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Madhya Pradesh High Court · body

2009 DIGILAW 372 (MP)

RUKSHANA BEGUM SIDDIQUE v. STATE OF M P

2009-03-24

K.S.JHA

body2009
Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by communications dated 2. 6. 2006 and 3. 6. 2006 whereby she has been informed that her application seeking voluntary retirement with effect from 30. 4. 2006 has been accepted and consequently she has been voluntarily retired. ( 2. ) THE case of the petitioner, before this Court, is that the petitioner, who at the relevant time was working as an Assistant Teacher and was posted at Govt. Boys Middle School (Urdu), Gohalpur, submitted an application on 29. 3. 2006 seeking voluntary retirement with effect from 30. 4. 2006. Thereafter the petitioner was directed by the; authorities to submit the application in the prescribed Statutory form 28 under the M. P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Service Rules) and, accordingly, the petitioner by Annexure P-2 submitted her application for voluntary retirement in the prescribed form under the Service Rules stating therein that she desires to retire from Government Service with effect from 30. 4. 2006 under Rule 42 (l) (a) of the Service Rules. It is stated that thereafter on 16. 5. 2006 an order was issued by the Block Resource Coordinator, Jabalpur sending the petitioner for training and this led to a change of mind on the part of the petitioner prompting her to file an application on 18. 5. 2006 seeking withdrawal of her voluntary retirement. It is stated that respondent no. 2 totally ignored the application seeking withdrawal of voluntary retirement of the petitioner and on 27. 5. 2006 and 1. 6. 2006 sought submission of the proposal for voluntary retirement of the petitioner from the Principal of the petitioners school and thereafter communicated the impugned order dated 3. 6. 2006 to the petitioner to the effect that her voluntary retirement had been accepted with effect from 30. 4. 2006 and that she should consider herself to have been deemed to be relieved from service with effect from that date. ( 3. ) IT is submitted by the learned counsel for the petitioner that once the authority sends the petitioner for training, subsequent to the lapse of the period of notice mentioned in her notice for voluntary retirement, by order dated 16. 5. 2006, the relationship of employer and employee, between the petitioner and the respondent, continued and in such circumstances the respondent no. 5. 2006, the relationship of employer and employee, between the petitioner and the respondent, continued and in such circumstances the respondent no. 2 could not have accepted the petitioners application for voluntary retirement on 30. 4. 2006 specifically in view of the fact that the petitioner had withdrawn her application for voluntary retirement by communication dated 18. 5. 2006. It is further submitted that as the petitioner even subsequent to 30. 4. 2006 attended her school and her pay slips were also prepared by the concerned school, the relationship of employer and employee continued and as such the respondent authority could not have voluntarily retired the petitioner from service w. e. f. 30. 4. 2006. ( 4. ) THE respondents, per contra, submits that the petitioner submitted her application for voluntary retirement in accordance with Rule 42 (1) (a) of the Service rules, in the statutory Form 28 prescribed therein wherein she gave notice to the effect that she would stand voluntarily retired from Government Service w. e. f. 30. 4. 2006. In such circumstances, the voluntary retirement of the petitioner conies into effect automatically on the lapse of the period mentioned in the notice for voluntary retirement in the statutory form in accordance with Rule 42 of the Service rules and communication of acceptance or rejection in such cases has no meaning. It is further stated that the respondent no. 2 authority by communication dated 1/ 2. 6. 2006 clearly informed the Principal of the concerned school that the petitioners voluntary retirement had come into effect w. e. f. 30. 4. 2006 and in such circumstances it could not have been withdrawn subsequently and that in case the principal had permitted the petitioner to perform her duties even subsequent to 30. 4. 2006 without obtaining any permission from the District Education Officer, the work taken from the petitioner was at the risk and cost of the Principal himself. In such circumstances, it is submitted that the contention of the petitioner deserves to be rejected and the petition deserves to be dismissed as no fault can be found with the communication dated 3. 6. 2006. ( 5. ) I have heard the learned counsel for the parties at length. The relevant rules governing voluntary retirement, i. e. Rule 42 of the Service Rules reads as under:- "42. 6. 2006. ( 5. ) I have heard the learned counsel for the parties at length. The relevant rules governing voluntary retirement, i. e. Rule 42 of the Service Rules reads as under:- "42. Retirement on completion of 15/20 years qualifying service: (1) (a) Government servant may retire at any time after completing 15 years qualifying service, by giving a notice in form 28 to the appointing authority at least [one month] before the date on which he wishes to retire or on payment by him of pay and allowances for the period of [one month] or for the period by which the notice actually given by him falls short of [one month]. Provided that. . . . . . . . . . . xxx xxx xxx (2) A Government servant who has elected to retire under clause (a) of sub-rule (1) and has given the necessary intimation to that effect to the appointing authority, shall be 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; provided that the request for withdrawal shall be prior to the intended date of his retirement. (3) Where the notice of retirement has been served by appointing authority on the Government servant, it may be withdrawn, if so desired for adequate reasons, provided that the Government servant concerned is agreeable. " ( 6. ) THE statutory Form 28 in which the. application for voluntary retirement is to be submitted is prescribed under the Service Rules itself and is in the following terms:- FORM 28 [see rule 42 (i) (a)] to,. . . . . . . . . . . . . . . . . . . Whereas, I have completed [15/20 years] qualifying service and now desire to retire from Government service under clause (a) of sub-rule (1) of rule 42 of the M. P. Civil Services (Pension) Rules, 1976, with effect from. . . . . . . . . . . . . . a notice whereof is hereby given accordingly. OR whereas, I have completed [15/20 years] qualifying service and now desire to retire from Government service under clause (a) of sub-rule (i) of rule 42 of the M. P. Civil Services (Pension) Rules, 1976, with effect from. . . . . . . . . . . . . . . . a notice whereof is hereby given accordingly. OR whereas, I have completed [15/20 years] qualifying service and now desire to retire from Government service under clause (a) of sub-rule (i) of rule 42 of the M. P. Civil Services (Pension) Rules, 1976, with effect from. . . . . . . . . . . . . . a notice whereof is hereby given accordingly; and whereas the period of this notice falls short of. . . . . . . . . . days, the pay and allowances for the days aforesaid have been credited under challan No. . . . . . . . . . dated. . . . . . . . . . . . . A copy whereof is enclosed herewith. OR whereas, I have completed [15/20 years] qualifying service and now desire to retire from Government service under clause (a) of sub-rule (i) of rule 42 of the M. P. Civil Services (Pension) Rules, 1976, forthwith, that is to say from. . . . . . . . . . . . . a notice whereof is hereby given accordingly; the pay and allowances for [one month] have been credited under challan no. . . . . . . . . . . . dated. . . . . . . . . . . . . . a copy whereof is enclosed; in lieu of [one month] notice as required by the said clause. Dated. . . . . . . . . . . . . . . Signature and designation of the Government servant. ( 7. ) A conjoint reading of the aforesaid makes it clear that an employee has a right to voluntarily retire from service from a particular date and for that purpose a notice period is prescribed in the Service Rules. It is also clear that an application for voluntary retirement once submitted by the petitioner cannot be withdrawn subsequent to the lapse of the notice period and that if the employee seeks to withdraw the application for voluntary retirement he/she must necessarily do so within the notice period after seeking permission from the Government. ( 8. ) IN the instant case the petitioner submitted the application for voluntary retirement w. e. f. 30. 4. ( 8. ) IN the instant case the petitioner submitted the application for voluntary retirement w. e. f. 30. 4. 2006 and as per the provisions of Rule 42 of the Service rules and the form prescribed thereunder, her voluntary retirement became effective w. e. f. 30. 4. 2006. In such circumstances, the subsequent attempt of the petitioner to withdraw her voluntary retirement by filing an application on 18. 5. 2006 without seeking permission of the Government and applying for the same within the notice period does not in any manner effect or protract the coming into effect of the voluntary retirement of the petitioner w. e. f. 30. 4. 2006. It is also clear from annexure P-5 that the competent authority had informed the Principal that the petitioners voluntary retirement had already come into effect from 30. 4. 2006 and that any work taken by the Principal from the petitioner subsequent to that date without taking any permission from the competent authority respondent no. 2 would be at the risk and cost of the Principal himself who was not competent to either accept the application for voluntary retirement or extend the period of voluntary retirement and in such circumstances I am of the considered opinion that as the petitioner stood voluntarily retired w. e. f. 30. 4. 2006 no relationship of employer- employee continued or existed between the petitioner and the respondent subsequent thereto and if the Principal on his own had permitted the petitioner to work in the school, such act on his part would not confer any right on the petitioner to claim that the employer had continued the relationship of employer and employee or that the application for voluntary retirement had not been accepted or had not become effective from 30. 4. 2006. It is also apparent that the order dated 16. 5. 2006, by which the petitioner was sought to be sent on training, was also issued without the approval, acceptance or knowledge of the competent authority by the District -Resource Co-ordinator who had no power or authority to take any action in respect of the petitioner nor did he have any knowledge of the fact that the petitioner had already submitted an application for voluntary retirement. ( 9. ( 9. ) A Division Bench of this Court, in the case of Narayan Prasad vs. Honble district and Sessions Judge, Ratlam and others, 1999 (1) JLJ 169 , while dealing with the provisions of Rule 42 (1) (a) and Form 28 of the Service Rules has held, that a notice for voluntary retirement does not require any acceptance by the appointing authority and that the notice comes into effect automatically after sxpiry of the period of three months and the relationship of master and servant comes to an end on completion of the notice period by the unilateral act of the government servant, in the following terms in paras 8 to 11 :- "8. Rule 42 (l) (a) of the M. P. Civil Services Pension Rules, 1976 provides that a Government servant may retire at any time after completing 20 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 20 years of qualifying service. His application dated 23. 5. 1995 (Annexure A 12) specifically mentioned that he should be given voluntary retirement from 23. 8. 1995. Thus, this application fulfilled the requirements of Rule 52 (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 20 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 master and servant comes 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 bring an end to the "binding knot". 10. The decision of this Court in Indra Prakash v. State of M. P. ( 1985 JLJ 504 - 1985 MPLJ 229 ) has taken the same view. Such a notice does not require any acceptance by the appointing authority. The volition act of the Government servant bring an end to the "binding knot". 10. The decision of this Court in Indra Prakash v. State of M. P. ( 1985 JLJ 504 - 1985 MPLJ 229 ) has 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 provides 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 be precluded from withdrawing his selection 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 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 Guptas case (supra) while dealing with similar rule in Central Civil Services (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. " ( 10. ) THE Division Bench has approved the Single Bench judgment of this Court in the case of Indra Prakash vs. State of M. P. , 1985 MPLJ 229 , and both these judgments have subsequently been followed in W. P No. 4382/2006 (S) decided on 29. 1. 2007 by the Indore Bench of this Court. I am respectfully bound by the interpretations of the Rules given by the Division Bench of this Court in the case of Narayan Prasad (supra) which squarely applies to the case of the petitioner. ( 11. 1. 2007 by the Indore Bench of this Court. I am respectfully bound by the interpretations of the Rules given by the Division Bench of this Court in the case of Narayan Prasad (supra) which squarely applies to the case of the petitioner. ( 11. ) THOUGH the petitioner has relied upon the judgments of the Supreme Court in the cases of Balram Gupta v. Union of India and another, AIR 1987 SC 2354 , and Shambhu Murari Sinha v. Project and Development India Ltd. and another, AIR 2000 SC 2473 / AIR 2002 SC 1341 , I am of the considered opinion that in view of the interpretations to Rule 42 of the M. P. Service Rules, given by the Division Bench of this Court by which I am bound, the judgments relied upon by the petitioner do not render any assistance to her as Rule 42 of the M. P. Service Rules was not the subject matter in the aforesaid decisions of the Supreme Court and as the rule position in the M. P Service Rules is quite different. ( 12. ) IN such circumstances, I do not find any merit in the petition nor do I find any infirmity in the impugned order dated 1/2. 6. 2006 or the communication dated 3. 6. 2006 warranting interference by this Court in the present petition. ( 13. ) CONSEQUENTLY, the petition, filed by the petitioner, being merit-less is accordingly dismissed. In the peculiar facts and circumstances of the case there shall be no order as to the costs. Petition dismissed.