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2016 DIGILAW 194 (GAU)

J. LALCHHANHIMA v. STATE OF MIZORAM

2016-03-15

AJIT SINGH, MICHAEL ZOTHANKHUMA

body2016
ORDER : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mr. B. Lalthlamuana, learned counsel appearing for the appellant. Also heard Mrs. Linda L. Fambawl, learned Govt. Advocate appearing for the respondents. 2. This appeal has been filed by the appellant/writ petitioner against the Judgment & Order dated 31.03.2015 passed in W.P(C) No. 43/2014 wherein, the petitioner has challenged his release on voluntary retirement w.e.f. 1/11/2013 vide letter dated 1.11.2013 and letter dated 22.04.2014 regretting the respondents' inability to approve the petitioner's request for withdrawal of his application for voluntary retirement W.P(C) no. 43/2014 had been dismissed. 3. The petitioner's case in brief is that the petitioner was promoted from the post of Section Assistant to the post of Junior Engineer vide office order 29.10.2013 issued by the Engineer-in-Chief, PWD, Govt. of Mizoram. The petitioner thereafter, submitted an application dated 30.10.2013 to the Engineer-in-Chief, PWD requesting that his application for voluntary retirement from service may be approved at an early date by relaxing the required period of 3 (three) months of notice required as per the Rules, which in this case is Rule 48A of the CCS Pension Rules. 4. The Engineer-in-Chief, PWD allowed the petitioner's application to go on voluntary retirement w.e.f 1/11.2013 vide office order dated 1.11.2013 under Rule 48 A of the CCS Pension Rules, 1972 before the expiry of the period of notice of 3 (three) months. The petitioner's counsel submits that thereafter, the petitioner submitted an application dated 30.12.2013 to the Engineer-in-Chief, PWD requesting to allow him to withdraw his application for voluntary retirement. The petitioner in his letter dated 30.12.2013 stated that he had been compelled to submit an application for voluntary retirement as his family was in urgent need of a large sum of money for meeting various unforeseen expenditure, which he thought would be available from the pensionary benefit. However, as he subsequently did not need the funds required as the same had already been met from other sources, he should be allowed to withdraw his application for voluntary retirement. 5. The petitioner's counsel also submits that as the appointing authority in respect of Group-B Officers (Non-Gazetted) is the Secretary to the Govt. of Mizoram, PWD Department, as he is cadre controlling authority vide notification dated 27.05.2013, the petitioner's application for withdrawal of his voluntary retirement was referred to the Principal Secretary to the Govt. 5. The petitioner's counsel also submits that as the appointing authority in respect of Group-B Officers (Non-Gazetted) is the Secretary to the Govt. of Mizoram, PWD Department, as he is cadre controlling authority vide notification dated 27.05.2013, the petitioner's application for withdrawal of his voluntary retirement was referred to the Principal Secretary to the Govt. of Mizoram, PWD. 6. The petitioner's counsel submits that the petitioner's application for withdrawal of his voluntary retirement application was rejected by the Department of Personnel & Administrative Reforms (GSW) and the said decision was conveyed by the Deputy Secretary to the Govt. of Mizoram, PWD to the Engineer-in-Chief, PWD vide letter dated 24.04.2013. The contents of the letter dated 24.04.2013 issued by the Deputy Secretary, PWD was served upon the petitioner vide letter dated 30.04.2013. 7. The petitioner's counsel submits that the petitioner's application for voluntary retirement was given expo facto approval vide letter dated 25.02.2014 issued by the Joint Secretary to the Govt. of Mizoram, PWD. 8. The petitioner's counsel submits that as the Cadre controlling authority and the appointing authority in respect of Group-B Officers (Non-Gazetted), which includes the petitioner, is the Secretary, the Engineer-in-Chief did not have the power to the accept the petitioner's application for voluntary retirement. The petitioner's counsel thus submits that the Order dated 1.11.2013 issued by the Engineer-in-Chief, PWD, which accepted the petitioner's application for voluntary retirement and the rejection of his application for withdrawal of his voluntary retirement should be set aside. 9. Mrs. Linda L. Fambawl, learned Govt. Advocate submits that the petitioner, after having his application for voluntary retirement accepted, contested the State Legislative Assembly Election, 2013 from Chalfilh Constituency. The petitioner submitted his nomination paper for General Election to the Mizoram Legislative Assembly from Chalfilh Constituency on 05.11.2013 and as per the results declared on 10.12.2013, the petitioner was not elected from the said Assembly Constituency. The petitioner having lost the election has submitted an application for withdrawal of his voluntary retirement using a false excuse of financial constraint as being the reason why he had initially applied for voluntary pension. 10. The Government Advocate submits that the Engineer-in-Chief, PWD is the appointing authority of Group B Officers (Non-Gazetted) and that the petitioner was also appointed by the Engineer-in-Chief as Junior Engineer on 28.10.2013. 10. The Government Advocate submits that the Engineer-in-Chief, PWD is the appointing authority of Group B Officers (Non-Gazetted) and that the petitioner was also appointed by the Engineer-in-Chief as Junior Engineer on 28.10.2013. The petitioner's application for voluntary retirement was addressed to the Engineer-in-Chief, PWD 3 (three) days later and the same was accepted on 1.11.2013. The Government Advocate submits that a Government servant cannot participate in a General Assembly Election as it amounts to grave misconduct as per Rule 5 of CCS (Conduct) Rule, 1964. The Government Advocate submits that the petitioner has no right to ask for withdrawal of his voluntary retirement application in view of the fact that the petitioner has taken part in the General Assembly Election which goes to show that he accepted the fact that he was released from service on voluntary retirement. 11. We have heard the learned counsels for the parties. 12. The petitioner having taken part in the General Assembly Election after being released on voluntary retirement has acted upon the respondents' acceptance of his voluntary retirement application. It is very clear from the above that the action of the petitioner in seeking voluntary retirement was only to take part in the General Assembly Election, which he could not have done so if he was a Government servant. Rule 5 (1) of CCS (Conduct) Rules, 1964 states that 'No Government Servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, assist in any other manner, any political movement or activity' and Rule 5(4) states that no Government servant shall canvass or otherwise interfere with, or use his influence in connection with or take part in an election to any Legislature or Local Authority. Therefore, contesting State Assembly Election by the petitioner as a Government employee would have clearly been a "misconduct" and thus this constitutes good and sufficient reason for not approving his application for withdrawal of his voluntary retirement. 13. Therefore, contesting State Assembly Election by the petitioner as a Government employee would have clearly been a "misconduct" and thus this constitutes good and sufficient reason for not approving his application for withdrawal of his voluntary retirement. 13. Article 191 (1) (a) of the Constitution of India also disqualifies a person from being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. 14. It is settled law that an employee can withdraw his application for voluntary retirement before the effective date. However, in the present case, the petitioner did not withdraw his application prior to the effective date, as can be seen from his application and the acceptance of his application for voluntary retirement. In fact, the petitioner had not only accepted his voluntary retirement but acted upon the acceptance of his voluntary retirement by taking part in the General Assembly Election, which he would not have been allowed to do so if he was still in Government service. The petitioner by acting upon his voluntary retirement has accepted the fact of his voluntary retirement and in our considered opinion, the petitioner could not have resiled there from. We also find that there is a great variance in the reason for the petitioner applying for voluntary retirement as reflected in his application for withdrawal of voluntary retirement and his action in taking part in the elections, which implies that he has not acted in good faith. The petitioner cannot be allowed to have his cake and eat it too, meaning thereby that one cannot or should not try to have two incompatible things. 15. Accordingly, we do not find any infirmity with the decision of the State respondents in not accepting the petitioner's application for withdrawal of his voluntary retirement from service w.e.f 1.11.2013. As we find that this is not a fit case to exercise our discretion for invoking the writ jurisdiction of this Court, we do not find any ground to allow the writ appeal. Accordingly, the writ appeal is dismissed.