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Madhya Pradesh High Court · body

2011 DIGILAW 856 (MP)

Upendra Arvindekar v. State of M. P.

2011-08-01

K.K.TRIVEDI

body2011
JUDGMENT : This writ petition under Article 226 of the Constitution of India has been filed by the petitioner calling in question the order dated 29-7-2002 passed by the District and Sessions Judge, Neemuch whereby the prayer of the petitioner for withdrawal of his application/notice for voluntary retirement has been rejected and the order passed by the Registrar General, High Court of Madhya Pradesh on 13-9-2002, rejecting the appeal of the petitioner against the aforesaid order. 2. It is mainly contended by the learned counsel for the petitioner that he was working in the establishment of District and Sessions Judge, Neemuch and was promoted upto the post of Upper Division Clerk on 3-6-1997. It is contended by the petitioner that looking to his family circumstances, he has submitted an application for voluntary retirement on 28-3-2002. It was categorically stated by the petitioner that the voluntary retirement be granted to him w.e.f. 31-7-2002. The application filed by the petitioner is marked as Annexure P/1 filed along with the writ petition. It is contended that without even waiting for expiry of the notice period of three months, the District and Sessions Judge, Neemuch in hasty manner has accepted this application for voluntary retirement and passed the order on 11-4-2002. Copy of the order on application is marked as Annexure P/2. It is contended by the petitioner that he had made the application for granting him permission to withdraw his notice/application for voluntary retirement on 24-5-2002 i.e. much much before 31-7-2002 the date from which his voluntary retirement was to be given effect to, but such prayer of the petitioner was not considered properly and vide order dated 29-7-2002, it was communicated that the application submitted by the petitioner received on 27-5-2002 was rejected. The appeal was preferred by the petitioner against the said order before the Registrar General of this Court, but the same has also been dismissed vide order dated 1-7-2003. Resultantly, this writ petition is required to be filed. 3. The main contention of the petitioner is that Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules) specifically contemplates a condition that the notice of retirement is required to be given by any employee. Such notice is to be considered by the appropriate competent authority and necessary orders are required to be passed. Such notice is to be considered by the appropriate competent authority and necessary orders are required to be passed. However, before effective date of such notice, the same can be withdrawn. It is vehemently contended by the learned counsel for the petitioner that since earlier to the effective date the notice of voluntary retirement was withdrawn, in view of the law laid down by the Apex Court in the case of J. N. Shrivastava vs. Union of India and another, (1998) 9 SCC 559 , the petitioner was entitled to be permitted to withdraw the notice of voluntary retirement and even if order was passed accepting such notice of voluntary retirement he was to be allowed to continue on the post till he attain the age of superannuation. It is contended by the learned counsel for the petitioner that the law laid down by the Apex Court specifically provides that before the effective date of notice of voluntary retirement was reached, the employee concerned had a right to withdraw his voluntary retirement proposal, even if it was accepted by the competent authority before the effective date. Thus, in view of this, it is contended that the order passed by the authorities are liable to be quashed and the petitioner is entitled to continue on the post. 4. Per contra, learned Senior Counsel for the respondents No. 2 and 3 contends that the provisions of the Rule 42 of Rules are to be examined as a whole, to enable whether the person whose notice of voluntary retirement is accepted, is authorize to withdraw his notice of voluntary retirement before the effective date of retirement indicated in the notice of retirement. It is categorically contended that sub-rule (2) of Rule 42 of Rules specifically provides that the government servant who has elected to retire under Clause (a) of sub-rule (1) of Rule 42 of Rules and has given necessary intimation to this effect to the appointing authority shall be precluded from withdrawing such notice of voluntary retirement except with the specific approval of such authority on consideration of the circumstances of the case and grant of sanction to withdraw the notice given by him. Proviso is made that request for withdrawal shall be prior to the intended date of his retirement. Proviso is made that request for withdrawal shall be prior to the intended date of his retirement. Thus, it is contended that once, the notice was given for voluntary retirement on the ground mentioned in the notice Annexure P/1, which was already accepted, intimation of the same was sent to the petitioner, no option was left with the petitioner to withdraw the said notice by making subsequent application. 5. It is contended by the learned Senior Counsel for the respondents that the reasons assigned in the application for withdrawal of his notice of voluntary retirement are not in consonance to the reasons assigned in his notice for voluntary retirement. The reasons for withdrawal mentioned in the notice indicates that since a new district Neemuch was established as judicial district, there were opportunities of promotions for the person like the petitioner, therefore, he sought to withdraw notice of voluntary retirement whereas the notice of voluntary retirement was given assigning the reasons that in terms of the orders issued by the State on 28-2-2002, published in Gazette on 8-3-2002 the petitioner is willing to give notice of voluntary retirement w.e.f. 31-7-2002. Thus, it is contended that since reasons assigned for withdrawal of the notice of voluntary retirement was not satisfactory and the same was not accepted, the application was rightly rejected. Appeal of the petitioner was rightly decided. 6. Heard the counsel of the parties at length and perused the documents on record. 7. Thus, it is contended that since reasons assigned for withdrawal of the notice of voluntary retirement was not satisfactory and the same was not accepted, the application was rightly rejected. Appeal of the petitioner was rightly decided. 6. Heard the counsel of the parties at length and perused the documents on record. 7. For the purpose of deciding the controversy involved in the present case, it will be appropriate to reproduce the entire provision of Rule 42 of the Rules, as under: [42 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 this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following Department, until they have not completed 20 years qualifying service :- (a) Public Health and Family Welfare Department (Medical, Paramedical and Technical Staff); (b) Medical Education Department (Teaching Staff, Paramedical and Technical Staff); (c) Technical Education and Man Power Planning Department (Teaching Staff); (d) Higher Education Department (Teaching staff); (e) School Education Department (Teaching staff); (f) Tribal Welfare Department (Teaching staff); (g) Home (Police) Department (Non-ministerial staff); Provided further that such Government servant shall not be allowed to retire from service without prior permission in writing of the appointment authority under the following circumstances :- (i) Where the government servant is under suspension; (ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government servant: Provided also that if the appointing authority has not taken the decision under clause (ii) of the second proviso, within six months from the date of notice given by the Government servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of six months. (b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him three notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months, as the case may be. NOTE-1 - Before a Government servant service notice of retirement under clause (a) above, he should satisfy himself by means of a reference to the appointing authority that he has in fact, completed 15 or 20 years qualifying service, as the case may be, for pension. Similarly, the appointing authority, while giving notice of retirement to a Government servant under clause (b), above, should also satisfy itself, that the Government servant has, in fact completed 20 years qualifying service or he attains the age of 50 years. NOTE-2 - The period of notice of (one month or three months) or the notice period which is short of (one month or three months) as the case may be, shall be reckoned from the date on which it is signed and put in communication under registered post. Where the notice is served personally, the period shall be reckoned from the date of receipt thereof. NOTE-3 - The Government servant, on submission of an application shall be granted such leave during the period of notice to which he is entitled according to rules : Provided that no leave shall be granted beyond the expiry of the period of notice. NOTE-4 - The payment of pension for the period for which pay and allowances have been paid to the Government servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules. NOTE-4 - The payment of pension for the period for which pay and allowances have been paid to the Government servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules. (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. 8. A perusal of sub-rule (2) of Rule 42 will make it abundantly clear that there is a statutory provision prescribed in the rules itself that once the application is made for voluntary retirement or notice of voluntary retirement is given under sub-rule (1) of Rule 42 of the Rules, the employee concerned is precluded and prohibited to withdraw the said application/notice for voluntary retirement. It can be ordered only on considering circumstances in which application/notice of voluntary retirement is given and in which circumstances the same is being withdrawn and the entire discretion is with the employer either to grant or to reject application for permission to withdraw the application/notice for voluntary retirement of concerned employee. No choice is left with the employee concerned. 9. Drawing attention of this Court to the law laid down by the Apex Court in the case of Bank of India and others vs. O. P. Swamakar and others, (2003) 2 SCC 721 , it is contended by the learned Senior Counsel for the respondents that the notice of voluntary retirement once accepted culminated in contract and, therefore, there remains nothing to be subsidized for the same. As per the law laid down by the Apex Court, right was there to withdraw such notice/application for voluntary retirement before its acceptance and even when there was statutory bar the person like the petitioner would not be precluded to exercise such option to withdraw the notice/application of voluntary retirement before its acceptance. As per the law laid down by the Apex Court, right was there to withdraw such notice/application for voluntary retirement before its acceptance and even when there was statutory bar the person like the petitioner would not be precluded to exercise such option to withdraw the notice/application of voluntary retirement before its acceptance. In the light of law laid down by the Apex Court there remains nothing to be done except to retire the government servant from service as per his own wishes. Further fortifying his contention learned Senior Counsel for the respondents has put reliance heavily on the decision of the Apex Court in the case of New India Assurance Company Limited vs. Raghuvir Singh Narang and another, 2010(4) MPLJ (SC) 1 = (2010) 5 SCC 335 , and it is stated that the Apex Court has considered that a scheme made for voluntary retirement under the statutory provisions is statutory scheme and if condition is, prescribed in the said scheme, the provision of scheme would prevail over the general principles of contract and the provisions of the Contract Act. In view of the statutory provisions, it has been categorically held that the scheme if prescribes prohibition that the option to opt for voluntary retirement once exercised the employee concerned is prohibited under the scheme itself to withdraw the same therefore, it is said that there was no option but to retire voluntarily the employee, who has opted for such voluntary retirement under the scheme while deciding the issue the Apex Court has held thus :- "The effect of the decision in Swarnakar can be summarized thus : (i) If a contractual scheme provides that the voluntary retirement by exercise of option by the employee will come into effect only on its acceptance by the employer, it will not create any enforceable right in the employee to claim SV retirement. Any term in such a scheme that the employee shall not withdrew the option once exercised, will be an agreement without consideration and therefore, invalid. Consequently, the employee can withdrew the offer (that is option exercised) before its acceptance. Any term in such a scheme that the employee shall not withdrew the option once exercised, will be an agreement without consideration and therefore, invalid. Consequently, the employee can withdrew the offer (that is option exercised) before its acceptance. But if the contractual scheme gives the option to an employee to voluntarily retire in terms of the scheme and if there is no condition that it will be effective only on acceptance by the employer, the scheme gives an enforceable right to the employee to retire, by exercising his option. In such a situation a provision in the contractual scheme that the employee will not be entitled to withdraw the option once made, will be valid and binding and consequently, an employee will not be entitled to withdraw from the option exercised. (ii) Where the scheme is statutory in character, its terms will prevail over the general principles of contract and the provision of the Contract Act. Further, there will be no question of any "consideration" for the condition in the scheme that the employee will not withdraw from the option exercised. Subject to any challenge to the validity of the scheme itself, the terms of the statutory scheme will be binding on the employee concerned, and once the option is exercised by an employee to voluntarily retire in terms of the retirement package contained in the scheme, the employee will not be entitled to withdraw from the exercise of the option, if there is a bar against such withdrawal. 10. In para 22 of the judgment the Apex Court has summarized that if contractual scheme gives option to employee to voluntarily retire in terms of the scheme and if there is no condition that it will be effective only on acceptance by the employer, the scheme gives an enforceable right to employee to retire, by exercising his option. In such situation the provision in contractual scheme that the employee will not be entitled to withdraw the option once made will be valid and binding and consequential, employee will not be entitled to withdraw from the option exercised. 11. In such situation the provision in contractual scheme that the employee will not be entitled to withdraw the option once made will be valid and binding and consequential, employee will not be entitled to withdraw from the option exercised. 11. Here in the case in hand sub-rule 1(a) of Rule 42 of the Rules contemplates that the government servant may retire at any time after completing 15 years of qualifying service by giving notice in Form 28 to the Appointing Authority at least one month before the date on which he wishes to retire or by paying allowance for the period of one month for the period for which notice actually given by him falls short of one month. The proviso to the aforesaid rule prescribes that Government servant shall not be allowed to retire from the service without prior permission in writing of the Appointing Authority under the following circumstances :- (i) Where the Government servant is under suspension (ii) Where it is under consideration of the Appointing Authority to institute disciplinary action against the government servant. 12. Thus, from the reading of the Rule aforesaid, it is clear that condition precedent for grant of permission to retire voluntarily is applicable in only two circumstances referred to hereinabove. Once notice is given by the petitioner for voluntary retirement, in the considered opinion of this Court there was no option available to the State except to accept notice of voluntary retirement of the petitioner because he was not within the two categories under which the permission to voluntary retirement could have been refused to the petitioner. That being so, the law laid down by the Apex Court in the case of New India Assurance Company Limited (supra) is squarely applicable and the petitioner was precluded to withdraw his application/notice for voluntary retirement, once it was accepted by the competent authority. 13. The law laid down in the case of J. N. Shrivastava (supra) would not be attracted in view of the latest pronouncement of the Apex Court and in view of the specific provisions prescribed in sub-rule (2) of Rule 42 of the Rules. 13. The law laid down in the case of J. N. Shrivastava (supra) would not be attracted in view of the latest pronouncement of the Apex Court and in view of the specific provisions prescribed in sub-rule (2) of Rule 42 of the Rules. As has been contended by the learned Senior Counsel for the respondents No. 2 and 3 that after due consideration, the application of the petitioner was rejected by the competent authority, since the notice of voluntary retirement was already accepted, there was nothing wrong committed by the respondents in passing the impugned order. 14. In view of the aforesaid discussion there is no substance in the writ petition and the same deserves to be and is hereby dismissed. However there will be no order as to costs. Petition dismissed.