Raj Kumar Saini vs Union Of India & Ors.

ORDER

“(i)

Quash and set aside the impugned order dated 02.05.2024

(ii)

direct the respondents to accept the VRS application dated 10.05.2023 and release the pension and other pensionary benefits with 12% of interest @pa from the due date till its realization;

(iii)

direct the Respondents to release the GPF with 12% of interest from the due date till its realization;

(iv)

Pass any other order or orders as deemed fit and proper in the facts and circumstances of the case may also he passed in favour of the applicant.”

“27.

During the course of submissions, Mr. Jaswinder Singh has also drawn our attention to the amended Rule i.e., Rule 16(2)(C) to contend that the Rule 16(2)(C) of the Rules has been inserted vide notification dated February 27, 2017 and the same cannot be applied retrospectively. Hence, the request of respondent No.1 for issuance of an order of voluntary retirement by Central Government in pursuance of his voluntary retirement notice dated January 31, 2014 was devoid of any basis. On this, the submission of Mr. Venugopal is that de hors the insertion of Rule 16(2)(C), the Rule 16(2) itself contemplate that a member of service can retire from service by giving at least three months previous notice in writing and it does not contemplate an acceptance by the employer is appealing. In fact, the judgment of the Supreme Court as relied upon by the Tribunal in S.K. Singhal (supra) which is of the year 1999, the Tribunal held that much before the amendment was carried out the right of an IAS Officer to seek VRS and the consequence which flow from such a right was dealt with in the said judgment. We agree with such a conclusion. The insertion of Rule 16(2)(C) has no bearing on Rule 16(2). The Rule 16(2)(C) only stipulates/clarify that if the competent authority does not issue any order before the expiry of the notice period, the voluntary retirement shall become effective from the date of expiry of the said period. The Rule 16(2)(C) does not state that voluntary retirement would become effective only on acceptance by the employer.

28.

In view of our discussion above, we are of the view that the petition is devoid of merit and as such liable to be dismissed. It is ordered accordingly. There shall be no order as to costs.”

“43(1) At any time after a Government servant has completed twenty years‟ qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service and in the case of such retirement the Government servant shall be entitled to a retiring pension calculated in accordance with rule 44:

Provided that before giving notice of voluntary retirement, a Government servant shall request the appropriate administrative authority for a certificate regarding completion of qualifying service of twenty years on the intended 57 date of retirement and the administrative authority shall issue the required certificate within fifteen days of such request by the Government servant and if no such certificate is issued by the administrative authority within the prescribed period of fifteen days, the Government servant may give the notice of voluntary retirement without such certificate:

Provided further that before accepting the notice for voluntary retirement and passing orders in this regard, the appointing authority shall satisfy itself that the Government servant has completed the qualifying service of twenty years:

Provided also that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is,-

(i)

on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes; or

(ii)

(ii) posted abroad in foreign based offices of the Ministries or Departments; or

(iii)

(iii)on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year:

Provided also that a Government servant shall be eligible to retire under this rule only if he has completed or will complete a qualifying service of twenty years on the intended date of retirement and the provision in sub-rule (7) of rule 44 for treating fraction of a year equal to three months and above as a completed six monthly period, shall not be applicable for the purpose of determining the qualifying service under this rule.

(2)

The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3)

It shall be open to the appropriate appointing authority to withhold permission to a Government servant who seeks to retire under this rule in the following circumstances,-

(i)

If the Government servant is under suspension; or

(ii)

If a charge sheet has been issued and the disciplinary proceedings are pending; or

(iii)

If judicial proceedings on charges which may amount to grave misconduct, are pending”

“25.

That apart, in S.K. Singhal (supra), on which reliance has been placed by the Tribunal, the Supreme Court, has in paragraphs 10 to 13 held as under:-

"10.

In Dinesh Chandra Sangma case this Court was dealing with FR 56(c) as it stood then. The Court pointed out that FR 56(b) and FR 56(c) referred to rights respectively conferred on the State and on the employee. FR 56(b) conferred a right on the Government to compulsorily retire an employee in public interest by giving him notice of not less than 3 months in writing or 3 months' pay and allowances in lieu of such notice, after he attained 50 years of age or had completed 25 years of service, whichever was earlier. Correspondingly, FR 56(c) stated as follows:

"56.(c) Any government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier."

It was held by the three-Judge Bench that it was clear that the effect of FR 56(c) was statutory unlike in the case of contracts of employment requiring an express order of acceptance of the retirement notice. It was stated: (SCC p. 445, para 8)

"There is no question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right under FR 56(c)."

It was again stated: (SCC p. 447, para 13)

"13.

FR 56 is one of the statutory rules which binds the Government as well as the government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a government servant to voluntarily retire with three months' previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119."

(emphasis supplied)

and as follows: (SCC pp. 447-48, para 16)

"16.

The appellant has voluntarily retired by three months' notice, not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule."

11.

Another three-Judge Bench in B.J. Shelat case was dealing with Rule 161(2)(i) of the Bombay Civil Services Rules which contained a proviso similar to proviso (b) of FR 56(k) to the effect that "it shall be open to the appointing authority to withhold permission to retire to a government servant who is under suspension, or against whom departmental proceedings are pending or contemplated, and who seeks to retire under this sub-clause". It was noticed that no suspension was in force and no departmental proceedings were pending but, on facts, it could be said that a departmental proceeding was under contemplation. However, on a reading of the rule and the proviso, it was held that inasmuch as no order refusing permission was passed or communicated within the notice period, the voluntary retirement took effect automatically. The Court observed that this result followed even though the right to retire conferred on the employee was not as absolute as in Dinesh Chandra Sangma case [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] but was a qualified right. The Court held as follows: (SCC pp. 205-06, para 7)

"A right is conferred on the government servant under Rule 161(2)(ii) to retire by giving not less than three months' notice on his attaining the prescribed age. Such a right is subject to the proviso which is incorporated to the sub-section which reads as follows: * * *

But for the proviso, a government servant would be at liberty to retire by giving not less than three months' notice in writing to the appointing authority on attaining the prescribed age. This position has been made clear by this Court in Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] where the Court was considering the effect of the (Assam) Fundamental Rule 56(c)...." The Court further stated: (SCC p. 206, para 7)

"But for the proviso to Rule 161(2)(ii) the decision of this Court in the case cited above would be applicable and the right would have been absolute. But the proviso has restricted the right conferred on the government servant. ... Thus the permission to retire can be withheld by the appointing authority either when the government servant is under suspension or against whom departmental proceedings are pending or contemplated. ... No departmental proceeding was pending but on the facts one cannot say that a proceeding was not under contemplation."

(emphasis supplied)

Having stated that the right conferred on the government servant was not absolute but conditional and that one of the conditions, namely, that departmental proceedings were contemplated was in existence which could have been taken advantage of by the Government, the Court held as follows: (SCC p. 207, para 8)

"In the case before us it is incumbent on the appointing authority to withhold permission to retire on one of the conditions mentioned in the proviso. We are of the opinion that the proviso contemplates a positive action by the appointing authority."

(emphasis supplied)

and it was finally declared: (SCC p. 207, para 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. ... admittedly the order of suspension was not communicated before the date of superannuation."

(emphasis supplied)

And explaining the identical proviso in proviso (b) to FR 56(k), this Court again reiterated that: (SCC p. 208, para 10) "

[I]t is incumbent on the Government to communicate to the government servant its decision to withhold permission to retire on one of the grounds specified in the proviso."

(emphasis supplied)

It was further made clear (at SCC p. 208, para 11) that the appointing authority

"has no jurisdiction to take disciplinary proceedings against a government servant who had effectively retired".

It was held that: (SCC p. 209, para 11)

"disciplinary action cannot be taken after the date of (his) retirement."

(emphasis supplied) Therefore, it was necessary to communicate the decision of refusal of permission before the expiry of the notice period.

12.

The third case which falls in the first category is the one in Union of India v. Sayed Muzaffar Mir decided by a Bench of two learned Judges. In this case, the abovesaid two rulings were followed. The case arose under Rule 1802(b)(1) of the Railway Establishment Code. In that case, the respondent had given a notice on 22-7-1985 of 3 months to the Railways to retire from service as visualised by Rule 1802(b). The period expired on 21-10-1985 and the order of removal was passed on 4-11-1985. The proviso to the rule permitted withholding of permission to retire in case the employee was under suspension. As a fact, the employee was under suspension at the relevant time and this could have been taken advantage of by the Government. In fact, Rule 1801(d) which started with a non obstante clause stated that the competent authority might require a railway servant under suspension to continue his service beyond the date of his retirement in which case he shall not be permitted by that authority to retire from service and shall be retained in service till such time as required by that authority. It was held that even though the officer was under suspension and the request for retirement could be denied, still an order withholding such permission or requiring him to continue, was required to be passed. It was "admitted" that no such order was passed. Therefore, it was held that the employer had not exercised a right given to it under Rule 1801(d). The Court further observed that in Dinesh Chandra Sangma case it was held that "the same does not require acceptance and comes into effect on the completion of the notice period" and that that decision was followed in B.J. Shelat case. The Court finally held: (SCC p. 77, para 6)

"6.

The period of notice in the present case having expired on 21-10-1985, and the first order of removal having been passed on 4-11-1985, we hold that the Tribunal had rightly come to the conclusion that the order of removal was non est in the eye of the law."

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 case by the relevant rules and 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. If, however, as in B.J. Shelat case and as in Sayed Muzaffar Mir case the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz., in case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the expiry of the period specified. 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 as stated in B.J. Shelat case and in Sayed Muzaffar Mir case before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-communication of acceptance should be treated as amounting to withholding of permission."