Narayan Prasad v. District Judge — 1997 DIGILAW 231 (MP)

JUDGMENT S.P. Khare, J. 1. This is a tellers patent appeal against the dismissal of the writ petition challenging the order of refsual of approval to withdraw the notice of voluntary retirement. 2. Undisputed facts of the case arc that appellant Narayan Prasad Kushwaha was working as an upper division clerk in the office of the District & Sessions Judge at Hoshangahad. He was transferred from Hoshangabad to Ratlam by the order dated 16. 11.94 of the High Court, as it was reported to the High Court by the District & Sessions Judge that the work and conduct of the appellant were not satisfactory. He joined at Ratlam on 9.12.1994. He was on the establishment of the District Judge, Ratlam from 9.12.1994 to 23.8.1995 but worked only for 18 days i.e. from 9.12.1994 lo 11.12.1994 and 9.2.1995 to 27.2.1995. A departmental inquiry was initiated against him on 22.2.1995 for his continuous absence from duty. On 23.5.1995 the appellant sent an application (Annexure R-12) by post to the District Judge, Ratlam seeking voluntary retirement from service from 23.8.1995 as per Rule 42 (1) (a) of the M.P. Civil Service Pension Rules, 1976 as he had completed 28 years of qualifying service. This was on plain paper and not in the prescribed form No. 28. 3. On 28.6.1995 the appellant sent the application (Annexure R-15) by post from Hoshangabad to the District Judge, Ratlam for withdrawal of the notice of voluntary retirement. By the order dated 7.7.1995 (Annexure R-17) the District Judge refused lo accord approval to the withdrawal of the said notice. 4. The appellant's case is that his wife was ill. He himself fall ill. He sent an application for leave on 13.4.1995. He was having acute depression. He sent another application for leave on 30.5.1995. A medical certificate was also enclosed with that application. According lo the petitioner the application for voluntary retirement was not in the prescribed form and therefore could not be acted upon. His request for withdrawal of the notice of voluntary retirement was turned down without considering the circumstances of the case and without assigning any reason. 5. It is denied by the respondents that the appellant or his wife were ill. The petitioners did not relish his transfer to Ratlam. He did not want to work there. He was continuously absent for a long time. 5. It is denied by the respondents that the appellant or his wife were ill. The petitioners did not relish his transfer to Ratlam. He did not want to work there. He was continuously absent for a long time. He did not give any valid explanation for his absence from duty in the Departmental inquiry. The application dated 23.5.1995 fulfilled the requirement of form No. 28 and therefore, became effective on notice of voluntary retirement. The District Judge, Ratlam on consideration of the facts and circumstances of the case refused permission to withdraw the notice. One of the circumstances was the long absence of the petitioner from duty before and after such notice. 6. After hearing both the sides it was held by the Single Bench of this Court that there was no substance in the plea that the notice of voluntary retirement was not in the prescribed form. Similarly the pendency of departmental inquiry at the time of asking the voluntary retirement could not render the operation of the notice ineffective. The real contention of the petitioner was that the refusal of approval to withdraw the notice of voluntary retirement was without considering the circumstances of the case. This contention was also negatived and it was found that the decision of the Supreme Court in Balram Gupta Vs. Union of India A.I.R. 1987 S.C. 2354 was distinguishable on facts. 7. In this appeal it is argued on behalf of the appellant that the ratio of the decision of the Supreme Court in Balram's case (supra) is fully applicable to the case of the appellant. It is pointed out that no steps were taken to appoint any other person in the vacancy which would have arisen because of the notices of voluntary retirement given by the petitioner. He had a right to continued employment and he gave the notice seeking retirement due to mental depression "and" long sickness of his wife. It could not be said to be voluntary. The circumstances of the case were not considered by the respondent No. 1 while refusing to give permission to withdraw the notice. The learned counsel appearing on behalf of the respondents refused these contentions and pointed out that the relevant facts and the attendant circumstances were fully considered by the appointing authority and after doing so he did not give approval to the appellant to withdraw the notice of voluntary retirement. The learned counsel appearing on behalf of the respondents refused these contentions and pointed out that the relevant facts and the attendant circumstances were fully considered by the appointing authority and after doing so he did not give approval to the appellant to withdraw the notice of voluntary retirement. 8. Rule 42 (1) (a) of the M.P. Civil Services Pension Rules, 1976 provides that a Government servant may retire at any time after completing 29 years qualifying service by giving a notice in form No. 28 to the appointing authority at least three months before the date on which he wishes to retire. The appellant had completed 28 years of qualifying service. His application dated 23.5.1995 (Annexure R-12) specifically mentioned that he should be given voluntary retirement from 23.8.1995. Thus this application fulfilled the requirements of Rule 42 (1) (a) and form No. 28. It is not material that the notice was not in the prescribed form. The substance is to be preferred to the form. 9. A perusal of Rule 42(1)(a) shows that no reasons are required to be given in the notice seeking voluntary retirement. It is the volition and choice of the Government servant to seek voluntary retirement after completing 28 years of service by giving three months notice. This notice comes into operation after the expiry of the period of three months automatically. The relationship of member and servant conies to an end on completion of the notice period by the unilateral act of the Government servant. Such a notice does not require any acceptance by the appointing authority. The volition act of the Government servant brings an end to the "binding knot." 10. The decision of this Court in Indra Prakesh Vs. State of M.P. 1985 M.P.L.J. 274 taken the same view. It was held that a Government servant who has completed 20 years qualifying service has an absolute and indefeasible right to retire at any date of his choice. The notice of voluntary retirement does not require any order or acceptance by the appointing authority. 11. State of M.P. 1985 M.P.L.J. 274 taken the same view. It was held that a Government servant who has completed 20 years qualifying service has an absolute and indefeasible right to retire at any date of his choice. The notice of voluntary retirement does not require any order or acceptance by the appointing authority. 11. Rule 42 (2) further provided that a Government servant who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall he precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him. Thus the notice of voluntary retirement cannot be withdrawn as of right. The rule puts an embargo on the right of the Government servant to do so. Then it carves out an exception. That exception gives a discretion to the appointing authority to permit withdrawal of the notice of voluntary retirement. That discretion is to be exercised "On consideration of the circumstances of the case". The appointing authority has to apply his mind objectively and take into account the facts and circumstances of the case. The discretion must be exercised rationally and reasonably as laid down by the Supreme Court in Balram Gupta's case (supra) while dealing with similar rule in Central Civil Service (Pension) Rules, 1972. On the facts of that case the Supreme Court found that there was no valid reason for withholding the withdrawal. But in the present case the appropriate reasons have been given for refusing the withdrawal. 12. The appellant sent the application dated 28.6.1995 (Annexure R-15) for withdrawal of the notice of voluntary retirement. In this application it is mentioned that he was under mental depression when he sent the said notice on account of the illness of his wife. He has further stated that his own health has improved and he is prepared to join his duty. The note-sheet (Annexure R-16) recorded by the District Judge, Ratlam shows that those circumstances were considered by him what weighed with him heavily was (hat the appellant remained absent from 23.5.1995 the date of the notice of his voluntary retirement. No application of leave was received from him. The application dated 28.6.1995 was also sent by him by post. All this exhibited obstinate and contumacious conduct of the appellant. No application of leave was received from him. The application dated 28.6.1995 was also sent by him by post. All this exhibited obstinate and contumacious conduct of the appellant. Ho remained absent for nearly six months. In these circumstances the appointing authority refused the permission to withdraw the notice. The action of the appointing authority cannot be said to be arbitrary or unreasonable. The appellant could not be shown any sympathy when he did not show any concern towards his duty. The appointing or controlling authority owes a duty to see that discipline is maintained by he concerned Government servants. Maintenance of office discipline is in public interest. The Supreme Court observed in Balram Gupta's case" 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 he used by the Government to come out a disgruntled or reluctant or troublesome employee. Thus the decision in Balram Gupta's case went in his favour because the appointing authority had not given any valid reason to withhold withdrawal but in the present case such reasons have been given. 13. The scope of judicial review in such matters is limited. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual recalves fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the Court. The person seeking judicial review has to establish that his own conduct is unblameworthy. The Supreme Court has recently remarked in Haryana Urban Development Authority Vs. Roochira Caramios 1996 6 S.C.C. 584 that the power under Article 226 is the power of judicial review. The High Court can only examine the procedural correctness. It cannot go min the merits of the controversy like an appellate authority. "There is no room for any benevolance under article 226. If the Court departs from law and enters the arms of benevolance the perils and pitfalls are too many to recount". 14. In the view of the foregoing discussion there is no error in the judgment of the Single Bench. The appeal is dismissed.