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Judgment
Cyriac Joseph, C.J.—The petitioner challenges Annexure-A order dated 2.6.2008 passed by the Karnataka Administrative Tribunal in Application No. 2576/2008 which was rued by the petitioner himself. As per the said order dated 2.6.2008, the Tribunal issued notice to the respondents in the application, but refused to grant any interim order observing that the Tribunal was of the view that it was not a case where the applicant was entitled for an ex parte interim order sought for by him in the application without notice to the respondents. Aggrieved by the refusal to grant an ex parte interim order, the applicant in Application No.2576/2008 has filed this writ petition.
Having heard learned Counsel for the petitioner and having considered the materials placed on record, we felt that since the writ petition is filed against an order refusing to pass an ex parte interim order and since the prayer for interim order will come again before the Tribunal, it is not a fit case for interference under Article 226 of the Constitution of India. However, learned Senior Counsel appearing for the petitioner submitted that the applicant in Application No. 2576/2008 had established a strong prima facie case and hence the Tribunal ought to have granted an ex parte interim order. Learned Counsel also contended that notwithstanding the fact that the impugned order is an interim order, this Court can entertain the writ petition and pass an interim order in favour of the petitioner if the petitioner is able to establish that he had a strong prima facie case before the Tribunal. Therefore, we allowed the learned Senior Counsel to argue the matter in detail and we have considered the submissions made by the learned Senior Counsel.
The petitioner is a Karnataka Administrative Service Officer and in the cadre of Joint Director of Social Welfare. While he was working as Managing Director of Karnataka State Women Development Corporation, he submitted Annexure-A1 application dated 4.2.2008 seeking permission to voluntarily retire from service under Rule 285 of the Karnataka Civil Services Rules. The reason stated in the application dated 4.2.2008 is that he was not able to discharge his official duties due to domestic problems. There was no immediate response to the said application from the Government. Hence he submitted another letter dated 8.4.2008 reiterating his request for permission to take voluntary retirement. In the letter dated 8.4.2008, he requested that orders may be issued permitting voluntary retirement with effect from 10.4.2008. But strangely in his letter dated 8.4.2008, the petitioner stated that he had got a ticket from Bharatiya Janata Party to contest in the next Assembly election and that the list of candidates would be announced on 10.4.2008 and hence orders may be issued permitting voluntary retirement with effect from 10.4.2008 enabling him to contest in the next Assembly election. Thereafter the petitioner submitted a letter dated 9.4.2008 addressed to the Secretary to Government, Women and Child Development Department, Government of Karnataka, stating, that he had requested for permission for voluntary retirement, assuming that Bharatiya Janata Party would issue a ticket to him to contest in the Assembly election, but unfortunately ticket was not issued to him as announced on 10.4.2008; that orders have not been issued accepting his request for voluntary retirement and that he was withdrawing his request for voluntary retirement, since the Accountant General had not issued clearance certificate (i.e. No Due Certificate). Though the said letter carries the date ''9.4.2008'' and also carries an office seal, vide Annexure-A3 order dated 27.5.2008, the Government granted permission to the petitioner to retire from service voluntarily with effect from 10.4.2008 under Rule 285(1)(a) of Karnataka Civil Services Rules. Challenging the said order dated 27.5.2008, the petitioner filed Application No. 2576/2008 before the Karnataka Administrative Tribunal.
Having regard to the facts and circumstances of the case, we are not satisfied that the petitioner had established a strong prima facie case in Application No. 2576/2008. Admittedly, the petitioner had submitted an application seeking permission for voluntary retirement. As per Rule 285(2)(i), a Government servant seeking voluntary retirement is obliged to give a notice of at least 3 months in writing to the Appointing Authority. As per Rule 285(2)(ix), a notice of less than three months may be accepted by the appointing authority in deserving cases with the prior approval of Government. The appointing authority of the petitioner is the Government itself. According to Rule 285(2)(x), withdrawal of request of voluntary retirement can be allowed subject to 3 conditions:
(i) The application for withdrawal of the request for voluntary retirement should have been submitted before the intended date of retirement;
(ii) The Government servant should establish that there has been a material change in the circumstances in consideration of which, the notice was originally given;
(iii) The appointing authority should accord approval for such withdrawal.
In other words, even if conditions (i) and (ii) are satisfied, permission for withdrawal of the request for voluntary retirement, is not automatic. The appointing authority has the discretion to grant or refuse the application for withdrawal of voluntary retirement.
In the present case, according to the notice dated 4.2.2008, originally given by the petitioner, the reason for seeking voluntary retirement is that the petitioner was not able to discharge his official duties due to domestic problems. Therefore the circumstance in consideration of which the notice was originally given was, domestic problems. In the application dated 9.4.2008, there is no mention of any change in the circumstance mentioned in the application dated 4.2.2008. On the other hand, a different reason is stated in the application dated 9.4.2008. The new reason is that the petitioner was expecting to get Bharatiya Janata Party ticket to contest in the Assembly election, but he could not get a ticket for contesting the election. Thus condition (ii) viz., material change in the circumstance in consideration of which, the notice was originally given, is not satisfied in the case.
According to Rule 285(2)(x), the application for withdrawal of the request for voluntary retirement should be submitted within the intended date of retirement. In the application dated 4.2.2008, the petitioner had requested that he may be permitted to retire from service and his retirement benefits may be sanctioned to him immediately. The said application dated 4.2.2008 should be treated as a notice under Rule 285(2)(i). Though no specific date was mentioned in the application dated 4.2.2008, the petitioner submitted a letter dated 8.4.2008 requesting that he may be permitted to retire with effect from 10.4.2008. Thus the intended date of retirement in this case should be taken as 10.4.2008. According to the petitioner, he submitted the application for withdrawal of request for voluntary retirement on 9.4.2008. He relies on Annexure-A2 letter dated 9.4.2008. However, the Government have taken the stand that though the letter is dated 9.4.2008, it was actually submitted only on 11.4.2008. The Government noticed the discrepancy in the claim that the application for withdrawal was made on 9.4.2008. In the letter dated 9.4.2008, the petitioner had stated that he had not been issued ticket by Bharatiya Janata Party as announced on 10.4.2008. If the letter dated 9.4.2008 was actually written and submitted on 9.4.2008, the petitioner could not have referred to the announcement on 10.4.2008. It is also seen that apart from Annexure-A2 letter dated 9.4.2008 addressed to the Secretary to Government, Women and Child Development Department, the petitioner also submitted a separate letter dated 9.4.2008 to the Principal Secretary to Government, Department of Social Welfare. There also the petitioner had stated that he had not been issued ticket from Bharatiya Janata Party, as announced on 10.4.2008. The said letter was directly submitted to the Principal Secretary to Government on 11.4.2008, as the letter carries an endorsement of the Principal Secretary to Government with date ''11.4.2008''. There is detailed discussion and consideration of this aspect in the Government file and the Government rightly concluded that though the application for withdrawal was dated 9.4.2008, it was actually submitted only on 11.4.2008 and therefore the application for withdrawal was submitted after the intended date of retirement and hence permission cannot be granted to withdraw the request for voluntary retirement. Though we are inclined to think that some unsuccessful attempt was made by the then Principal Secretary to Government, Social Welfare Department, to create the impression that the application for withdrawal was submitted on 9.4.2008, the records showed otherwise and the Government finally came to the conclusion that the application for withdrawal was not submitted within the intended date of retirement. Thus condition (i) in Rule 285(2)(x) also is not satisfied in this case.
As observed earlier, even if the above mentioned 2 conditions are satisfied, still the Government have got the discretion to refuse permission to withdraw voluntary retirement. However, such decision by the Government should be objective and should not be arbitrary. In this case, the Government''s decision to reject the request for withdrawal of the application for voluntary retirement, is objective and not arbitrary. The Government was satisfied that the application for withdrawal was not submitted within the intended date of retirement and that the petitioner did not establish material changes in the circumstances, which prompted him to submit the application for voluntary retirement originally. In our view, the Government exercised its power and discretion properly and it is not vitiated by any illegality. Thus condition (iii) under Rule 285(2)(x) also is not satisfied in this case.
We may also observe that the conduct of the petitioner does not entitle him for any indulgence or sympathetic consideration. First he submitted the application for voluntary retirement on the ground that he could not discharge his official duties due to domestic problems. Later the cat came out of the bag when he submitted the letter dated 8.4.2008 stating that he had been granted a ticket to contest in the election to the Assembly by a political party and therefore his request for voluntary retirement should be accepted with effect from 10.4.2008 to enable him to contest in the election. Later when he found that he was not given the ticket by the political party, the petitioner wanted to withdraw his application and get back into Government service. For that purpose predated documents were created and submitted, to enable the Government to grant the request for withdrawal. It is obvious that the entire exercise of the petitioner was an unsuccessful attempt to enter party politics and contest in the Assembly election. When the Government have taken a decision to spoil such sinister effort on the part of the petitioner, neither the Tribunal, nor the Court can find fault with the Government. The Court or the Tribunal should not come to the aid of such a person to re-enter Government service.
Thus, looked from any angle, the petitioner was not entitled to any ex parte interim order in his favour from the Karnataka Appellate Tribunal.
Therefore, the impugned order of the Tribunal does not call for any interference by this Court under Article 226 or 227 of the Constitution of India. Hence, the writ petition is dismissed.