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2009 DIGILAW 1639 (PNJ)

Surinder Singh v. State Of Punjab

2009-09-16

AJAI LAMBA

body2009
Judgment Ajai Lamba, J. 1. This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India prying for issuance of a writ in the nature of certiorari quashing order Annexure P-6 dated 05.09.2008. Vide order Annexure P-6, the petitioner has been conveyed that his request for premature retirement had not been accepted. 2. It has been pleaded that the petitioner was selected and appointed as a Clerk vide order dated 04.03.1983. The petitioner has been working without break and has a clean service record. After completion of 20 years of continuous service, on account of personal reasons and circumstances, the petitioner made a request for pre-mature retirement vide communication Annexure P-4 dated 19.05.2008. The communication reads as under :- "On the subject cited above, it is humbly prayed that at present I am working as Senior Clerk in the office of Tehsildar, Rupnagar. My date of joining the Government Service is. 9.3.1983 and in this way, I have already completed more than 25 years of Government service. 2. On account of my family circumstances and due to my ill-health, I cannot perform my Government duty properly and on that account, I am requesting by serving a notice for pre-mature retirement as per rule 3 sub- rule 3 (a) of Premature Rule 1975 that I may be allowed to voluntarily from the Government service with effect from 1.8.2008 after noon." 3. Learned counsel contends that, in case, before the stipulated date in the request for pre-mature retirement, if the permission its not refused, it has to be construed as having been allowed. The impugned order Annexure P-6 has been passed on 05.09.2008 i.e. after the date given by the petitioner in the notice i.e. 31.08.2008 and, therefore, is illegal and in violation of the statutory provision. 4. Learned counsel for the respondent has drawn the attention of the Court towards Annexure R-3 i.e. the noting sheet maintained in the office. It has been pleaded on behalf of the respondents that Assistant Commissioner vide note dated 27.05.2008 had approved that the request of the petitioner be filed in view of the fact "A" and shortage of employees. Action, therefore, was taken by respondents before the date given by the petitioner in his notice i.e. 31.08.2008. Under the circumstances no illegality has been committed. 5. Action, therefore, was taken by respondents before the date given by the petitioner in his notice i.e. 31.08.2008. Under the circumstances no illegality has been committed. 5. The office note on which reliance has been placed by the respondents reads as under :- "Subjects Application No. 271/BC Dated 19.05.2008 from Tehsildar, Rupnagar. A letter under mention which is larder consideration has been received through Tehsildar; Rupnagar. The applicant Surinder Singh, Senior Assistant Tehsil Officer, Rupnagar requested that he has joined on 09/03/1983 and completed his government Service of 25 years. He has requested that his domestic problems and health is not well and he is unable to do his government duty properly. So after giving him the notice for voluntary retirement Rules 3 Sub Rules (URA,) of Punjab Civil Services (Premature Retirement) rules 1975. It is requested that he be ordered to be retired prematurely from his government Service on 31/08/2008 afternoon. The Employee had earlier also requested for voluntary retirement and he again made the request for voluntary retirement. After considering the application the employees problem proper order is requested. Sd/-. EC-1, on 23/5/2008. Establishment Assistant. Surinder Singh, Senior Assistant Tehsil Officer, Rupnagar has Given the application for premature retirement to the effect that he be voluntary retired from his. government Service from 31/08/2008 afternoon. This employee had also given an application earlier for voluntary retirement as per noting on page No. 52, on which the Honble deputy commissioner heard the employee personally after consideration for order, it is submitted. Sd/- EA on 27/05/2008 AC(G) May File in view of "A" and shortage of employees. Sd/- AC(G) on 27/05/2008." 6. I have heard the learned counsel for the parties and have considered the issue involved. 7. Before proceeding further, Rule relevant for consideration of the issue is required to be noticed. Rule 3(3)(a) of Pre-mature Retirement Rules reads as under :- Rule 3(3) (a) of Pre-mature Retirement Rules, 1975 read as under :- "Rule 3 (3) (a) :- At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less; than three months in writing to the appropriate.authority retire from service. (b) The notice of voluntary retirement given under this sub-rule shall require acceptance by the appropriate authority. (b) The notice of voluntary retirement given under this sub-rule shall require acceptance by the appropriate authority. (c) Where the appropriate authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement, shall become effective from the date of expiry of the said period." 8. As per the provisions of Rule applicable to the facts, an employee after completing 20 years of qualifying service is entitled to give notice of not less than three months in writing to the appropriate authority to retire from service. However, where the appropriate authority does not refuse to grant the permission for retirement before expiry of the period specified in the said notice, it has been provided that retirement shall becomes effective from the date of expiry of the said period. 9. In the case in hand, the petitioner made a request to the appropriate authority for pre-mature retirement vide communication/notice dated 19.5.2008 with the stipulation that it should be made effective from 31.8.2008. It is thus clear that the petitioner in accordance with the relevant Rule extracted above, gave more than three months notice. 10. If the appropriate authority was not to accept the request for premature retirement, it was required to convey to the petitioner before the period specified in the notice i.e. before 31.8.2008. 11. Stand of the respondents is that a perusal of noting sheet extracted above indicates that the authority had considered the request and had taken a decision "may file in view of "A" and shortage of employees". 12. Learned counsel for the respondent has not been able to show that the decision taken by the appropriate authority in not accepting the request of the petitioner for pre-mature retirement had been conveyed to the petitioner before 31.8.2008. The decision admittedly was conveyed vide the impugned order Annexure P-6 dated 05.09.2008. In view of the fact that the decision taken by the respondent had not been conveyed to the petitioner, the respondents cannot take advantage of the noting sheet which is intra authority and intra department communication. It would not form an order till it is duly conveyed to the petitioner. 13. Considering the facts and circumstances of the case, find that petitioner had made request for pre-mature retirement in accordance with the relevant Rule. It would not form an order till it is duly conveyed to the petitioner. 13. Considering the facts and circumstances of the case, find that petitioner had made request for pre-mature retirement in accordance with the relevant Rule. No decision on the request of the petitioner was conveyed to the petitioner within stipulated time/as is required under till provisions of the Rule. In these facts and circumstances of the case, the present case squarely falls within the domain of sub clause (c) of sub-rule (3) of rule 3 of Pre- mature Retirement Rules, 1975. Consequently, it follows that the pre-mature retirement of the petitioner becomes effective from 31.08.2008 i.e. the date specified in the notice given by the petitioner. 14. In view of the above, order Annexure P-6 dated 05.09.2008. that is subsequent to the date specified in the notice, is rendered illegal and would not have the effect of not accepting the request of the petitioner for pre- mature retirement. 15. The petition is accordingly allowed. Order Annexure P-6 is set aside. The respondents are required to consider the petitioner as having voluntarily retired in accordance with the notice served by the petitioner. Annexure P-4. There shall be no order as to costs.