Belu Rani Das vs State Of Tripura And Ors

The petitioner while working as the Head Clerk in the office of the District Magistrate and Collector, Unakoti, Kailashahar gave notice for voluntary retirement with effect from 01.01.2020 as her husband was suffering from several neurological ailments. The petitioner had completed serving the respondents for 26 years and 7 months in the regular establishment when she gave the notice for voluntary retirement on 07.08.2019 [Annexure-1 to the writ petition]. The District Magistrate and Collector, Unakoti, Kailashahar by his order No.F.9(5)/DUE/19/6385-98 dated 23.09.2019 observed that the petitioner was entitled to go for voluntary retirement as she was entitled to such retirement under Rule 48-A of the Central Civil Services (Pension) Rules, 1972, as adopted in the State of Tripura. The prayer for voluntary retirement of the petitioner was accepted w.e.f. afternoon of 31.12.2019 but on 20.11.2019, the petitioner submitted prayer for withdrawal of her notice of voluntary retirement to the District Magistrate and Collector, Unakoti, Kailashahar. The said prayer was made in connection having referred the said order dated 23.09.2019 [Annexure-2 to the writ petition.] The petitioner had asserted that due to the „changed circumstances‟ in her family, she decided to withdraw her prayer for voluntary retirement. Thus, she prayed for allowing her to continue in the service. The said prayer for withdrawal of the notice of voluntary retirement dated 20.11.2019 [Annexure-3 to the writ petition] was forwarded by the District Magistrate and Collector, Unakoti, Kailashahar to the Deputy Secretary, Revenue Department, Agartala for according approval towards withdrawal of voluntary retirement based on her notice. But there had been no response from the end of the respondents.

On 27.01.2020 the petitioner had prayed for early disposal of her prayer dated 20.11.2019 which was made for withdrawal of the notice of the voluntary retirement and for allowing her to continue in the service. But the petitioner was apprised by the communication under No.F.10(11)-Rev/10 dated 11.02.2020 [Annexure-6 to the writ petition] that the said prayer was examined by the department and that has been disposed by the government in the Revenue Department.

The petitioner has asserted that she discharged her duties till 15.02.2020. By the memorandum No.F.9(5)/DUE/19/7713-16 dated 15.02.2020 [Annexure-7 to the writ petition] the petitioner was apprised that her letter dated 21.01.2020 intimating intention of withdrawal of voluntary retirement of the petitioner has not been favourably considered by the government in the Revenue Department. By the said memorandum dated 15.02.2020 it has been clearly observed that the petitioner will be treated as released from the government service on voluntary retirement with effect from the afternoon of 31.12.2019. The consequential orders had thereafter issued by the competent authorities. On 29.01.2020, the under Secretary to the Government of Tripura to the Revenue Department had communicated that the voluntary retirement of the petitioner came into effect from 31.12.2019 as per her prayer. Thus, the petitioner cannot be allowed to revoke. It has been urged by the petitioner to set aside the memorandum dated 15.02.2020 [Annexure-7 to the writ petition] and to direct the respondents to allow the petitioner to continue in the service.

Mr. B.N. Majumder, learned counsel appearing for the petitioner having referred to the reply filed by the respondents has pointed out that according to the respondents, after approval of the voluntary retirement, the petitioner has no right to seek withdrawal of her application for voluntary retirement as the application was disposed of by the appointing authority. If the petitioner had made the subsequent application for withdrawal of the earlier application before the decision of the appointing authority, then the petitioner had some force to seek the remedy on the matter [para-9 of the reply].

Mr. Majumder, learned counsel has quite emphatically submitted that the said interpretation of law is grossly erroneous inasmuch as Rule 48-A(1) of the CCS (Pension) Rules, 1972 provides that at any time after a government servant has completed 20 years of qualifying service, he may by giving notice of not less than 3 months in writing to the appointing authority, retire from service. It has been further provided in Rule 48-A(4) of the said rules that a Government servant, who has elected to retire under the rule and has given the necessary notice to that effect to the Appointing Authority, shall be precluded from withdrawing his notice except with the specific approval of such authority. Below that provision, the following proviso has been engrafted :

Provided that the request for withdrawal shall be made before the intended date of his retirement.

Mr. Majumder, learned counsel has therefore contended that so far the withdrawal of the notice of voluntary retirement is concerned, the effective date for making request for withdrawal is not the date of acceptance by the competent authority but the intended date of his retirement. The reply is inconsistent with the said proviso and hence the action of the respondents of rejecting the prayer for withdrawal is liable to be interfered with and the petitioner‟s prayer for withdrawal is required to be allowed by permitting the petitioner to continue in the service uninterruptedly. In support of his contention, Mr. Majumder, learned counsel has relied a decision of the apex court in Balram Gupta versus Union of India and Another reported in AIR 1987 SC 2354 where the apex court has almost in a similar case has observed as follows :

"8.The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981. Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective. In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31st March, 1981. The appropriate rule sub-rule (4) of Rule 48-A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done. The approval of the authority was, however, not given. Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority.

Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Fundamental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well .accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter-affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No.2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal. What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportunity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee. It was further stated that there were guidelines which were laid down by the O.M. No. 24(57)-E-V-32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement. What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit. We would advert to certain guidelines and examine if these were violated later. It is only stated that the application for withdrawal was considered in the light of the said guidelines and the request was turned down appropriately. It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer communicates his intention to dissolve the contract of service and unlike resignation it operates without the consent of the other party. It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and automatically brought about the dissolution of contract after the expiry of the notice period. We are unable to accept this submission and this position. The dissolution would be brought about only on the date indicated i.e., 31st of March, 1981, upto that the appellant was and is a Government employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation.

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We hold, therefore, that there was no valid reason for withholding the permission, by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees." [Emphasis added]

Mr. Majumder, learned counsel appearing for the appellant has placed also his reliance on a decision of the apex Court in Shambhu Murari Sinha versus Project and Development India Limited and Another reported in (2002) 3 SCC 437 where it has been observed having referred to Power Finance Corporation Limited versus Pramod Kumar Bhatia reported in (1997) 4 SCC 280 that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.

There is no dispute that by the memorandum dated 15.02.2020 [Annexure-7 to the writ petition] issued by the District Magistrate and Collector, Unakoti, Kailashahar the petitioner was relieved from the government service on voluntary retirement but such release has been given effect from the afternoon of 31.12.2019, meaning retrospectively. Therefore, it can be inferred that till 15.02.2020, the petitioner continued to serve the respondents. Mr. Majumder, learned counsel has submitted that no officer can be relieved from his service retrospectively. Hence, it is apparent on the face of the record that the petitioner had withdrawn her notice of voluntary retirement much before the day when the said voluntary retirement did come into effect i.e. 31.12.2019. Thus, it is apparent on the face of the record that the prayer for withdrawal of the notice for voluntary retirement which was filed on 20.11.2019 [Annexure-3 to the writ petition] was filed much before the date on which the voluntary retirement would have/had come into effect. Hence, as per proviso below Rule 48-A(4) the prayer for withdrawal of the notice for voluntary retirement was pressed within the time. Therefore, the rejection of the said prayer is grossly arbitrary, illegal and unsustainable in law.

From the other side, Mr. M. Debbarma, learned Addl. G.A. appearing for the respondents has submitted that the petitioner ought to have applied for withdrawal before 23.09.2019 when the competent authority accepted the voluntary retirement of the petitioner on observing all codal formalities as laid down in Rule 48-A of CCS (Pension) Rules, 1972. Mr. Debbarma, learned Addl. G.A. has quite emphatically submitted that had the petitioner prayed for withdrawl of the notice for voluntary retirement before the decision of the appointing authority then the petitioner might have some ground to hold for pressing withdrawal of the notice of voluntary retirement. Mr. Debbarma, learned Addl. G.A. has submitted that the petitioner‟s name has been struck off from the roll and she has been paid all retiral benefits according to her entitlement. The respondents cannot be expected to restitute the service of the petitioner after the changes that occurred for acceptance of the prayer for voluntary retirement. Mr. Debbarma, learned Addl. G.A. has produced the records to show the payment of all the retiral benefits that has been made. Further, it is submitted that the pension papers have been processed to the office of the Accountant General, Tripura.

Mr. Debbarma, learned Addl. G.A. has contended that in the prayer for withdrawal of the notice of her voluntary retirement, the petitioner has not assigned any reason or material for revoking his notice of voluntary retirement. Ordinarily, such withdrawal is subject to approval of the competent authority. In this regard, Mr. Debbarma, learned Addl. G.A has relied on a decision of the apex court in Director General ESIC and Another versus Puroshottam Malani [judgment dated 22.07.2008 delivered in Civil Appeal No.4611 of 2008] where the apex court had occasion to observe as follows :

"9. However, in the present case, we find that the incumbent who has given the notice of voluntary retirement on 31.12.1999 and wanted to revoke the same on 22.3.2000, i.e., before the last date 31.3.2000, has not given any explanation whatsoever for revoking the notice of voluntary retirement and has got all the benefits which he was entitled to get on the basis of voluntary retirement. After having received all the benefits of voluntary retirement, the respondent approached the Tribunal for setting aside the order dated 17.4.2000 accepting the notice of voluntary retirement. This conduct of the respondent also disentitles him any benefit.

The government service is not contractual. It is a service which confers status and a person who opts for voluntary retirement and later on wants to revoke the same before the expiry of the period of notice has to satisfy the authorities why he is seeking to revoke the notice of voluntary retirement. Rule 48(2) of the Central Civil Services (Pension) Rules, 1972 clearly states that the incumbent can seek withdrawal of the notice of voluntary retirement but with the specific approval of the authorities. Therefore, as per sub-Rule (2) of Rule 48 of the CCS (Pension) Rules, 1972 specific approval of the authority is required for withdrawal of the notice of voluntary retirement. If the incumbent does not provide any reason or material for revoking his notice of voluntary retirement then it is always open for the authority to decline the request for withdrawal of notice of voluntary retirement. If such discipline is not read into the Rule then perhaps every employee can send a notice for voluntary retirement and revokes the same at his sweet will. This cannot be permitted. The Rule mandates that there should be a specific approval of the appointing authority. Clearly, the Rule provides that the appointing authority can certainly approve or disapprove a request for withdrawal of notice of voluntary retirement.

Therefore, in the facts of the present case where the respondent has not provided for reason for withdrawal of his notice for voluntary retirement and secondly that the respondent had already received all the pensionary benefits including leave encashment, gratuity, commutation etc. and woke up to file an application before the Tribunal as late as November, 2000, we are of the opinion that this appeal deserves to be allowed. Accordingly, we allow this appeal and set aside the impugned judgment and order dated 29.8.2006 of the Division Bench of the High Court and that of the Central Administrative Tribunal, Circuit Bench, Indore dated 13.1.2004."

Having appreciated the submission of the counsel for the parties, this court is of the view that the reason for rejecting the prayer for withdrawal of the notice of voluntary retirement as provided by the respondents is unsustainable, inasmuch as proviso below Rule 48-A(4) of the CCS (Pension) Rules, 1978 clearly provides that the request of withdrawal shall be made before "the intended date of his retirement." The notice for voluntary retirement has been considered under Rule 48-A of the said rules and hence its withdrawal would also be governed by proviso below Rule 48-A(4) of the CCS (Pension) Rules, 1978. True it is that for such withdrawal, specific approval of the competent authority is essentially required. In Balram Gupta(supra) it has been observed that approval is not ipse dixit of the approving authority. Such statutory authority must act reasonably and rationally. What is important in this regard and what is importantly to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the competent authority (the government) from withholding the withdrawal. The government is bound to give the valid reason for withholding the approval. In the present case, no such reason has been given and the reason that has been given is not tenable being contrary to the provision as provided by the said proviso. Conversely, in the prayer for withdrawal, the petitioner has categorically stated that the circumstances under which she served the notice for voluntary retirement had changed and in the "changed circumstances" she intimated to withdraw the notice for voluntary retirement. In Puroshottam Malani (supra) the apex court has laid down that a person who asks for voluntary retirement and later on wants to revoke the same before the expiry of the period of notice has to satisfy the authorities why he is seeking to revoke the notice of voluntary retirement. In the case in hand, the respondents cannot be allowed to hold that no reason or material has been provided for revoking her notice for voluntary retirement. If it was a case where no reason was provided for such revocation, it would have been open for the authority to decline the request for withdrawal of the notice of voluntary retirement. A cumulative reading of the reasons provided by the petitioner for revocation along with the reason for rejection provided by the respondents would show that the respondents have acted completely in a wrong premises. Thus, their action cannot be maintained.

In the result, the respondents are directed to allow the petitioner to revoke her notice for voluntary retirement by acceding to the prayer dated 20.11.2019 [Annexure-3 to the writ petition]. Thus the memorandum of release dated 15.02.2020 [Annexure-7 to the writ petition] stands set aside. The petitioner is directed to refund the entire amount as transferred to her account as payment of retiral benefits within 15 days from today.

The respondents, particularly, the District Magistrate and Collector, Unakoti, Kailashahar [the respondent No.2] shall recall the pension proposal after such deposit is made by the petitioner. Moreover, within 15 days from the day of deposit, the petitioner‟s service shall be restituted and she shall be allowed to continue in the service w.e.f. 01.01.2020 with all service benefits. It is made clear that the respondent No.2 shall pass the required challan or any process on being approached by the petitioner so that the petitioner can deposit the said amount within the stipulated time. The arrears of pay and allowances shall be paid to the petitioner within 3 (three) months from the day of such restitution.

In the result, the writ petition stands allowed.

There shall be no order as to costs.