Sanjay Kaushik vs Union Of India

S.N. Terdal, J

We have heard Mr. Nilansh Gaur, counsel for applicant and Mr. Rajinder Nischal, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In the OA, the applicant has prayed for the following reliefs:

"8.1. Set aside the impugned orders;

8.2. Direct the respondent to allow withdrawal of the request of the applicant of voluntary retirement in relaxation on concurrence with the DOPT as per Rule 88 of the Pension Rules and thereafter, to allow the applicant to join his duties by deciding the interregnum period as leave of the kind due with continuity of service for retrial benefits; and

8.3. Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case."

The relevant undisputed facts of the case are that the applicant was promoted to the entry grade of NCT of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Service (DANICS) vide order dated 3.06.2011 against the promotional quota vacancy of DANICS and was posted to Andaman & Nicobar Islands Administration (A&N Islands Administration). As per the policy, the promotee officers of DANICS are required to serve one tenure of two years in outlying posting in any of the Union Territories and the applicant who was the promotee officer was posted in A&N Islands Administration as per the said policy and accordingly he joined the promoted post in A&N Islands in September, 2012 and subsequently vide his letter dated 12.12.2012 he sought voluntary retirement citing personal reasons/problems and requested that he may be posted in Delhi before the effective date of his retirement and he also submitted an application supported by an affidavit that in case his request for posting to Delhi before effective date of his voluntary retirement is made he would not withdraw his application dated 12.12.2012 requesting for voluntary retirement. Subsequently, as per his request he was permitted to retire voluntarily under Rule 48A of the CCS (Pension) Rules, 1972 w.e.f. 18.03.2013 instead of 13.03.2013. But, however, after his retirement he made representation dated 01.04.2013 allowing him to withdraw the notice of voluntary retirement. Subsequently he made several representations. But, however, vide order dated 17.04.2015 by detailed, reasoned and speaking order the representation of the applicant seeking permission to withdraw his voluntary retirement notice was rejected. The said order dated 17.04.2015 is under challenge in this OA.

The counsel for the applicant vehemently and strenuously contended that the impugned order dated 17.04.2015 is not a speaking order and that without exercising discretion in his favour in view of the provision of Rule 88 of the CCS (Pension) Rules, 1972 and in view of the submissions made by the applicant in his representation the above said impugned order has been passed and as such it requires to be set aside. The counsel for the respondents equally vehemently and strenuously contended that the impugned order is a detailed, cogently, reasoned and speaking order they have taken into account every aspects and every rules applicable in the case including Rule 88 of the said Rules. He invited our notice to the entire order, which is extracted below:-

"Sub: Representation seeking permission to withdraw the voluntary retirement notice and to rejoin the duties by Shri Sanjay Kaushik, Entry Grade officer of DANICS (Retired)-regarding

WHEREAS, Shri Sanjay Kaushik, Entry Grade officer of DANICS (Retired) while posted at A&N Island, had submitted a notice dated 12.12.2012 seeking voluntary retirement from service w.e.f.13.03.2013. The matter was examined and with approval of the competent authority, it was decided to accept the notice of voluntary retirement submitted by Shri Kaushik and to permit him to retire voluntarily from Government service w.e.f. 13.03.2013.

AND WHEREAS, in the meantime, vide letter dated 8.3.013, Shri Kaushik had requested to change the date of voluntary retirement to 18.03.2013 in place of 13.03.2013. He had also requested for transfer from A&N Island to Delhi so that he can get pension from Delhi. Alongwith his application, Shri Kaushik had also submitted an affidavit stating inter-alia that he shall not withdraw the request for grant of voluntary retirement even if he is posted at Delhi under any circumstances ad will stand responsible for the requests made to the Government of India. After considering the request of Shri Kaushik, he made transferred to Delhi and was allowed to retire voluntarily w.e.f. 18.3.2013.

AND WHEREAS, later vide representation dated 1.4.2013, Shri Kaushik had requested the Ministry inter-alia to allow him to withdraw the notice of voluntary retirement and re-induct him in the service. His request was examined in the Ministry and it was found that as per the Rul2 48A (4) of the CCS (Pension) Rules, 1972, the permission to withdraw the notice was not admissible. Keeping in view the rule position and the fact that Shri Kaushik had given an undertaking (affidavit) that he will not withdraw the notice, the request of Shri Kaushik was rejected. Shri Kaushik kept on submitting representations requesting to withdraw the notice of voluntary retirement. However, the representations were rejected with approval of the competent authority.

AND WHEREAS, Shri Kaushik had again submitted a representation dated 28.11.2014, wherein he had inter-alia cited some cases claiming that in those cases, the Government of India had granted permission to withdraw the notice of voluntary retirement after the date of retirement. As per the request of the applicant, the matter was referred to the DoPT for their considered opinion.

AND WHEREAS, the DoP&T while considering the matter, advised inter-alia that the Head of Department of the Administrative Ministry may perhaps re-examine the case as to whether the same deserves relaxation to the notice period of withdrawal of voluntary retirement.

AND WHEREAS, as advised by the DoP&T, the matter has been re-examined in the Ministry. The competent authority has observed that Shri Kaushik had applied for voluntary retirement w.e.f. 13.3.2013 vide his application dated 12.12.2012. Subsequently, vide his application dated 8.3.2013, he had requested to change the intended date of retirement to 18.03.2013. It is beyond understanding as to what material changes had taken place between 18.3.2013 and 1.4.2013 which compelled Shri Kaushik to withdraw the notice of voluntary retirement. If Shri Kaushik was keen to withdraw the notice of voluntary retirement, he should have approached the Ministry on or prior to 18.3.2013.

AND WHEREAS the competent authority has also observed that prior to his retirement (voluntary), Shri Kaushik was working as Entry Grade officer of DANICS. He was inducted to DANICS against promotion quota vacancies. As per the transfer policy of DANICS, he was require to serve on tenure of 2 years in any one of the outlying Segments (outside Delhi), namely, A&N, DD& DNH or Lakshadweep. Accordingly, vide Order dated 29.05.2012, he was transferred to A&N on arrival of his turn, which was decided on the basis of the seniority list. Shri Kaushik had applied for VRS after having been posted at A&N. He might have some domestic problems, which could have been addressed by taking leave. However, he had not done so, and, instead opted for voluntary retirement, though as per the provisions of the transfer policy, on completion of the outlying tenure(2 years in his case), DANICS officers are posted back to Delhi.

AND WHEREAS in his representation Shri Kaushik has mentioned that as per the advice of the Chief Secretary, A&N he had requested for transfer back to Delhi vide representation dated 20.12.2012. As per his submission, he was ready to take his mother to A&N and he had booked air ticked for that purpose. In the meanwhile, to his surprise, as contended by Shri Kaushik, the Ministry had accepted the notice of voluntary retirement. The contentions of Shri Kaushik have been considered by the competent authority and are found baseless, inter-alia, because on 8.3.2013 Shri Kaushik himself had requested to change the intended date of retirement from 13.3.2013 to 18.3.2013 and to transfer him to Delhi for the purpose of retirement and he had given an affidavit also in this regard. Therefore, till 8.3.2013 he was of the firm view to opt for voluntary retirement. The notification dated 11.3.2013 was as per the request made by him on 8.3.2013. It is beyond understanding of the Ministry as to why he was surprised to see a notification which was as per his request made just 3 days before the date of notification. Further, if Shri Kaushik was keen to withdraw the voluntary retirement notice, he would have immediately approached the Ministry to withdraw the notice. Had he applied for withdrawal before 18.3.2013, the date of retirement, the scenario would be different. The applicant had applied for withdrawal of the notice of voluntary retirement vide representation dated 1.4.2013, i.e., after the date of retirement. If he was keen to withdraw the notice of retirement, he could have applied before 18.3.2013. However, till the date of retirement, he was firm on his decision. In his representation, Shri Kaushik has mentioned that his mother, family and friends persuaded him to withdraw the notice of voluntary retirement, which indicates that he has requested for withdrawal under pressure.

AND WHEREAS Shri Kaushik has claimed that he had booked air tickets for himself and his mother for 5.3.2013 and subsequently for 8.3.2013 with the intention of returning to and continuing with his service. However, as explained in the previous para, the applicant had submitted a representation dated 8.3.2013 requesting to change the intended date of retirement from 13.3.2013 to 18.3.2013 and to transfer him to Delhi for the purpose of retirement and he had given an affidavit also in this regard. If he was ready to go to A&N on 8.3.2015 to join his duties alongwith his mother, he should have requested for withdrawal of the notice of voluntary retirement instead of making request for changing the intended date of retirement. The claim of Shri Kaushik is contradictory to the factual position as gathered from the records and it appears an afterthought in his endeavour to somehow substantiate the claim. However, the claim of Shri Kaushik is not acceptable.

AND WHEREAS the request of Shri Kaushik is not acceptable in terms of the Rule 48-A(4) of the CCS (Pension) Rules, 1972 being time barred. Further, the request of Shri Kaushik is in contradiction of his own affidavit submitted with his representation dated 8.3.2013.

AND WHEREAS, in his representation dated 28.11.2014, Shri Kaushik has referred some cases claiming that the Government of India had granted permission to withdraw the notice of voluntary retirement in those cases long after the retirement. The contention of applicant is beyond cognizance as the Ministry is not directly associated with the cases referred by him. The matter was referred to DoP&T for their comments/advice. However, DoP&T has not commented on this aspect. After going through the particulars of the cases referred by Shri Kaushik, it appears that the cases are different from his case. Further, any precedent against the spirit of the Rule/Law cannot replace the Rule/Law. It is absolutely clear that the request of Shri Kaushik is time barred. Further, after going through the case, the competent authority has found no merit for recommending it to DoP&T for consideration by invoking relaxation in the rules.

AND WHEREAS, in his representation Shri Kaushik has mentioned that the Chief Secretary A&N had recommended for his transfer to Delhi. However, the said recommendation of the Chief Secretary, A&N was considered by the Competent Authority in the Ministry and rejected.

AND WHEREAS, the competent authority after thorough and careful examination of the matter has decided that the representation and appeal filed by Shri Kaushik are not legally acceptable. Further, there is no Rule or ground on which the request of Shri Kaushik can be acceded to on humanitarian ground.

NOW, THEREFORE, the competent authority, after going through the representation/appeal of Shri Kaushik, available records and relevant rule position, has decided to reject the request/appeal of Shri Sanjay Kaushik regarding withdrawal of his notice of voluntary retirement, being time barred and devoid of any merit.

This issues with the approval of the competent authority."

We have perused the impugned order extracted above. It is indeed a detailed reasoned and speaking order taking into account all the aspects raised by the applicant in his representation, as such in our view, it does not require to be interfered with.

Accordingly, the OA is dismissed. No order as to costs.