.3 Learned counsel further submitted that such extension in normal course would have to be within the prescribed time period of foreign deputation which is 5 years in the present case. Thus, the applicant having sought extension from time to time from the year 2002 onwards, the said extension was granted in normal course but the same cannot be interpreted to be understood that extensions of foreign deputation could be granted even beyond the prescribed period as provided in the statutory Rules.
6.4 Learned counsel argued that the applicant was well aware that he was required to join services with the answering respondent on01.06.2006, which was even beyond the statutory period of 5 years of foreign deputation since he had been relieved by the answering respondent on 22.01.2001. Further, the case of the applicant for extension of foreign deputation at WTO had been examined at the highest level i.e. the ACC, which had taken the decision not to extend the cadre clearance, and as such the applicant was required to join services with the answering respondent. Further, there was no requirement for the answering respondent to 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 21 OA No. 490/2016 with OA No. 497/2016 deal with the letter written by Director General, WTO. The applicant had overstayed more than 2 years as in July, 2008 and was on unauthorized absence during the said time period.
6.5 Learned counsel also submitted that the answering respondent had sought an explanation from the applicant on 30.10.2007 regarding his unauthorized absence but did not receive any response from the applicant. A further reminder was sent to the applicant on 10.01.2008 but that also did not elicit any response from him. Since the applicant failed to furnish either any reply/explanation to his unauthorized absence, he was finally warned on 08.07.2008 that if he failed to report for joining with the answering respondent, departmental proceedings in accordance with law would be initiated against him.
6.7 Learned counsel also submitted that though the applicant reported for joining on 01.09.2008 and was accordingly placed on the compulsory wait list, however, he again went back to the WTO without taking sanctioned leave from the answering respondent. Since the applicant was not available to be posted in any department as he had gone back to WTO, Geneva, no action could be taken either with regard to the posting or unauthorized absence from 01.06.2006. Further, since the applicant had been unauthorizedly absent from 01.06.2006 and have not made himself available for posting even after reporting for joining on 01.09.2008, the same was a violation of the All India Services (Discipline and Appeal) Rules, 1968. Since the applicant was in continuous violation of the statutory Rules, he was directed to report for joining within 15 days or else a departmental proceeding could be initiated against him. However, the applicant refused to report for joining within 15 days with the answering respondent vide letter dated 10.08.2010. However, the applicant informed the answering respondent vide Fax message on 07.09.2010 that he will positively report to the State Government in the first week of December, 2010 and stated if it was not possible to grant the said additional time, he requested for grant 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 22 OA No. 490/2016 with OA No. 497/2016 of VRS from the IAS on an immediate effect, as for grant of VRS, minimum of 3 months period notice is required to be given under Rule 16(2) of the All India Services (DCRB) Rules, 1998. Thus VRS cannot be given without any notice period on an immediate basis and for waiver of the mandatory 3 months' notice period, the consent of the Central Government is required and is mandatory which was not obtained by the applicant and thus he could not have been granted VRS.
6.8 Learned counsel vehemently argued that the applicant was on unauthorized absence from 01.06.2006 and despite a clear direction from the ACC in 2007 requiring him to report back for duty, he had failed to do so and was continuing on unauthorized absence for the last 4 years. It is also matter of record that the answering respondent had sent him several reminders in the last 4 years requesting him to join services. However, the applicant failed to acknowledge either one of them and also refused to furnish any explanation for his unauthorized absence from service despite warnings that his absence from service amounted to misconduct and could entail initiation of disciplinary proceedings against him. The applicant left the State Government with no other option, except to issue a show cause notice and charge sheet to the applicant on 18.10.2010. Learned counsel vehemently denied that the disciplinary proceedings were initiated as a counter measure to the applicant's request for VRS. It is also pertinent to mention here that the applicant's request for grant of extraordinary leave from 01.06.2006 to 15.12.2010, i.e. for a period 4.5 years could not be processed without the applicant's joining services and also actually rendering services in the parent cadre. Since the applicant had failed to furnish any explanation for his unauthorized absence or report for joining till November, 2010, the answering respondent apprised the DoPT about the applicant's case and his refusal to either furnish an explanation or report for joining. The DoPT was also apprised that disciplinary proceedings had been initiated against the applicant for his unauthorized absence and that a charge sheet for the same had 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 23 OA No. 490/2016 with OA No. 497/2016 been issued to him on 18.10.2010.The DoPT after examining the cases of officers, who were on unauthorized absence, directed the State Government on 22.12.2010 to drop the disciplinary proceedings initiated under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1958 and initiate proceedings under Rule 7(2)(c) of the AIS (Leave) Rules by issuing a show cause notice. DoPT also asked the State Government to send a consolidated proposal containing specific recommendations with copies of the show cause notice and State Gazette Notification.
6.9 Learned counsel also submitted that the DoPT sought updated status of the action taken against the applicant and one other officer named Sanjeev Ahluwalia. It was observed by the DoPT that the applicant's continued unauthorized absence had been viewed seriously by the Government and the State Government was requested to treat the said matter as urgent. As such, in pursuance of the directions of the DoPT, disciplinary proceedings initiated against the applicant under Rule 8 of the AIS (Discipline and Appeal) Rules, 1958, were dropped and separate proceedings for an unauthorized absence and overstay were initiated under Rule 7(2) (c) of the AIS (Leave) Rules vide office order dated 12.10.2011. Learned counsel submitted that the applicant once again requested for grant of VRS without reporting for service which was impermissible under the statutory Rules. The DoPT once again informed the State Government that the applicant's unauthorized absence was a matter of serious concern to it and sought information as t0 the action taken against the applicant. Accordingly, the State Government directed the applicant to report for joining on an urgent basis vide letter dated 20.12.2011 but the applicant failed to respond and report for rendering services with the answering respondent.
6.10 Learned counsel also submitted that though the applicant reported for joining on 29.12.2011 but did not make himself available for posting with the State Government. The applicant once again requested for processing his request for VRS as well as 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 24 OA No. 490/2016 with OA No. 497/2016 sanction of leave for unauthorized absence. The applicant's request for grant of leave for unauthorized absence could not be processed till he actually joined services with the State Government and started rendering services upon being posted to a particular department. However, the applicant without rendering services once again went back to WTO, Geneva, in spite of the fact that there was no cadre clearance for him to do so. It is pertinent to point out that at this stage, the applicant had been unauthorizedly absent from service for nearly 6 years. The applicant's case was not clear from the vigilance angle or the disciplinary angle as a show cause notice had been issued to the applicant for being unauthorizedly absent from service. Further, for grant of VRS, the employee concerned is required to give a minimum 3 months notice in writing to the State Government concerned and the request for VRS can only be processed, if the concerned employee is serving with the State Government concerned. However, in the present case, the applicant was on unauthorized absence from 01.06.2006 and despite having reported for joining on 01.09.2008 and on 16.12.2010, he once again proceeded on unauthorized absence and was not available for rendering actual service with the State Government. Since the applicant was unauthorizedly absent, his request for VRS could not be processed and now seeking a misinterpretation of Rule 16(2) of the Rules ibid. It is also a matter of record that the applicant never furnished any explanation to the State Government with regard to his unauthorized absence. Learned counsel also submitted that the interpretation of Rule 16(2) of the Rules ibid as stated by the applicant is misconceived and without any basis in law. It is further stated that the DoPT had repeatedly been seeking status of the disciplinary proceeding proposed to be initiated under Rule 7(2)(c) of the AIS (Leave) Rules from the answering respondent. Learned counsel also submitted that initially the answering respondent had informed the Public Enterprises Selection Board that there were no departmental proceedings pending against the applicant and that his name could be included in the panel for selection of CMD, BHEL 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 25 OA No. 490/2016 with OA No. 497/2016 and CMD, MMTC vide letter dated 11.04.2013. However, subsequently, after examining the records once again it was found that the applicant was not clear from the disciplinary proceedings angle or vigilance angle since he was continuing on unauthorized absence from service. Accordingly, the answering respondent informed the Public Enterprises Selection Board on 11.06.2013 about the aforementioned facts. Acting in furtherance of the revised information furnished by the answering respondent, the Public Enterprises Selection Board directed the applicant not to attend the selection meeting due to denial of cadre clearance.
6.11 Learned counsel also submitted that without reporting for joining, the applicant continued placing request for VRS without rendering services with the State Government. The DoPT expressed its dissatisfaction to the State Government that despite the DoPT requesting the Answering Respondent to initiate and conclude disciplinary proceeding against the applicant on 9 separate occasions, it had failed to provide any status of the disciplinary proceedings initiated against him. The DoPT asked the answering respondent to provide an immediate status of the disciplinary action against the applicant under Rule 7(2) of the AIS (Leave) Rules, 1955. The answering respondent informed the DoPT of the status of proceeding against the applicant and apprised that despite show cause notice dated 12.10.2011 being issued to him under Rule 7(2)(c) of the Rules ibid, the applicant had failed to render services and had proceeded on authorized absence before he could be posted or assigned any duty by the State Government. The applicant was given final opportunity vide office order dated 22.08.2014 to furnish explanation for his unauthorized absence under Rule 7(2) (c) of the Rules ibid. The applicant was reminded that earlier also a show cause notice dated 12.10.2011 had been issued to the applicant under Rule 7(2)(c) of the Rules ibid but he has failed to furnish any reply or explanation to the same.
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6.12 Learned counsel reiterated that Rule 8(7) of the All India
Services (Rules) Death-cum-Retirement Benefits have no bearing on the present case or invocation of Rule 7 (2) of the AIS (Leave) Rules, 1955, as Rule 8(7) of the Rules ibid only provides for continuity of service for counting of Foreign Service, as actual service rendered in the cadre for the actual purpose of computation of pensionary benefits as long as the Foreign Service is legal and approved by the competent authority. However, in the present case, the competent authority had approved the cadre clearance of the applicant only till 31.05.2006 and that having come to an end, there was no ground available to the applicant for failing to report to his parent cadre after expiry of the 5 years maximum time period of foreign deputation.
6.13 Lastly, learned counsel for respondents has submitted that the case of the applicant is liable to be dismissed as this Tribunal in OA No.1479/2016, titled Sanjeev Singh Ahluwalia vs. Union of India and others decided on 26.03.2019 had considered the similar issue and dismissed the said OA and Writ Petition (C) No.9540/2019 filed by the applicant of the said OA before the Hon'ble Delhi High Court challenging the said Order/Judgment of this Tribunal was dismissed by the Hon'ble High Court vide Order/Judgment dated 30.09.2019.
REBUTTAL TO THE SUBMISSIONS OF THE
RESPONDENTS
7. In response to the counter reply filed by Respondent No. 1, the applicant filed rejoinder on 16.01.2017, reiterating the averments and submissions made in the O.A. and contended that the stand taken by Respondent No. 1, that the impugned order is merely an administrative action and not a penalty, and does not entail any adverse consequences, is factually incorrect and devoid of merit. The applicant submitted that although the service rules may distinguish between "Deemed Resignation", "Removal", and "Dismissal" in terms of their consequences, for the purpose of Article 311(2) of the 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 27 OA No. 490/2016 with OA No. 497/2016 Constitution, all three stand on the same footing as major penalties, each carrying penal consequences.
7.1 Learned counsel emphasized that the decision treating his case as one of "Deemed Resignation" has effectively deprived him of all pensionary benefits, thereby producing consequences identical to those of "Removal" or "Dismissal" from service. However, it is a settled legal principle that what is prohibited by law to be done directly cannot be achieved indirectly through a circuitous device, in line with the maxim "quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud", meaning thereby that whenever a thing is prohibited, it is prohibited whether done directly or indirectly. Likewise, when a power is conferred to be exercised in a particular manner, it must be exercised only in that manner or not at all; any other mode of exercise is necessarily forbidden.
7.2 Learned counsel further contended that in the present case, the order of "Deemed Resignation" is, in substance, an order of "Removal" or "Dismissal". The respondents, by resorting to the device of "Deemed Resignation", have sought to achieve the same result as "Removal" or "Dismissal" without following the due process of law. The applicant further contended that this action was taken despite his repeated requests for voluntary retirement (VRS) since September 2010, more than half a dozen in total, which were never considered. This was despite the fact that, vide letters dated 10.02.2012 and 11.04.2013, Respondent No. 2 had categorically stated that no departmental proceedings or vigilance enquiries were either pending or contemplated against the applicant. While Respondent No. 1 has admitted that the applicant repeatedly sought VRS, it has failed to provide any justification for not considering his requests. The claim that his request for VRS was not accepted due to contemplated vigilance proceedings is demonstrably false.
7.3 Learned counsel for the applicant reiterated that applicant's initial request for VRS was made in September 2010, at a time when 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 28 OA No. 490/2016 with OA No. 497/2016 no departmental or vigilance proceedings were pending or contemplated. Furthermore, Respondent No.2, through its letters dated 10.02.2012 and 11.04.2013 issued in connection with the applicant's applications to the PESB for various posts clearly certified that no such proceedings existed. Yet, despite these certifications, the applicant's repeated requests for VRS remained unconsidered.
7.4 Learned counsel also submitted that Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, which governs voluntary retirement from service, provides as follows:
"16(2) A member of the Service may, after giving at least three months' previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:
Provided that no member of the Service under suspension shall retire from service except with the specific approval of the Central Government.
Provided further that the State Government concerned on a request made by the member of the service may, if satisfied and for reasons to be recorded in writing, relax the period of notice.
16(2A) A member of the service may, after giving three months' previous notice in writing to the State Government concerned, retire from service on the date on which he completes 20 years of qualifying service or any date thereafter to be specified in the notice:
Provided that a notice of retirement given by a member of the service shall require acceptance by the Central Government if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2):
Provided further that a member of the Service, who is on deputation to a corporation or company wholly or substantially owned or controlled by the government or to a body controlled or financed by the Government, shall not be eligible to retire from the service under this rule for getting himself permanently absorbed in such corporation, company or body.
Provided also that a member of the Service borne on the Cadres of Assam-Meghalaya. Manipur-Tripura, Nagaland and Sikkim may retire from service on the date on which he/she completes 15years of service.
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16(3) The Central-Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months previous notice in writing, 60 or three months' pay and allowances in lieu of such notice require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice."
7.5 On the basis of above rule position, learned counsel argued that a perusal of the said clause indicates that an offer of voluntary retirement can be made and accepted under the Rules, inter alia, in the following three situations:
(a) On completion of 20 years of service;
(b) When an employee is placed under suspension; and
(c) When the employee has completed 30 years of service or
attained the age of 50 years.
7.6 In the third situation, acceptance of the notice of voluntary
retirement is not required, and the Government servant is deemed to have voluntarily retired upon completion of the notice period. However, in the first and second situations, acceptance of the offer by the Competent Authority is necessary.
7.7 Learned counsel further contended that in the present case, since the applicant had completed more than 30 years of qualifying service and had also attained the age of 50 years, and as no disciplinary proceedings were pending against him, as certified by Respondent No. 2, he deemed to have voluntarily retired upon the expiry of the prescribed notice period in respect of his various requests for voluntary retirement, particularly, the last one dated 22nd September, 2014. Instead, the applicant has been unfairly and unjustifiably denied the opportunity to avail the benefit of voluntary retirement with full pensionary entitlements, to which he was otherwise eligible.
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7.8 Learned counsel for the applicant also argued that the
contention of the respondents that the applicant failed to report back to the cadre and was willfully absent for personal reasons is factually incorrect and constitutes a misrepresentation of facts. In this regard, learned counsel submitted that the applicant, in fact, reported back and joined the State Government on three different occasions. On each of these occasions, he submitted requests for regularization of his period of absence (by adjusting due leave) and for acceptance of his voluntary retirement. What is even more surprising is the State Government's assertion that the applicant's "joining was not formal." Describing his joining reports as "informal" is a complete misrepresentation of facts. On each occasion, specific orders were passed by the Chief Secretary or the Appointment Secretary on the applicant's joining letter, which was personally submitted to them.
7.9 Learned counsel also submitted that in the Gradation Lists for the years 2013 and 2014, the applicant was shown as an "Officer on Waiting," which denotes that he had formally reported back to the cadre but had not yet been assigned a posting. It is only in cases where an officer has formally rejoined the cadre that such a status of "On Waiting" is reflected.
8. In response to the counter reply filed by Respondent No. 2, the applicant also filed rejoinder on 25.04.2017, although reiterating the averments and submissions made in the O.A. He contended that the applicant has been a victim at the hands of the respondents, who actuated on legal malice, arbitrariness and bias in passing the impugned Order in the present case. Further, the respondents, by deliberately misinterpreting Rule 16(2) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 have denied the applicant from taking voluntary retirement for service which otherwise takes effect automatically as no order of refusal was passed within the notice period. It is submitted that under Rule 16(2) of the Rules ibid, the right to voluntary retirement is conferred 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 31 OA No. 490/2016 with OA No. 497/2016 in absolute terms if the conditions laid down therein are satisfied and the voluntary retirement would come into effect automatically on the expiry of the period specified in the notice.
8.1 Learned counsel further contended that the arbitrary and discriminatory actions of the respondents as well as the clear malafide intention behind the actions of the respondents is further fortified from the fact that even though other IAS officers belonging to the same cadre having overstayed their foreign deputation periods/leaves granted to them, have been permitted to join back, the applicant, however, on the other hand, has neither been permitted to join back, nor has been granted VRS. It is submitted that Shri Surya Pratap Singh, IAS officer (Batch of 1982) was granted ex-India study leave from 06.08.2004 to 05.08.2006 combined with other kind of leave due and admissible from 06.08.2006 to 16.08.2006 for pursuing MBA Degree from Michigan University, MI,USA. Thereafter, the State Government granted him leave from 17.08.2006 to 18.06.2013 that is for a period of nearly seven years.
8.2 Learned counsel also argued that this Tribunal must enquire as to (i) when this leave was sanctioned to ascertain/confirm the fact that whether this leave was actually sanctioned post-facto; and
(ii)details of this leave since normally Officers do not have an eligibility of seven years of leave and importantly, the Tribunal must also ask respondent no. 2 as to why a similar request from the applicant for leave was rejected while approving the same for another officer under exactly the same circumstances.
8.3 Learned counsel also submitted that there is another similar case relating to Shri Pradeep Bhatnagar, IAS officer (Batch of 1982) who was granted Cadre Clearance for taking up foreign assignment as follows: -
(i) with ESCAP, Thailand [approx. 2 years 2 months from September,99 to November, 2011];
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(ii) with UNESCAP, Bangkok [05 months from November, 2005 to March, 2006]
(iii) As "Economics Affairs Officer" in the Technical Support Facility of the Group of fifteen Geneva [2 years from July, 2006 to June, 2008) but where he actually stayed on till December, 2012, i.e. more than four and a half years beyond the period which had been approved.
8.4 Learned counsel argued that Shri Pradeep Bhatnagar reported back to Uttar Pradesh Cadre (Respondent No.2) from Geneva on21.12.2012/28.01.2013. Itis clear from the information provided by respondent no. 1 that Shri Pradeep Bhatnagar was granted Cadre Clearance for working in Geneva only up to June, 2008. Yet Shri Bhatnagar remained in Geneva for a further period of four and a half years. During this period, the applicant's status was exactly the same as that of Shri Bhatnagar. Yet while Shri Bhatnagar was allowed to join after an unauthorized absence of four and a half years but the applicant was denied this opportunity even though he had reported back to the parent cadre much before Shri Bhatnagar's joining and neither was the applicant's request for VRS accepted during this period.
8.5 Learned counsel further submitted that the submissions made by Respondent No. 2 in their reply are strongly denied, as several of them are factually incorrect. It is contended that the respondent has made these submissions with the apparent intent to mislead this Tribunal. A detailed response to the said submissions is provided herein below:
A. So far as the contention of the respondent No. 2 that the Impugned Order passed by Respondent No. 1 is perfectly legal, and Rule 7(2) of the All India Services (Leave) Rules, 1955 is in conformity with the constitutional provisions and does not violate Article 311 of the Constitution is concerned, learned counsel submitted that (i) if the implementation of the aforesaid Rule 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 33 OA No. 490/2016 with OA No. 497/2016 enables the Government to deprive a permanent civil servant of his office without an enquiry, or without issuing a show cause notice or charge sheet, or without affording him an opportunity of personal hearing, the same would clearly be violative of Article 311(2) of the Constitution; (ii) Article 311(2) is intended to afford a sense of security to public servants who have been substantively appointed to a permanent post. One of the principal benefits to which such officers are entitled is the right to pension after rendering public service for the period prescribed under the Rules. However, the manner in which the respondents have implemented and interpreted the aforesaid Rule enables the Government to trespass upon the rights guaranteed under Article 311, rendering those rights ineffective and illusory. Pensionary benefits are important financial rights that accrue to a Government servant, and depriving them, without following due process of law, particularly without issuing a show cause notice, charge sheet, or providing a personal hearing is wholly violative of Article 311; (iii) constitutional protections cannot be taken away or whittled down by the said Rule. Any interpretation of Rule 7(2) of the All India Services (Leave) Rules, 1955 that purports to confer unfettered and unrestricted power upon the Government to remove an officer from the All India Service without following due process of law would be unconstitutional, irrational, arbitrary, ultra vires, and violative of Article 311 of the Constitution of India; and (iv) any Rule which does not comply with the procedure prescribed under Article 311(2) must be struck down as invalid.
B. So far as the contention of the respondent No. 2 that the maximum period of foreign deputation was five years as per the relevant Rules, and the Guidelines dated 05.05.1999 issued by the Prime Minister's Office (PMO) are circumscribed by the Service Rules and Regulations governing Indian Government servants is concerned, learned counsel submitted that (i) the directions issued by the PMO on 5thMay 1999 were issued in furtherance of Rule 7 of 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 34 OA No. 490/2016 with OA No. 497/2016 the All India Services (Leave) Rules, 1955. However, Respondent No. 2, with a view to mislead this Tribunal, is wrongly interpreting the same. Rule 7 of the said Rules provides that no member of the Service shall be granted leave of any kind for a continuous period exceeding five years. However, on 5th May 1999, the PMO, with a view to enabling the continuation of Indian Government officials in senior positions in international organisations rather than forcing them to return, issued specific directions stating that "repatriation of an Indian official in reasonably senior positions in the UN system (P-5 and above) should not be insisted upon unless there is a guarantee that such officials will be replaced by another Indian national," and further that "if extension is sought fulfilling the above two conditions, it should normally be allowed."; (ii) the purpose of the aforesaid PMO order was to facilitate the continuation of Indian officials in international organisations and to avoid compelling them to return prematurely. The order was intended to ensure that India maintains its representation in senior positions in international organisations. Consequently, this flexibility, beyond what is permitted under the Rules, was specifically made applicable to Indian officials working in the UN system at the level of P-5 and above. The order clarified that if the conditions laid down therein were fulfilled, extension should normally be granted and repatriation should not be insisted upon unless another Indian national could replace the officer concerned; (iii) A holistic reading of the aforesaid Rule along with the PMO order clearly shows that even after completion of the five-year limit prescribed under Rule 7, extensions should ordinarily be granted to those few Indian officials occupying senior positions who fulfil the conditions stipulated in the PMO order; (iv) the applicant had fulfilled both the conditions laid down therein, i.e., he was the senior-most Indian in the WTO, holding a salary scale two grades higher than the P-5 level mentioned in the PMO order, and he had been selected through an open international recruitment process, which meant that his recall would not result in his replacement by another Indian national.
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Nevertheless, despite clear instructions to the contrary, the respondents failed to grant extension. It is also pertinent to mention that on 23rd July 2007, the applicant was appointed as Director in the WTO, becoming the first IAS officer ever to attain this senior rank and position in that organization; (v) Acceptance of the restricted interpretation advanced by the respondents would render the entire purpose of the PMO order meaningless and nugatory. The PMO order is unambiguous and was meant to ensure continued representation of Indian officials in senior international positions, which is a matter of both national pride and substantive benefit. The respondents, however, failed to grant extension as provided under the said order, insisted on the applicant's premature return, and thereafter, despite his request for VRS, passed the impugned order of "deemed resignation" in a manner that is arbitrary, mala fide, and devoid of fairness or adherence to the applicable rules and due process of law.
C. So far as the contention of the respondent No. 2 that the Impugned Order of "Deemed Resignation" amounts to a penalty under the All India Services (Discipline and Appeal) Rules, 1969 is concerned, learned counsel submitted that (i) the impugned order of "deemed resignation" imposes a major financial penalty upon the applicant, as it deprives him of all his retirement and pensionary benefits. It also results in severance from service. Therefore, the respondents' contention that such an order is not a penalty is wholly illogical. The impugned order, in effect, constitutes a major penalty passed without following due process of law; (ii) dismissal, removal, and reduction in rank represent the three major penalties contemplated under Article 311 of the Constitution. The impugned order of "deemed resignation" is akin in nature and effect to any of these penalties; (iii) the motive of the authority or the form of the order is irrelevant. What matters is the legal effect of the action taken. In the present case, the impugned order prematurely terminates the applicant's right to his post and strips him of all post-
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retirement financial benefits, is an act tantamount to removal from service; (iv) it is well settled that the terminology used to describe a termination is not decisive; rather, its legal consequences are. Since the impugned order deprives the applicant of his permanent post and pensionary entitlements, it is clearly in the nature of a major penalty. The respondents' contention that such an order is not penal is, therefore, untenable; (v) If the said Rule is implemented so as to confer unfettered power upon the Government to remove any person in permanent employment at its pleasure, it would be contrary to the constitutional guarantee enshrined in Article 311(2); (vi) Article 311 must receive a fair, liberal, and progressive construction to promote its true purpose to protect civil servants from arbitrary removal. There is no indication in the Constitution to restrict this protection, and therefore, its scope cannot be curtailed; (vii) the ordinary meaning of "dismiss" is "to let go" or "to relieve from duty", and of "remove" is "to discharge" or "to get rid of". Thus, any action that terminates a Government servant's office is covered by Article 311(2). The impugned order of "deemed resignation" effectively terminates the applicant's service and denies him pensionary benefits; hence, it is subject to the safeguards of Article 311(2), which the respondents have blatantly ignored; (viii) the impugned order must also be tested on the touchstone of the Wednesbury principle of reasonableness, and that decision which falls short of the standards of reasonableness is liable to judicial interference.
D. So far as the contention of the respondent No. 2 regarding the Applicant's Reporting Back and Requests for VRS is concerned, learned counsel also submitted that (i) the applicant duly reported back and submitted joining reports on three occasions 01.09.2008, 16.12.2010, and 29.12.2011 along with requests for regularisation of the period of absence (against due leave) and for acceptance of his VRS; (ii) Respondent No. 2 could have either accepted his VRS request (which they did not), or rejected it on the ground that disciplinary action was contemplated (which they also did not, since 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 37 OA No. 490/2016 with OA No. 497/2016 no such action was pending), or issued posting orders (which they again failed to do). The applicant remained in Lucknow for extended periods after reporting back, yet the respondents neither issued posting orders nor acted upon his VRS requests, which ordinarily are processed within a few days.
E. So far as the contention of the respondent No. 2 regarding the Applicant's Eligibility for VRS and the Three-Month Notice is concerned, (i) the respondents' contention that the applicant was ineligible for VRS due to pending vigilance proceedings or failure to give three months' notice under Rule 16(2) of the All India Services (DCRB) Rules, 1958, is wholly misconceived; (ii) the pendency of disciplinary proceedings is not an absolute bar to VRS, provided the conditions under the Rule are fulfilled. Further, the applicant was over 50 years of age and had completed more than 30 years of service as on 15.09.2010, the date of his VRS application. Hence, he should have been deemed to have voluntarily retired on 15.12.2010, i.e., upon expiry of the three-month notice period, as no order rejecting his request was issued; (iii) the respondents' assertion that the applicant did not fulfil the three-month notice period is factually incorrect. In his VRS request, the applicant stated:
"However, in case it is not possible for the Government to grant me additional time, then I would request that I may please be granted VRS from the Indian Administrative Service with immediate effect."
(iv) the use of the word "immediately" does not invalidate the notice. The language of the rule makes VRS a deeming provision, where, upon expiry of the notice period and in the absence of rejection, voluntary retirement takes effect automatically; (v) the only circumstance under which the Government may withhold permission to retire is when the officer is under suspension. No such condition applied here. Therefore, the applicant's voluntary retirement took effect automatically on expiry of the notice period.
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F. Learned counsel for the applicant placed reliance on the
decision of the Hon'ble Supreme Court in Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323, the Hon'ble Supreme Court held:
"It is not the duty of the Court to enlarge the scope of legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe legislation... Courts shall decide what the law is, not what it should be."
9. We have perused the pleadings available on record and considered the submissions made by the learned counsels for the parties and have also gone through the Orders/Judgments referred to and relied upon by the learned counsels for the respective parties carefully.
ANALYSIS and FINDINGS
10. We have carefully considered the rival contentions of learned counsel for the parties and examined the records. The primary controversy centres on whether the applicant's notice dated 15.09.2010 seeking voluntary retirement under Rule 16(2) of the All- India Services (Death-cum-Retirement Benefits) Rules, 1958 ("the AIS (DCRB) Rules") took effect automatically on expiry of the notice period, i.e., on 15.12.2010, or whether the respondents were justified in subsequently treating the applicant as having "deemed to have resigned" under Rule 7(2)(c) of the All-India Services (Leave) Rules, 1955 on account of his prolonged unauthorized absence from 01.06.2006 onwards.
11. Having heard learned counsels for the parties and perusing the pleadings as well as the judgments relied upon by the learned counsel for the parties, we are of the considered view that following issues are required to be adjudicated in this matter:-
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(i) Whether the voluntary retirement of the applicant took effect automatically on expiry of 90 days from 15.09.2010?
(ii) Whether subsequent proceedings under Rule 7 (2) (c) of the AIS (Leave) Rules, 1955 are invalid? and
(iii) Whether any procedural or substantive infirmity vitiates the impugned order?
12. So far as issue No. 1 above i.e., Whether the voluntary retirement of the applicant took effect automatically on expiry of 90 days from 15.09.2010 is concerned, we observe that the applicant's main plea is that Rule 16(2) of the AIS (DCRB) Rules, 1958 does not require formal acceptance, and that in the absence of rejection within the prescribed period, voluntary retirement becomes effective automatically. Heavy reliance is placed upon the judgments of the Hon'ble Supreme Court in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441; B.J. Shelat v. State of Gujarat, (1978) 2 SCC 202; Union of India v. Sayed Muzaffar Mir, 1995 Supp (1) SCC 76; State of Haryana v. S.K. Singhal, (1999) 4 SCC 293; and Union of India v. Arun Mishra, W.P.(C) 7917/2020 rendered by the Hon'ble Delhi High Court.
12.1 The said line of authorities though undoubtedly lays down that where the applicable service rule confers an absolute right of voluntary retirement after notice, and the Government has no discretion to withhold permission and retirement takes effect automatically on expiry of the notice period, unless rejection or withholding is communicated before such expiry. However, it must also be noted that these principles are attracted only when the officer is in actual service and eligible to invoke the provision. The right to retire presupposes subsisting service. In the present case, it is an admitted fact that the applicant had overstayed abroad beyond 31.05.2006 after expiry of the period of his foreign deputation. The 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 40 OA No. 490/2016 with OA No. 497/2016 Appointments Committee of the Cabinet (ACC) specifically declined further extension and directed the officer to return to his cadre within one month, failing which major penalty proceedings were to be initiated. The applicant was required to return to India after completion of his foreign deputation. However, he did not return and the matter remained under correspondence between the Government of India and the State Government. The decision of the Government of India was duly conveyed to him by the State Government vide letter dated 21.03.2007 but the officer (applicant) did not report back. Again on 08.07.2008, the decision of the Govt. of India was conveyed to the applicant for reporting back on duty. However, the applicant returned back only on 01.09.2008 and was available for few days before he went back to Geneva. Despite repeated reminders, he failed to report back for duty and subsequently submitted a notice for voluntary retirement dated 15.09.2010, which was after the lapse of four years and three months from the completion of his deputation tenure. The applicant's plea that his continued stay at abroad was bona fide or under a mistaken belief cannot efface the admitted fact that his deputation was not extended and that his stay at abroad after 31.05.2006 was without authorization.
12.2 It is well settled that deputation does not confer any vested right upon an employee, and no indefeasible claim can be made for continuation on deputation beyond the specified tenure. A government servant on deputation has no right to seek continuation for an indefinite period, nor can a deputationist claim automatic extension of the deputation tenure in the absence of an express order of extension or authorization by the competent authority. Therefore, we are unable to agree with the contentions of the applicant. It is also apt to mention that in such circumstances Government of India, by letter dated 22/23.12.2010, advised the State Government to initiate proceedings under Rule 7(2)(c) of the AIS (Leave) Rules, 1955 for unauthorized absence, and the same 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 41 OA No. 490/2016 with OA No. 497/2016 culminated in the order dated 27.08.2015 deeming the applicant to have resigned from service with effect from 01.06.2006.
12.3 Moreover, the applicant's letter dated 15.09.2010 was not in compliance with Rule 16(2) of the Rules ibid, which mandates three months' notice to seek VRS from service. The applicant was not serving in any post at that time. His request for VRS also sought "immediate effect", thereby waiving the notice period without obtaining approval of the Central Government, which is clearly in contravention of the law laid down by the Hon'ble Supreme Court in the case of State of U.P. and others vs. Achal Singh, reported in 2018 INSC 740, wherein the Hon'ble Supreme Court held that it is settled principle that mandatory notice period prescribed under service rules or regulations are condition precedent to the efficacy of voluntary (or compulsory) retirement. A notice not conforming to the statutory requirement of minimum notice cannot lead to a valid automatic retirement. The courts have consistently held that non- compliance with such notice provisions may invalidate or defer the effect of retirement and that "there is no automatic retirement on expiry of the period of notice of three months". The retirement order must be considered legally ineffective until all procedural requisites, including minimum notice, are fulfilled.
12.4 We also observe that the notice for voluntary retirement dated 15.09.2010 submitted by the applicant sought retirement with immediate effect, whereas Rule 16(2) of the AIS (DCRB) Rules, 1958 mandates the giving of a three-month prior notice. The said Rule further empowers the State Government concerned to relax the period of notice upon a request made by the member of the Service, if the State Government is satisfied that such relaxation is justified. In the present case, however, the notice for voluntary retirement submitted by the applicant sought retirement with immediate effect, thereby precluding the State Government from taking a considered decision on whether to relax the mandatory notice period of three months. Therefore, the respondents rightly did not act upon the said 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 42 OA No. 490/2016 with OA No. 497/2016 notice, as it was not in conformity with the statutory requirements prescribed under Rule 16(2) of the Rules ibid. For facility of reference, the said Rule is reproduced below:
"16(2) A member of the Service may, after giving at least three months' previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice:
Provided that no member of the Service under suspension shall retire from service except with the specific approval of the 54Central Government.
Provided further that the State Government concerned on a request made by the member of the service may, if satisfied and for reasons to be recorded in writing, relax the period of notice."
12.5 The reliance placed by the applicant on the judgment of the Hon'ble Delhi High Court in Arun Mishra(supra), is misplaced as, in that case, the officer was admittedly in continuous service and had completed the requisite notice period, whereas in the present case, the applicant was continuously absent. The doctrine of automatic effect upon expiry of the notice period is inapplicable to a case of unauthorized absence where the right to retire had not matured.
13. So far as issue No. 2 above, i.e., Whether subsequent proceedings under Rule 7 (2) (c) of the AIS (Leave) Rules, 1955 are invalid is concerned, in this regard, it is apt to refer the said Rule, which reads as under: -
"7. Maximum period of absence from duty--(1) No member of the Service shall be granted leave of any kind for a continuous period exceeding five years.
(2) A member of the Service shall be deemed to have resigned from the service if he -
(a) is absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission, or
(b) is absent from duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year, or
(c) continues of foreign service beyond the period approved by the Central Government:
2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 43 OA No. 490/2016 with OA No. 497/2016 Provided that a reasonable opportunity to explain the reason for such absence or continuation of foreign service shall be given to the member of the Service before the provisions of this sub-rule are invoked."
(emphasis supplied) 13.1 On this issue, the applicant's contention is that once he stood voluntarily retired, the respondents could not invoke the provisions of Rule 7(2)(c) of the Rules ibid to treat him as deemed to have resigned. However, as discussed above, the voluntary retirement never took effect in law because the applicant continued to be on foreign service beyond the period approved by the competent authority. Consequently, initiation of action under Rule 7(2)(c) of the Rules ibid cannot be said to be retrospective or without jurisdiction. However, the record shows that multiple show-cause notices were issued between the period from 2007 to 2014, duly served and even published in the Gazette. The applicant's reply dated 22.09.2014 was considered, and after obtaining the approval of the competent authority, the impugned order was issued in 2015. The process reflects due compliance with the procedural requirements of Rule 7(2)(c) of the Rules ibid. The applicant's claim that no notice was served is, therefore, factually incorrect.
13.2 Further, the plea of the applicant that dropping of contemplated disciplinary proceedings under Rule 8 of the AIS (D&A) Rules on 22/23.12.2010 signified acceptance of voluntary retirement is also misconceived. The said communication clearly recorded that, instead of initiating disciplinary proceedings, action under Rule 7(2)(c) of the Rules ibid should be taken in view of prolonged unauthorized absence. This demonstrates that the respondents never accepted the applicant's request for voluntary retirement.
13.3 We also observe that the admitted chronology shows that the applicant continued abroad despite categorical directions of the ACC and the State Government to return to his cadre. He reported briefly in September 2008 but left again without awaiting posting 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 44 OA No. 490/2016 with OA No. 497/2016 orders. Such conduct evinces wilful disregard of service discipline. The doctrine of "automatic cessation of service" in cases of prolonged unauthorized absence has been consistently upheld by the Supreme Court, including in the case of C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115, wherein the Hon'ble Supreme Court held as under:-
"13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages.
(emphasis supplied) 13.4 We further observe that the applicant's plea that he continued correspondence with authorities does not mitigate his failure to comply with clear directives. No employee can dictate the terms of his own continuance or exit when his unauthorized absence extends for several years.
13.5 We also observe that the applicant presumed that his foreign deputation would be extended beyond 31.05.2006 and continued to work in Geneva without formal approval from the competent authority despite the fact that the applicant knew that his extension had not been approved by the competent authority. Such presumption, in our view, is highly unbecoming of a Government servant, especially of an officer of the Indian Administrative Service, and demonstrates a lack of due regard for rules and procedure.
13.6 At this stage, it is apt to mention that the Voluntary Retirement Scheme (VRS) application dated 15.09.2010 submitted by the applicant is conditional in nature. The applicant explicitly 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 45 OA No. 490/2016 with OA No. 497/2016 stated that he would like to join the State Government by December 2010, if additional time was granted, and only in the alternative requested voluntary retirement "in case it is not possible for the Government to grant me this additional time." This demonstrates that the applicant's request was contingent upon an outcome and was not an unequivocal application for voluntary retirement. The relevant portion of the said application dated 15.09.2010 reads as under:-
"Secondly, I would also like to indicate that it will be impossible for me to join the State Government within 15 days as advised. This is far too little a time period for me to wind up my work here, get all my clearance, surrender my apartment, ship all my house hold goods, and complete all the other necessary formalities. However, I can try and wind up this work in the next few months and try to report to the State Government in December 2010. I would therefore be extremely grateful if this permission is please accorded to me. However, in case it is not possible for the Government to grant me this additional time, then I would request that I may please be granted VRS from the Indian Administrative Service with immediate effect."
13.7 At this stage, it is pertinent to observe that an employee cannot dictate terms to the employer. From a plain reading of the applicant's communication, it is evident that the said application cannot be regarded as an unconditional request for voluntary retirement. The employer of the applicant is the State Government of Uttar Pradesh, with the Union of India being the cadre-controlling authority. An employee cannot impose such conditions upon the employer in matters of service.
13.8 In the present case, the applicant, after having remained absent from duty since 01.06.2006 and continuing his foreign assignment unauthorisedly on his own volition where he was gainfully employed, has clearly demonstrated a lack of intention to resume service under his employer. Now, at this belated stage, after having derived the benefits of his foreign engagement, the applicant seeks to claim pensionary and other retirement benefits through what can only be described as a luxurious litigation.
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14. The applicant's contention is that he was on compulsory wait. However, the record shows that he did not remain in the waitlist as directed and chose to proceed abroad without appropriate permission. There is also no evidence to indicate that any study leave applied for by the applicant was formally sanctioned by the competent authority.
14.1 It is also pertinent to mention that mere passage of time or the lapse of 90 days does not render a conditional VRS application effective automatically. The rules require that the employee exercise a clear and unequivocal right to retire, and any acceptance by the competent authority must correspond to the terms of the notice. In the present case, neither any such unqualified notice was given nor the applicant had deposited the amounts in lieu of three months notice period, which is a condition precedent for seeking voluntary retirement. Further the applicant's conduct indicates that he did not intend to voluntarily retire under the standard procedure as he was engaged in gainful and lucrative alternative employment.
15. So far as issue No. 3 above, i.e., Whether any procedural or substantive infirmity vitiates the impugned order is concerned, the records reveal that the matter was repeatedly examined by both the State Government and the Government of India through DoP&T (cadre controlling authority), and approval of the competent authority was obtained before issuing the notification dated 27.08.2015. There is no evidence of malice, procedural irregularity, or violation of natural justice. The impugned order is based on prolonged unauthorized absence duly established on record.
15.1 The applicant's reliance on judicial precedents governing voluntary retirement is misplaced, as those decisions pertain to officers who submitted valid notices, whereas the applicant's case involves prolonged unauthorized foreign stay without sanction. The facts and legal context are thus wholly distinguishable and therefore, the same are not relevant to the facts and circumstances of the present case, as in the case of D. C. Sangma (supra), the appellant 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 47 OA No. 490/2016 with OA No. 497/2016 had attained the age of 50 years and on account of certain 'domestic troubles', he did not want to continue in service and further in the case of B. J Shelat (supra), the appellant on attaining the age of superannuation gave notice for retirement on 17.7.1973 and gave further notice for retirement on 03.12.1973. However, before 03.12.1973, the Chief City Magistrate called upon the appellant on 23.11.1973 under the directions of the Chief Justice and Judges of the High Court to submit an explanation on 26.11.1973 and on 11.12.1973 the High Court issued an order of suspension and thereafter issued a chargesheet. Further in Sayed Muzaffar Mir (supra), the retirement notice of the appellant was submitted in compliance with the statutory requirements of the rules applicable in that case, including the prescribed notice period, and there was no question of unauthorized absence or failure to report back to duty. Further in the case of S.K. Singhal (supra), the employee upon joining his transferred place, has submitted his notice for retirement from service. So far as reliance placed on Tek Chand (supra) is concerned, the same is clearly distinguishable on the facts of the instant case.
16. At this stage, it is pertinent to refer to the decision of this Tribunal in Sanjeev Singh Ahluwalia (supra). In that case, although the applicant was challenging his deemed resignation from service with effect from 18.09.2006 vide order dated 09.09.2015, he belonged to the 1980 batch of the Indian Administrative Service and had joined service on 15.09.1980. The applicant submitted an application dated 18/22.08.2005 to take up an assignment as a Consultant with the Africa Technical Families, World Bank, Sudan, for a period of one year on foreign service terms. The applicant proceeded to Sudan from 18.09.2005 to 17.09.2006, for which leave for the period of one year was sanctioned retrospectively in 2008. Admittedly, the applicant overstayed in Sudan and did not rejoin his parent department after 17.09.2006. Subsequently, the Central Government issued a communication to the State Government on 16.03.2007, and the State Government, in turn, conveyed to the 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 48 OA No. 490/2016 with OA No. 497/2016 applicant on 05.04.2007 that he was to resume his duties. However, vide communication dated 12.10.2007, the applicant sought an extension of leave until 07.10.2009, which was not granted. Following this, respondent No.2 issued a communication on 16.07.2008, directing the applicant to immediately report for duty in his cadre as the term of his foreign service had ended. A show-cause notice was issued by the Chief Secretary on 10.10.2011, to which the applicant replied on 17.05.2012. Meanwhile, on 19.04.2010, the applicant submitted an application seeking voluntary retirement under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. Another show-cause notice was issued to the applicant on 29.02.2012. The applicant superannuated on 31.10.2012. On 09.09.2015, the DoPT declared the applicant as deemed to have resigned from service with effect from 18.09.2006. Aggrieved by the notification dated 09.09.2015, the applicant filed O.A. No.1479/2006 before this Tribunal. This Tribunal, vide order dated 26.03.2019, observed as under:
"11. The unauthorized period of absence of the applicant was six years and one month. Though the applicant claims to have made an application on 09.04.2010 seeking voluntary retirement under rule 16(2) of the All India Services (Death cum-Retirement Benefits) Rules, 1958, the same was not 9 OA-1479/2016 considered by the Central Government, since by the time it was received, the notice dated 10.10.2011 was issued under rule 7(2)(c) of the Leave Rules. Added to that, the application for voluntary retirement can be processed only when the employee is in service and on duty, and if no proceedings are pending against him. At any rate, the applicant did not pursue the matter pertaining to the voluntary retirement till he reached the age of superannuation. It is natural that the application for voluntary retirement loses relevance once the employee attains the age of superannuation. Hence, any contention raised in this behalf becomes redundant."
16.1 Ultimately, this Tribunal after noting the law on the subject dismissed the said OA. The decision of this Tribunal was challenged by the said applicant before the Hon'ble Delhi High Court and the Hon'ble High Court vide Order/Judgment dated 30.09.2019 in Writ Petition (Civil) No.9540/2019, titled Sanjeev Singh Ahluwalia vs. UOI and others dismissed the same by observing as under: -
2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 49 OA No. 490/2016 with OA No. 497/2016
19. We have heard counsel for the parties. While certain specific matters relating to Rules 16(2) and 16(2A) of All India Services (Death-cum Retirement Benefits) Rules, 1958 as also of O.M. dated 25.11.1958 have been canvassed, certain larger issues of responsibility and discipline in government service also engage us in the matter. Before the petitioner seeks to rely on certain rules or to explain the inapplicability of the O.M., he must first answer as to what justifies the unauthorized absence of the petitioner from government service in India by staying away and devoting his time to a foreign posting, for which he had sought and was granted leave only for one year but stayed away for an extra six years and more. The petitioner must then explain as to how he justifies relying on hyper technical ruse of deemed voluntary retirement and lame excuses of family circumstances when faced with a straight and simple question of unauthorized absence from his duties as a senior administrative service officer in India. The sheer callous conduct on the part of the petitioner is disappointing and even worrisome. If this kind of indiscipline and brazenness is to be accepted in the name of technical interpretation of service rules, it would only encourage officials in senior and responsible positions to behave in the same irresponsible manner, with deleterious consequences for the administration and governance of the country. The timing of filing of the application for seeking voluntary retirement is telling and shows how a senior and responsible officer of the administrative services has sought to escape the consequences arising from his own egregious default of unauthorized absence from duties in India, to save himself from the consequences.
Had the same officer faced a situation of his subordinate behaving in this manner, we have no doubt that the officer would have sought for and visited such subordinate with the most grave consequences; but when it comes to himself, the petitioner seeks to hide behind the technicality that no acceptance is required for an application for seeking voluntary retirement and that mere expiration of period of notice means that he would be deemed to have been voluntary retired. Moreover, no explanation is forthcoming in regard to the interpretation of O.M. dated 25.11.1958, whereby even when disciplinary proceedings are contemplated against the officer, an application for voluntary retirement "may not ordinarily be accepted". If there is a case where this provision is to be invoked against an officer, in our view, this is exactly such a case.
20. In view of the above, we find no merit whatsoever in the petition. Impugned order dated 26.03.2019 made by the Tribunal is fully legal and justified."
(emphasis supplied)
17. As such all the issues are answered in favour of the respondents.
18. Having regard to the above discussions, we are of the considered view that the applicant's request for voluntary retirement dated 15.09.2010 did not take effect automatically under Rule 16(2) of the AIS (DCRB) Rules, 1958, as mandatory notice periods prescribed under service rules or regulations are condition precedent to the efficacy of voluntary (or compulsory) retirement. A notice not conforming to the statutory requirement of minimum notice cannot lead to a valid automatic retirement. His continued 2025.10.15 RAVI KANOJIA 16:21:01 +05'30' Item No. 27/C-1 50 OA No. 490/2016 with OA No. 497/2016 unauthorized absence from 01.06.2006 and unauthorized continuation on foreign service disentitled him from invoking the said provision. The respondents were fully justified in initiating proceedings under Rule 7(2)(c) of the AIS (Leave) Rules, 1955 and in declaring him deemed to have resigned from service with effect from 01.06.2006. No procedural irregularity, perversity, or illegality is made out in the impugned order dated 27/28.08.2015 warranting interference by this Tribunal. The applicant has failed to establish any enforceable right or violation of the statutory rules.
19. In the result, both the Original Applications are dismissed being devoid of merit.
20. There shall be no order as to costs.
21. Pending MA(s), if any, stand disposed of accordingly.
22. Registry is directed to place a copy of this Order in another connected OA as well.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/ravi/neetu/
2025.10.15
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