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2000 DIGILAW 402 (PNJ)

Vinod Shanker v. Kurukshetra University And Anr.

2000-04-17

G.S.SINGHVI, JAGDISH SINGH KHEHAR

body2000
Judgment G.S.Singhvi, J. 1. The petitioner has prayed for quashing of the decision taken by the vice-Chancellor, Kurukshetra University, Kurukshetra (respondent No. 2. ) declining his request for withdrawal of notice dated 11.10.1999 vide which he had sought voluntary retirement from service with effect from 1.2.2000. 2. The notice issued by the Court on February 2, 2000 for final disposal of the writ petition have been duly served upon the respondents but neither the written statement has been filed nor anyone has appeared on their behalf to contest the petition. Therefore, we shall decide the petition on the premise that there is no controversy between the parties on the factual matrix of the case. 3. A perusal of the record that after having served the university for over 23 years, the petitioner submitted letter dated 11.10.1999, which was described as notice for voluntary retirement with effect from 1.2.2000. Respondent No. 2 accepted his request in anticipation of the approval of the executive council and this was conveyed to the petitioner vide letter dated 13.10.1999. However, one month and two days before the actual date of retirement, the petitioner submitted application dated 29.12.1999 with the request that the date of his voluntary retirement may be changed from 1.2.2000 to 1.8.2000. This was considered and rejected by the Executive Council of the university in its meeting held on January 5, 2000. Simultaneously, the action taken by respondent No. 2 was approved. The petitioner challenged that decision in Civil Writ Petition No. 867 of 2000, which was dismissed on January 25, 2000 with liberty to him to submit application for withdrawal of his request of voluntary retirement. The operative portion of the order passed by this Court reads as under:- "For the reasons mentioned above, the writ petition is dismissed. However, we give liberty to the petitioner to make an application seeking withdrawal of his request for voluntary retirement and hope that the same will receive due consideration by the respondent-University in the light of the decision of the Supreme Court in Balram Guptas case (supra) and other decisions." 4. Thereafter, the petitioner submitted detailed application for withdrawal of his request of voluntary retirement but without assigning any reason, respondent No. 2 refused to accept his request. 5. We have heard the petitioner and perused the record. Thereafter, the petitioner submitted detailed application for withdrawal of his request of voluntary retirement but without assigning any reason, respondent No. 2 refused to accept his request. 5. We have heard the petitioner and perused the record. The question as to whether a person can withdraw his request for voluntary retirement/resignation before the effective date has been considered and answered in affirmative in the following decisions:- 1. Union of India v. Gopal Chandra Misra, (978) 2 SCC 301. 2. Balram Gupta v. Union of India and Anr., JT 1987 (3) SC 480 3. Punjab National Bank v. P.K. Mittal, JT 1989 (1) SC 264. 4. Ravinder Singh v. State of M.P. and Ors. 1995 (3) RSJ 904. 5. Nand Keshawar Prasad v. Indian Fanners Fertilizers Cooperative Limited and Ors., 1998 (3) RSJ 765. 6. Sham Sunder Teacher v. Director of School Education, Haryana, Chandigarh and Ors., 1996 (3) RSJ 806. 7. Dr. (Mrs.) Sumitra Devi v. State of Haryana and Ors., 1982 (3) SLR 21. 8. Rajbir Singh v. Haryana State Cooperative Development Federation Limited, Chandigarh, 1992 (3) RSJ 119. 6. In Gopal Chandra Misras case (supra), their Lordships of the Supreme Court held that in the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent of his intention or proposal to resign his office/post from a future specified date can be withdrawn by him by any time before it becomes effective i.e. before it effects termination of the tenure of the office/post or employment. 7. Though, the Gopal Chandra Misras case (supra) was decided in the context of the interpretation of Article 217 of the Constitution, the ratio of that decision was followed and applied in a case of a civil servant in Balram Gupta v. Union of India and another (supra). In that case, the employee had sent his letter of resignation on 24.10.1980 mentioning therein that the resignation be made effective with effect from 31.3.1981. The resignation was accepted by the employer on 20.1.1981. The employee withdrew resignation on 31.1.1981 i.e. after the acceptance but before the date it was to become effective. The employer did not permit him to withdraw the resignation. While accepting the plea of the appellant, their Lordships of the Supreme Court held as under:- "It could not be submitted that once notice was given it became operative immediately. The employee withdrew resignation on 31.1.1981 i.e. after the acceptance but before the date it was to become effective. The employer did not permit him to withdraw the resignation. While accepting the plea of the appellant, their Lordships of the Supreme Court held as under:- "It could not be 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. The dissolution would be brought about only on the date indicated, i.e. 31st 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 48A 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. 8. The same proposition has been reiterated in Punjab National Bank v. P.K. Mittal (supra) in the following words:- "It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation become effective on the terms of the letter read with regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here. It is not necessary to labour this point further as it is well settled by the earlier decisions of this Court in Raj Kumar v. Union of India (1968-3 SCR 857), Union of India v. Gopal Chandra Misra (1978-3 SCR 12) and Balram Gupta v. Union of India (JT 1987 (3) SC 480) ." 9. In the other cases, the ratio of Balram Guptas case (supra) has been invoked for nullifying the decision of the employer not to allow the employee to join duty even though he/she had withdrawn the request for resignation/retirement before the acceptance of request of resignation/retirement could become effective. 10. In the light of the above, we may now examine the petitioners case. 10. In the light of the above, we may now examine the petitioners case. Clause 3 of Ordinance XX of the Kurukshetra University Calendar, Volume-1, 1997, which regulates the retirement of a University teacher reads as under:- "3. Subject to the provisions of Clause 6, 7, and 8 of the Agreement of Service, a person appointed as a permanent teacher of the University shall be entitled to be in the service of the University until, he completes the age of sixty. A University teacher may, however, seek voluntary retirement after 20 years service or on the attainment of 55 years of age, with the approval of the appointing authority." 11. A bare reading of the above quoted provision shows that a University teacher is entitled to remain in the service upto the age of 60 years in terms of substantive part of clause but under the proviso he can seek voluntary retirement after 20 years service or on attaining the age of 55 years subject to the approval of the appointing authority. However, the rule is totally silent about the right of the teacher concerned to seek withdrawal of the request of voluntary retirement. It also does not specify the reasons/grounds on which the appointing authority can refuse to entertain such request. Therefore, by applying the ratio of Gopal Chandra Misras case (supra): Balram Guptas case (supra) and P.K. Mittals case (supra), we hold that in the absence of any specific rule to the contrary, a University teacher can withdraw the letter of voluntary retirement and the competent authority cannot withhold approval without assigning cogent reason. 12. In the backdrop of the above discussion, it will be useful to take a stock of the reasons which prompted the petitioner to seek voluntary retirement from service and then apply for withdrawal thereof. In the application/notice of voluntary retirement, he had not given any reason for seeking premature retirement with effect from February I, 2000 as is evident from the following extract of Annexure-P.1: " I have the honour to submit that for some personal reasons I want to seek voluntary retirement from Kurukshetra University Service as professor of Philosophy with effect from Feb. 1, 2000. Hence, it is hereby requested that the period from Nov. 1999 to Jan. 1, 2000 may be treated as three months notice period prior to my voluntary retirement commencing on Feb. 1, 2000. 1, 2000. Hence, it is hereby requested that the period from Nov. 1999 to Jan. 1, 2000 may be treated as three months notice period prior to my voluntary retirement commencing on Feb. 1, 2000. It is requested further that the benefits relating to voluntary retirement permissible under University Rules may kindly be granted to me. I shall feel obliged if the matter under reference is decided by your goodself at the earliest so that the process of completion of the requisite formalities concerning the grant of pension may be initiated on time." 13. However, in the letter Annexure-P.3 dated December 29,1999, he had indicated the following reasons for change of mind:- "(i) The teaching of the papers of M.A. (Philosophy) assigned to me during current academic session will not be complete by Jan. 31, 2000; the completion of this work may require the period of a few months more. (ii) The research work of a Ph.D. student registered under my supervision, who has been a recipient of University scholarship, is likely to reach its completion for submission by July, 2000. (iii) The implementation of the revised U.G.C. grades in respect of the professors promoted under personal promotion Scheme including myself may take some more time, and the non-implementation of the said grades will involve certain difficulties in the finalisation of my pension case." 14. In the application dated 27.1.2000 also, the petitioner had given detailed reasons for withdrawal of the letter of retirement. The extracts of that letter are reproduced below :- "The Executive Council vide decision dated 5.1.2000 has turned down my request dated 29.12.1999. I had also filed a Civil Writ Petition No. 867 of 2000 in the Punjab and Haryana High Court with a prayer that I have right to withdraw the request of voluntary retirement prior to 1.2.2000. The above writ petition was dismissed by the Division Bench on 25.1.2000 with the observation that my request for voluntary retirement is not in clear terms. So, I have reconsidered the matter and have finally decided to withdraw my earlier requests to seek voluntary retirement w.e.f. 1.2.2000 as well as w.e.f. 1.8.2000. Consequently, I wish to continue in service and my earlier requests to seek voluntary retirement w.e.f. 1.2.2000 as well as 1.8.2000 may kindly be treated as withdrawn. So, I have reconsidered the matter and have finally decided to withdraw my earlier requests to seek voluntary retirement w.e.f. 1.2.2000 as well as w.e.f. 1.8.2000. Consequently, I wish to continue in service and my earlier requests to seek voluntary retirement w.e.f. 1.2.2000 as well as 1.8.2000 may kindly be treated as withdrawn. That Division Bench has also observed in its decision (copy of which has not yet been provided to the petitioner) that if the petitioner will make request in clear terms for withdrawal of voluntary retirement, the University authorities will take action in accordance with the law laid down by the Honble Supreme Court in Balrams case reported in AIR 1987 Supreme Court 2354, copy of which is enclosed herewith. In view of the submission made above, I hereby request that the earlier requests made by me for voluntary retirement with effect from 1.2.2000 and 1.8.2000 may be considered as withdrawn for all intent and purpose and I may be allowed to continue in service. I further request that the above request of mine may kindly be accepted prior to 1.2.2000 by exercising the emergency power vested in the worthy Vice-Chancellor and I may be informed accordingly. The Chairmam of the Philosophy Department may also be directed not to relieve me from service on 1.2.2000. 15. Respondent No. 2 rejected the request of the petitioner without assigning any reason and to this effect, communication was sent to him by the Registrar of the University. This is evident from a bare reading of the impugned letter Annexure-p.7, the relevant portion of which is reproduced below:- "I am refer to your office letter No. Phil/2000/723 dated 28.1.2000 on the subject cited above and to inform you that the request of Dr. Vinod Shanker dated 27.2.2000 has been considered by the Vice-Chancellor but it is requested that the same has not been accepted to. He may, therefore, be relieved on 31.1.2000 (A.N.)." 16. I conjoint reading of letter dated 29.1.1999 and the application dated 27.1.2000 shows that the petitioner had given good reasons for withdrawing his request for voluntary retirement, the most important was the possible harm to the students due to his leaving in the midst of their Ph. D. course and studies. This, he had done before the date stipulated in Annexure-P.1 i.e. 1.2.2000. However, without assigning any reason, respondent No. 2 declined to accept his request. D. course and studies. This, he had done before the date stipulated in Annexure-P.1 i.e. 1.2.2000. However, without assigning any reason, respondent No. 2 declined to accept his request. The communication sent by the Registrar of the University simply mentions that the Vice-Chancellor has not acceded to his request. Why he has done so? Was it legally impermissible or the grounds set out in the application submitted by the petitioner were incorrect? The impugned decision is totally silent on these aspects. Therefore, we have no hesitation to hold that the rejection of the petitioners request is wholly arbitrary and capricious justifying interference by this Court. 17. For the reasons mentioned above, the writ petition is allowed. Rejection of the petitioners prayer for permission to withdraw the request of voluntary retirement is declared illegal and quashed with the direction that the petitioner shall be allowed to continue in service. He shall also get all consequential benefits and be allowed to retain the accommodation allotted to him as a teacher of the University.