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2013 DIGILAW 1347 (KAR)

Union of India v. B. S. Bopaiah

2013-11-28

N.K.PATIL, R.B.BUDIHAL

body2013
Judgment : N.K. Patil J. 1. The appellants, who were respondents in the writ petition, have assailed the correctness or otherwise of the order impugned passed by the learned Single Judge, in Writ Petition No. 1992/2009 dated 18th November 2010. 2. In the writ petition filed by respondent herein, he had sought for quashing the endorsement dated 31st December, 2005 issued by the second respondent vide Annexure E to the writ petition, as the same is illegal, unjust, arbitrary, mala fide, discriminatory and thus violative of Articles 14 of the Constitution of India. Further, he had sought for a direction, directing the respondents to accept the request made by the respondent vide his representation dated 22nd December 2005 marked at Annexure C to the writ petition and allow him to attain the age of superannuation (on VRS Basis) with effect from 31-03-2006 instead of 31-12- 2005 and accordingly to re-draw and re-fix his pensionary benefits and grant all the consequential reliefs. 3. The aforesaid writ petition has been allowed by the learned Single Judge and the endorsement at Annexure E therein was set aside and the appellants herein were directed to consider the prayer of the respondent herein for re-fixation of pay consequent to the 6th Pay Commission and to release all the benefits which the respondent will be entitled to, in law, within three months from the date of receipt of a copy of the said order. Being aggrieved by the said order passed by the learned Single Judge, the appellants have come up before this Court in appeal, seeking appropriate reliefs as stated supra. 4. Brief facts of the case in hand are that, the respondent herein was working in the third appellant - Border Security Force. Having put in more than 38 years of service, the respondent requested the third appellant to permit him to take Voluntary Retirement with effect from 31st December 2005 for the reasons mentioned in his application dated 17th September 2005. Among other things, he had mentioned in his application that on account of his wife's ill-health and as his wife had to undergo various operations due to the fact that she was suffering from cancer of the ovary, he was constrained to seek Voluntary Retirement from the aforementioned date, i.e. 31-12-2005. The request of the respondent was accepted by the third appellant on 02-12-2005. The request of the respondent was accepted by the third appellant on 02-12-2005. Thereafter wards, the respondent made another request to the third appellant to permit him to take Voluntary Retirement with effect from 31-03-2006 instead of 31-] 2-2005. The third appellant issued an endorsement to the respondent vide Annexure A to the writ petition dated 31-12-2005 to the effect that, there is no provision to extend the date of Voluntary Retirement of the respondent, since the notice/request has been accepted and issued an endorsement to that effect. Being highly aggrieved by the said endorsement issued by the third appellant, the respondent filed a writ petition in W.P. No. 1992/2009, before the learned Single Judge, seeking appropriate reliefs as stated above. 5. The said writ petition had come up for consideration before the learned Single Judge on 18th November 2010 and the learned Single Judge, in turn, after hearing the learned counsel appearing for the parties and after perusal of the entire material available on his file, with reference to the relevant Rules consisting the Voluntary Retirement and other material on record, and also following the judgment of the Hon'ble Apex Court in the case of Shambhu Murari Sinha Vs. Project and Development India Ltd., and another ( AIR 2002 SC 1341 ), opined that as on the date when the application was submitted by the respondent seeking extension of time, his Voluntary Retirement had not come into effect and therefore, following the said law laid down by the Hon'ble Apex Court and other CCS Rules of 1972 also being silent on the aspect of the time extension sought, in the absence of there being specific bar in the CCS Rules preventing a Government Servant from making an application seeking extension of time, held that the authorities could not have rejected the request of the respondent and accordingly, allowed the writ petition, setting aside the endorsement issued by the third appellant and directed the appellants to consider the request of the respondent for re-fixation of pay consequent to the 6th Pay Commission and to release all the benefits which he will be entitled to, in law within three months from the date of the said order Being aggrieved by the said order of the learned Single Judge, the appellants have presented this writ appeal, seeking appropriate reliefs as stated supra, 6. The principal submission canvassed by the learned counsel appearing for appellants, Shri. H. Dayari&nd Saraswathi, at the outset is that, there is no provision under the relevant Rules or any guidelines or circular as such issued by the competent authority to accept the extension of Voluntary retirement from 31- 03-2006 instead of 31-12-2005. To substantiate the said submission, he is quick to point out and submit that, the respondent filed an application on 17-09-2005 seeking Voluntary Retirement with effect from 31-12-2005 and the same was accepted by the third appellant on 02-12-2005. Hence, the question of seeking extension does not arise nor the appellants 1 and 2 or the appellant No.3 have got any powers to consider the request made by the respondent for extension of Voluntary Retirement with effect from 31-03-2006 does not arise, when he his request has been accepted on 02- 12-2005. This aspect of the matter has not been looked into nor considered or appreciated by the learned Single Judge, while allowing the writ petition. Further, the learned counsel for appellants drew our specific attention to the relevant rules consisting the Voluntary Retirement of the CCS Pension Rules, 1972, at internal page 8, ink page 22, of the order of the learned Single Judge and pointed out the proviso to the said Rules, wherein it is provided that, the request for withdrawal shall be made before the intended date of Retirement and in the instant case, there is no provision as such pointed out nor relied upon to show that the competent authority has got the power to extend the date of Voluntary Retirement. Further, he vehemently submitted that the reliance placed by the learned Single .Judge on the judgment of the Hon'ble Apex Court, referred above, cannot be sustained nor can the same be made applicable to the facts and circumstances of the case. Therefore, he submitted that the impugned order passed by the learned Single Judge is liable to be set aside at the threshold. 7. Therefore, he submitted that the impugned order passed by the learned Single Judge is liable to be set aside at the threshold. 7. As against this, Shri.N.S. Prasad, learned counsel for M.S. Anandaramu Associates, appearing for respondent submitted that, the order passed by the learned Single Judge is after due consideration of the relevant material available on file and also with reference to the relevant Rules consisting the Voluntary Retirement on 11.48-A or the CCS Pension Rules 1972 and specifically pointed out the proviso provided at the end of the said Rules, wherein it is stated that, "Provided that the request for withdrawal shall be made before the intended date of his retirement." In the instant case, it is not disputed vhat, the respondent has filed the application, at the first instance seeking Voluntary Retirement on 17-09-2005 requesting to give effect to Voluntary Retirement from 31-12-2005 and before giving effect to Voluntary Retirement of the respondent from 31-12-2005. the respondent has submitted one more representation dated 22-12-2005, seeking extension of time with effect from 31-03-2006 instead of 31-12-2005. Admittedly, the said application is given before the intended date of his retirement. Therefore, the third appellant is not justified in issuing the endorsement, rejecting the request of the respondent, without any valid reasons. He further submitted that it is significant to note that the respondent had sought for Voluntary Retirement only on account of serious ill-health of his wife, as she was suffering for cancer of the ovary. In view of the 6th Pay Commission effected in the interregnum period, in order to avail the benefit of the said Pay Commission, the respondent has submitted one more representation, seeking to effect his. voluntary retirement from 31-03-2006 instead of 31-12-2005 and this will in no way affect the interest of the appellants nor a burden to the financial exchequer of the Institution. voluntary retirement from 31-03-2006 instead of 31-12-2005 and this will in no way affect the interest of the appellants nor a burden to the financial exchequer of the Institution. It his further submission that, before his voluntary retirement is given effect to from 31-12-2005 as requested by him in his application dated 17-09- 2005, the respondent has given one more representation dated 22-12-2005, which means that the earlier representation dated 17-09-2005 is deemed to have been withdrawn and as per the latest representation dated 22-12-2005, the respondent is entitled to seek extension of his voluntary retirement date, which is prospective in nature and this aspect of the matter has been rightly considered and appreciated by the learned Single Judge and following the judgment of the Hon'ble Apex Court in the case of Shambhu Murari Sinha Vs. Project and Development India Ltd., and another ( AIR 2002 SC 1341 ) has held that as on the date when the application was submitted by the respondent seeking extension of time, his Voluntary Retirement had not come into effect and therefore, following the said law laid down by the Hon'ble Apex Court and other CCS Rules of 1972 also being silent on the aspect of the time extension sought, in the absence of there being specific bar in the CCS Rules preventing a Government Servant from making an application seeking extension of time, held that the authorities could not have rejected the request of the respondent. The said reasoning given is well founded and well reasoned. Therefore, interference in the same is not called for. 8. After careful consideration of the submission of the learned counsel appearing for both parties and after perusal of the order impugned passed by the learned Single Judge and other material available on record including the judgment of the Hon'ble Apex Court referred above, the point that arise for our consideration in this appeal is, Whether the appellants have made out a case for interference in the impugned order passed by the learned Single Judge? The undisputed facts of the case are, the respondent was working in the Office of the third appellant - Border Security Force and had put in more than 38 years of unstinted service in the said Institution. It is further not disputed that, there were any deficiencies in the services rendered by the respondent. His track of service was unblemished in nature. It is further not disputed that, there were any deficiencies in the services rendered by the respondent. His track of service was unblemished in nature. The very reason for seeking Voluntary Retirement by the respondent was on account of ill- health of his wife, as his wife had to undergo various operations as she was suffering from cancer of the ovary. Because of the said ill-health of the wife of respondent, he had no other option but to seek Voluntary Retirement and as he was serving in the 3SI7., his services were equally important to the Institution as well as to the family. Because of the unavoidable circumstances, he submitted his application seeking Voluntary Retirement on 17-09-2005, with a request to give effect to the voluntary retirement with effect from 31-12-2005. Further, it is also not in dispute that the third appellant has considered the request of the respondent for Voluntary Retirement and accepted the same on 02 12-2005 to give voluntary Retirement from 31-12-2005. But, before giving effect to the said order of permitting the respondent to take voluntary Retirement from 31-12-2005, or before the respondent was actually relieved of his services from the third appellant, he has submitted one more application dated 22nd December 2005, seeking Voluntary Retirement with effect from 31-03-2006 instead of 31-12- 2005. 9. The specific submission of the learned counsel for appellants before us is that the respondent is entitled to withdraw his earlier application and give a fresh application, but there is no provision for extension of the date of Voluntas Retirement from 31-12-2005 as 31-03-2006 and the same cannot be accepted. The said submission of the learned counsel cannot be sustained nor it has got any substance or force for the reason that, it is not disputed that, before giving effect to the Voluntary Retirement of the respondent from 31-12- 2005; he has submitted one more representation dated 22-12-2005, seeking extension of Voluntary Retirement and to retire him from 31-03-2006 instead of 31-12- 2005. This implies that his earlier application dated 17- 09-2005 is superseded by the latest representation dated 22-12-2005 and is deemed to have been withdrawn the earlier application and the request sought for by respondent is prospective in nature. This aspect of the matter has been considered as early as in the year 1978 by the Hon'ble Apex Court, in the case of Union of India, etc. Vs. This aspect of the matter has been considered as early as in the year 1978 by the Hon'ble Apex Court, in the case of Union of India, etc. Vs. Gopal Chandra. Misra and others, etc., reported in 1978 SC 694, wherein the Constitution Bench has held that, if a person, by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure belore such date and the person can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal. 10. Therefore, as stated above, in the present case, before the earlier Voluntary retirement date, i.e. 31-12-2005 could be given effect to, the respondent has submitted one more application seeking extension of his voluntary retirement from 31-03-2006 instead of 31-12- 2006. Further, it is significant to note, as per the CCS 1972 Rules, there is also no specific bar for the respondent from seeking extension of time to give effect to the Voluntary Retirement. This aspect of the matter has been rightly considered by the learned Single Judge and recorded a specific finding of fact the said reasoning given is well considered, well founded and well reasoned. Hence, we do not find any error of law or material irregularity or perversity in the order impugned passed by the learned Single Judge nor the appellants have made out a good case to warrant interference. 11. For the foregoing reasons, the appeal filed by appellant is dismissed as devoid of merits.