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2008 DIGILAW 609 (RAJ)

Rohitashwa Kumar v. State of Rajasthan

2008-02-27

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. 1. The petitioner by filing this petition prayed to direct the respondents to finalise and treat the voluntary retirement of the petitioner from 1.10.2002 and pay all pensionary and retiral benefits and other benefits including pending dues with all consequential benefits from the date of voluntary retirement and also to quash all penal action if taken by the respondents after the voluntary retirement has attained finality. 2. Brief facts of the case according to the petitioner are that he was appointed on the post of LDC on 12.4.1972. In the year 1993 the petitioner was promoted on the post of UDC. The petitioner was issued a charge-sheet by the respondent department regarding his absence from duty, as he was suffering from Kidney infection, for which he submitted various applications to the respondent department. Because of poor health condition, he was compelled to give a notice for voluntary retirement to the respondent department. He also submitted a medical certificate dated 25.5.2002 before the respondent department. Further a notice of VRS was sent by the petitioner on 25.6.2002. Petitioner requested the respondent department to finalise the case of his VRS. He also requested the respondent by his letter dated 17.10.2002 to pass a final order of his VRS, so that he may get pension and other retiral benefits. Ultimately the petitioner sent a notice for demand of justice on 22.10.2003 but without any result. 3. Feeling aggrieved with the above action on the part of the respondent department, the petitioner has filed instant petition before this Court under Article 226 of the Constitution. 4. In rebuttal the respondent department filed a detailed reply controverting the facts mentioned by the petitioner. The respondent department in the reply has mentioned that the petitioner remained absent from the duty without informing his higher authority, as a result of which a charge-sheet was issued to him on 17.7.2002. The respondent further stated in the reply that disciplinary proceeding is pending against the petitioner and pending proceedings, the petitioner cannot be given the benefits. 5. I have heard learned counsel for the parties and carefully gone through the entire material placed before me. 6. Much reliance has been placed by the learned counsel for the petitioner in the case of SB Civil Writ Petition No. 5347/2007 Hari Singh Vs. 5. I have heard learned counsel for the parties and carefully gone through the entire material placed before me. 6. Much reliance has been placed by the learned counsel for the petitioner in the case of SB Civil Writ Petition No. 5347/2007 Hari Singh Vs. State of Rajasthan and others decided on 23.2.2005, reported in WLC (Raj.) 464, wherein this Court has directed the respondents to pay all the retiral benefits to the petitioner. 7. Learned counsel for the petitioner has drawn attention of the court towards rules of the Rajasthan Pension Rules, 1996 (for short 'the Rules of 1996'). Chapter V of the Rules of 1996 prescribes about Regulations of Amounts of Pension and this Chapter is relevant to decide the present controversy, which is reproduced here-in-below: "CHAPTER-V REGULATION OF AMOUNTS OF PENSIONS A-(I) PREMATURE RETIREMENT 50. Retirement on completion of 15 years' qualification: (1) At any time after Government servant has completed fifteen years qualifying service, he may, by giving notice of less than three months in writing to the appointing authority, retire from service. (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 automatically become effective from the date of expiry of the said period. GOVERNMENT OF RAJASTHAN DECISION Guidelines for acceptance of notice : A notice of voluntary retirement given after completion of (fifteen years) qualifying service will require acceptance by the appointing authority. Such acceptance may be generally given in all cases except that the Appointing Authority shall withhold permission to 'retire a Government servant:- i. Who is under suspension; ii. in whose case the disciplinary proceedings are pending or contemplated for the imposition of major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service. iii. In whose case prosecution is contemplated or may have been launched in a court of law. 8. In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. iii. In whose case prosecution is contemplated or may have been launched in a court of law. 8. In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. Even where the notice of voluntary retirement given by the Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice. (a) A Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor; (b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months." 9. It appears from the contents of the writ petition and the letter dated 20.10.2002 (Annex.4) Written by the respondent No.2 to the petitioner that charge-sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short 'the Rules of 1958') was issued to the petitioner. This fact has not been disputed by the respondents in para 12 of the reply, which is quoted as under : "12. That the facts as mentioned in para No.12 of the writ petition is admitted to extent that a notice under rule 86(3) of Rajasthan Service Rules was issued to the petitioner, the petitioner was remain absent from his duties from 5.12.2000 to 31.1.2001, 19.10.2001 to 12.5.2002 and since 24.5.2002 till issuing the notice (Annex.4) the petitioner was remained absent from this duties." 10. The respondents have further submitted in para 15 of the reply that "The Disciplinary Enquiry is pending against the petitioner, so he is not entitled to get benefit of voluntary retirement as per rule 244(1) of the Rules, 1958." But as far Rule 244 of the Rules of 1958 are concerned the same has already been deleted in the above rules and have been substituted in the Rules of 1996 as Rule 50 to 52 but it is very strange that the Government has filed counter affidavit very casually and relied upon rule 244 of the Rules of 1958 which is not in existence." 11. So far as Rule 50 which is quoted in the foregoing para is concerned, Government of Rajasthan Decision clearly provides that permission for voluntary retirement can be with-held only when disciplinary proceedings are pending or contemplated for the imposition of a major penalty but in the present case charge-sheet under rule 17 of the Rules of 1958 was issued which is related to minor penalty. 12. I have also gone through the relevant provisions related to voluntary retirement. 13. The writ petition is allowed. The respondents are directed to treat the petitioner as voluntary reitred from 1.10.2002 and pay all pensionary and retiral benefits including dues to the petitioner with interest @ 9% p.a. within a period of 45 days from the date of receipt of certified copy of this order. There shall be no order as to costs.Petition allowed. *******