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2012 DIGILAW 589 (PAT)

Prakash Chandra Lal v. State of Bihar

2012-04-09

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner, the State of Bihar and the State of Jharkhand. 2. By filing this writ petition, petitioner seeks a declaration that he voluntarily superannuated from service with effect from 1.9.2002 as per his request to voluntarily superannuate with effect from that date contained in his application dated 15.7.2002, Annexure-1. Earlier petitioner had obtained 30 days’ leave for the period between 10.08.1997-8.9.1997 for the treatment of his son under office order bearing Memo No. 1128 dated 19.7.1997, Annexure-4. For treatment, son of the petitioner was taken to Children’s Hospital at Albania in the U.S. and he continues to be there even now. Petitioner being the only male member in the family is required to attend on his ailing son at Albania Medical Centre, U.S. and as such, he could not report back for duty after expiry of the leave granted under office order dated 19.7.1997, Annexure-4 though information about the continued medical treatment of his son in the U.S. was given to the authorities under representation, Annexure-5,7, 9 and 11 which was duly forwarded to the State Government under letter Nos. 1451 dated 24.9.1997, Annexure-6, 366 dated 25.3.1998, Annexure-8, 77 dated 20.1.2001, Annexure-10. 3. The condition of petitioner’s son could not improve and application dated 15.7.2002, Annexure-1 was submitted to the Government seeking voluntary retirement with effect from 1.09.2002 as per the provisions contained in Rule 74(b) of the Bihar Service Code and Voluntary Retirement Scheme formulated by the State Government under Memo No. 6190F dated 27.04.1979. The request of the petitioner dated 15.07.2002 for voluntary retirement remained pending. The condition of his son also did not improve whereafter this writ petition was filed on 9.5.2006. During the pendency of the writ petition also the request of the petitioner for voluntary retirement has not been considered so far. The authorities of both the States of Jharkhand and Bihar have filed two separate counter affidavit on behalf of Respondent Nos. 2,4,5,7 and 8 in which the pendency of the request of the petitioner for voluntary retirement has been admitted. The authorities of both the States of Jharkhand and Bihar have filed two separate counter affidavit on behalf of Respondent Nos. 2,4,5,7 and 8 in which the pendency of the request of the petitioner for voluntary retirement has been admitted. In the counter affidavit the authorities have not disputed that petitioner was initially allowed 30 days’ leave during the period between 10.8.1997-8.9.1997 for treatment of his son whereafter information is being received from the petitioner regularly that his son is still under treatment and it is not possible for the petitioner to join duties in the State, as he is required to attend on his ailing son in the Children’s Hospital at Albania Medical Centre, U.S. 4. Learned counsel for the petitioner with reference to the provisions contained in Rule 74(b) of the Service Code and Voluntary Retirement Scheme dated 27.4.1979 submitted that in terms of the provisions of the Scheme it is the employee who has to take initiative for voluntary retirement and no sooner the date fixed for voluntary retirement is reached the Government servant is to be deemed to have voluntarily retired with effect from the date indicated in the application. In support of such submission learned counsel for the petitioner relied on the judgment of this Court in the case of Dr. Shah Azad Siddiqui Vs. The State of Bihar & Ors. reported in 2008 (4) PLJR 194 in which having considered the provisions of Rule 74(b) of the Service Code and of the Voluntary Retirement Scheme dated 27.4.1979 this Court observed as follows:– “A bare reading of Section 74(b)(i) of the Bihar Service Code makes it apparent that the option lies with the employee to initiate the process. The only right given to the Government is if the officer is under suspension to deny such option for voluntary retirement and it could also do so by express refusal during the notice period. That this was distinct from the powers of the employer under Rule 74(b)(ii) to terminate the services after three months’ previous notice or pay in lieu thereof. That the Government itself has not understood it in any other manner is apparent from the F.D. Memo No. P.C.-2-9-9/78/6190F dated 27.4.1979 when it provides that the scheme was purely voluntary and for which the Government employee had to come forward. That the Government itself has not understood it in any other manner is apparent from the F.D. Memo No. P.C.-2-9-9/78/6190F dated 27.4.1979 when it provides that the scheme was purely voluntary and for which the Government employee had to come forward. That such an offer could be withdrawn by the employee within the period of three months.” He also relied on the judgment of another Single Judge in the case of Dr. Krishna Kumar Mallick Vs. The State of Bihar & Ors., reported in 2011(3) PLJR 593 paragraph 6 wherein it has been observed that right of an employee to seek voluntary retirement is not dependent upon its acceptance or requiring any formal order from the Government. 5. Counsel for the two States have opposed the submission. According to them petitioner applied for voluntary retirement under application dated 15.07.2002 fixing the date of his voluntary retirement as 1.9.2002 but his request for voluntary retirement is not being considered as he has not submitted joining after expiry of leave and cadre allocation by the Government of India under letter dated 29.7.2004, Annexure-14 vide Serial No. 1614. They also submitted that petitioner’s request for voluntary retirement dated 15.07.2002 to superannuate with effect from 1.9.2002 is required to be approved by the appointing authority in view of Clause (7) of the Voluntary Retirement Scheme dated 27.04.1979 which is not being accepted as petitioner failed to join the State of Bihar after cadre allocation under letter dated 29.7.2004. Clause (7) of the Voluntary Retirement Scheme dated 27.04.1979 is quoted hereunder for ready reference : <span class="Hfont">^^7. Clause (7) of the Voluntary Retirement Scheme dated 27.04.1979 is quoted hereunder for ready reference : <span class="Hfont">^^7. 20 o"kks± dh vgZd lsok ds i'pkr~ ,sfPNd lsok fuo`Ùk gksus dh lwpuk esa fu;qfDr ds fy, l{ke inkfèkdkjh dh LohÑfr vko';d gSA ;fn ,slh lwpuk dh vofèk lekIr gksus ds i'pkr~ lsok fuo`fÙk dh frfFk ml frfFk ds iwoZ iM+rh gks ftl frfFk dks ljdkjh lsod vius lEcUèk esa ykxw orZeku fu;e vFkkZr~ fcgkj lsok lafgrk ds fu;e 54 (ch)] fcgkj isa'ku fu;ekoyh ds vèkhu mnkjhÑfr isa'ku ;kstuk] 1950 ds [k.M 1 dafMdk&2 ,oa fcgkj isa'ku fu;ekoyh ds fu;e 130 vFkok vU; ln`'k fu;e ds vuqlkj LosPNk ls lsok&fuo`fÙk gks tkrs rFkk ,slh Lohd`fr lkekU;r% lHkh ekeyksa esa fuEukafdr ^^d** ,oa ^^[k** dh Js.kh ds ekeys dks NksM+dj nh tk ldrhA (d) ,sls ekeys ftuesa ljdkjh lsodksa ds fo:¼ o`gr~ n.M nsus ds fopkj ls vuq'kklfud dkjZokbZ djuh gks vFkok ,slh dkjZokbZ yfEcr gks ,oa vkjksi ds lHkh igyqvksa dks xkSj djrs gq, vuq'kklfud dkjZokbZ djus okys inkfèkdkjh dh ;g /kkj.kk gks fd lEcfUèkr ekeyksa esa lsok ls c[kkZLrxh ;k lsok ls gVk;s tkus dk n.M nsuk vko';d gSA ([k) ftu ekeyksa esa ljdkjh lsod ds fo:¼ vnkyr esa vfHk;ksx visf{kr gks ;k vfHk;kstu dks izkjEHk dj fn;k gksA (x) fdUrq bl dksfV ds ekeyksa esa Hkh ;fn ,sfPNd lsok&fuo`fÙk dh lwpuk dks Lohdkj djus dk izLrko gks Js.kh (d) ,oa ([k) ds vèkhu vkus okys ljdkjh lsodksa ds ekeys esa izHkkjh ea=kh dk vuqeksnu@fofHkUu vU; ekeyksa esa foHkkxkè;{k dk vuqeksnu izkIr dj fy;k tk;sA mu ekeys esa Hkh lwpuk nsus okys ljdkjh lsod }kjk bl vk'k; dk vuqeksnu eku fy;k tk ldrk gS c'krs± fd l{ke inkfèkdkjh }kjk lwpuk dh frfFk lekIr gksus ds iwoZ dksbZ foijhr vkns'k fuxZr ugha fd;k tk,A ,sls ekeys esa vafdr frfFk ls gh lsok&fuo`fÙk dks izHkkoh ekuk tk,xkA** 6. Petitioner is in U.S. attending on his ailing son who is suffering from thelassaemia major and under treatment at Children’s Hospital, Albania Medical Centre, could not have come to India for submitting joining pursuant to cadre allocation. It is evident from the documents on record that the son of the petitioner is under treatment in U.S. continuously from 1997 and petitioner the only male member in the family is attending on him. It is evident from the documents on record that the son of the petitioner is under treatment in U.S. continuously from 1997 and petitioner the only male member in the family is attending on him. In the circumstances, it is very difficult for the petitioner to leave his son in U.S. in the care of his wife and to come to India for submitting joining pursuant to cadre allocation. The appointing authority of the petitioner in my opinion, should have considered the difficult situation in which petitioner was seeking voluntary retirement and having appreciated the same should have granted his request for voluntary retirement. It, however, appears the authorities relying on technicalities chose not to consider the request of the petitioner for voluntary retirement. Accordingly, I dispose of this writ petition directing the appointing authority of the petitioner i.e. State Government, in the Water Resources Department of the State of Bihar to consider his request for voluntary retirement contained in representation dated 15.7.2002, Annexure-1 with effect from 1.9.2002 in the light of Clause (7) of the Voluntary Retirement Scheme dated 27.4.1979 whereunder request of the Government Servant for voluntary retirement has to be generally accepted except in the cases which are covered by sub-clause (ka) and (kha) of Clause (7) of the Scheme. It is admitted that no departmental, criminal proceeding is pending against the petitioner except the show-cause notice dated 1.8.2003 issued by the State of Jharkhand asking the petitioner to show-cause as to why a proceeding under Rule 76 of the Bihar Service Code be not initiated against him for dismissing him from service for his failure to join duties after expiry of leave. In response whereto petitioner submitted reply dated 23.8.2003, whereafter nothing tangible was communicated to the petitioner till date. Even otherwise notice dated 21.8.2003 having been issued after petitioner initiated the process of voluntary retirement under request dated 15.7.2002, Annexure-1 will hardly have any bearing while considering his case for voluntary retirement as notice dated 21.8.2003 is subsequent to the request of the petitioner for voluntary retirement. Even otherwise notice dated 21.8.2003 having been issued after petitioner initiated the process of voluntary retirement under request dated 15.7.2002, Annexure-1 will hardly have any bearing while considering his case for voluntary retirement as notice dated 21.8.2003 is subsequent to the request of the petitioner for voluntary retirement. Accordingly, I direct the appointing authority of the petitioner i.e. the State Government in the Water Resources Department of the Government of Bihar to consider his request for voluntary retirement in the light of the request made in application dated 15.7.2002, Annexure-1 with effect from 1.9.2002, as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order taking into account the serious condition of his son and the fact that petitioner is required to be at the Albania Medical Centre, U.S. to attend on his ailing son. It is, however, observed that for the failure of the authorities to consider the request of the petitioner for voluntary retirement within the A.F.R. Arjun/P.K.P. two months of the receipt of this order it shall be deemed that petitioner superannuated with effect from 1.9.2002, the date from which he is seeking voluntary retirement.