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2019 DIGILAW 365 (GAU)

STATE OF ARUNACHAL PRADESH v. TAI NIKIO

2019-03-20

A.K.GOSWAMI

body2019
JUDGMENT : A.S. BOPANNA, J. 1. Heard Mr. S. Jain, learned Additional Solicitor General, appearing for the appellants. Also heard Mr. I. Chowdhury, learned senior counsel, appearing for the sole respondent. 2. The appellants/State are before this Court assailing the order dated 21.01.2019 passed by the learned Single Judge in WP(C) No.552(AP)/2018. Through the said order, the learned Single Judge has held that the offer of voluntary retirement made by the petitioner (respondent herein) has become effective from 31.08.2018. Consequently, the competent authority is directed to issue the release order to the petitioner on his voluntary retirement effective from 01.09.2018 within 7(seven) days from the date of receipt of a certified copy of the judgment. The instant appeal is filed assailing the said order passed by the learned Single Judge. 3. The brief facts leading to the present position is that the respondent, who joined the services as Junior Engineer in the Public Works Department (PWD), Government of Arunachal Pradesh in the year 1991, while serving as Executive Engineer had decided to voluntarily retire from service as provided under the Rules. Accordingly, he submitted an application dated 30.04.2018 giving notice of voluntary retirement. Since Rule 48-A of the Central Civil Services (Pension) Rules, 1972 (for short, "1972 Rules") provides that the notice is to be of 3 (three) months, he sought for the voluntary retirement with effect from 31.08.2018. The Superintending Engineer, Yachuli Civil Circle, PWD, through the letter dated 03.05.2018 forwarded the notice issued by the respondent to the Chief Engineer (Central Zone), who, in turn, forwarded the same to the Commissioner, PWD on 07.05.2018. Though the clearance from the vigilance department report is stated to have been sought for by the appellants herein, no further step was taken in that regard. Since the proviso to Sub-Rule (2) of Rule 48-A of the 1972 Rules provides that the voluntary retirement shall become effective from the date of expiry of the notice period if there is no refusal in the meanwhile, the respondent submitted a representation dated 03.10.2018 seeking that he be relieved from service with effect from 31.08.2018, i.e. the date on which the notice period came to an end. Since the representation was not considered one way or the other, the subject writ petition was filed seeking a declaration that the respondent herein has retired from service after the expiry of the period of notice for voluntary retirement on 31.08.2018. Consequential relief was prayed in the writ petition. It is in that light, the learned Single Judge, having adverted to all aspects of the matter, has granted the relief. 4. Mr. Jain, learned Additional Solicitor General, appearing for the appellants while assailing the order passed by the learned Single Judge has, at the outset, sought to contend that the provision as contained in Rule 48-A of 1972 Rules relates to payment of pension and in that light has sought to rely on the provisions as contained in the Fundamental Rules bearing Rule 56(k)(1) to contend that the provision, at the outset, would provide for voluntary retirement only to an officer who has attained the age of 50 years if he is in Group-A or Group-B posts. In that light, it is contended that the respondent does not satisfy the basic condition and in that circumstance placing reliance on Rule 48-A of the Pension Rules, which makes a provision for deeming the acceptance, would not be justified. It is his further case that on receipt of the application for voluntary retirement, necessary clearance from the vigilance was required to be obtained and in the instant case, such details were sought by issue of a communication dated 09.05.2018. Since the details were not available, the decision, one way or the other, could not have been taken. In that light, it is contended that the instant case is not a circumstance where the appellants have not processed the application, but the details were not available despite having sought for and in such circumstance, there cannot be automatic acceptance of the application when ultimately it is seen that there are certain allegations of irregularities committed by the respondent and in that regard, if he is permitted to retire, he would go scot free. In that regard, reliance was sought to be placed on the communication dated 05.03.2019 sent by Special Investigation Cell (SIC) to the Commissioner, Vigilance relating to complaints against the respondent. In that regard, reliance was sought to be placed on the communication dated 05.03.2019 sent by Special Investigation Cell (SIC) to the Commissioner, Vigilance relating to complaints against the respondent. In that regard, it is contended that in the present circumstance, merely because a decision could not be taken by the appellants for the reasons stated, the benefit cannot be extended to the respondent. The learned Additional Solicitor General would contend that in that circumstance, the consideration made by the learned Single Judge is beyond the nature of the consideration that is contemplated in a writ proceeding. He would contend that in a writ proceeding of the present nature, all that was required to be taken note was the validity or otherwise of the decision making process and the learned Single Judge ought not to have decided with regard to the veracity of the complaints against the respondent. In so far as the decision making process, it is contended that on receipt of the notice for voluntary retirement, immediately thereafter, on 09.05.2018, the process for seeking vigilance report had commenced and when different agencies are involved, if there is delay in the process of getting the details, the same should not be held against the appellants. 5. Mr. Chowdhury, learned senior counsel, appearing for the respondent would contend that admittedly, no disciplinary proceedings was pending or in contemplation against the respondent herein. With regard to the vigilance clearance, at no point earlier, the respondent had been intimated with regard to the steps taken nor was there refusal of the request earlier to expiry of the notice period. Even when a representation was made seeking deemed acceptance of the voluntary retirement, at that stage also no response was forthcoming and in that circumstance when the writ petition was filed, all that required consideration therein was with regard to the scope of the provision contained in Rule 48-A of the 1972 Rules keeping in view the nature of relief sought in the petition. In that circumstance, when there is no material whatsoever on record to indicate that the notice of voluntary retirement had been rejected, the same had taken effect at the end of the period of 3(three) months. In that light, it is contended that any other material sought to be relied on subsequent to the said date would not be of any relevance or consequence. In that light, it is contended that any other material sought to be relied on subsequent to the said date would not be of any relevance or consequence. In that regard, a detail reference is made to the order passed by the learned Single Judge to point out that the learned Single Judge has not only taken into consideration the factual position but has also kept in view the law, more particularly, the decision of the Hon'ble Supreme Court and has accordingly arrived at the conclusion. In that view, it is contended that the order passed by the learned Single Judge does not call for interference. 6. In the background of the contentions put forth, we have perused the appeal papers, including the order passed by the learned Single Judge. 7. The relief prayed by the respondent herein as the writ petitioner is predicated on the provision contained in Rule 48-A of the 1972 Rules as according to the petitioner, there was no refusal of the notice issued seeking voluntary retirement. In that circumstance, a prayer was made seeking for declaration that he has retired from service after the expiry of the period of notice seeking voluntary retirement, i.e. w.e.f 31.08.2018. In that view, he had sought that he be relieved with effect from 01.09.2018. 8. In that backdrop, Rule 48-A of the 1972 Rules has been taken note by the learned Single Judge which has been extracted in Paragraph 11 of the judgment passed in the writ petition. In that view, we do not find it necessary to extract the same once over again. However, a perusal of the Rule would indicate that it provides for a Government servant, who has completed 20 years of qualifying service to give notice of not less than 3(three) months in writing to the Appointing Authority to retire from service. The proviso to Sub-Sec (1) excludes the category of Government servants stated therein from such benefit, to which the respondent herein admittedly does not belong. Sub-Rule (2) contains that the notice of voluntary retirement given under Sub-Rule (1) shall require acceptance by the Appointing Authority. In that regard, there is no ambiguity whatsoever. The proviso to Sub-Sec (1) excludes the category of Government servants stated therein from such benefit, to which the respondent herein admittedly does not belong. Sub-Rule (2) contains that the notice of voluntary retirement given under Sub-Rule (1) shall require acceptance by the Appointing Authority. In that regard, there is no ambiguity whatsoever. The proviso to Sub-Rule (2) indicates that where the Appointing Authority does not refuse to grant the permission for retirement before expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. In the instant case, the fact that the Appointing Authority has not refused the permission for retirement before expiry of the period specified in the notice is not in dispute. Hence, the only issue herein is as to whether even in that circumstance, the appellants can still seek to contend that the notice of voluntary retirement relating to the respondent is not liable to be accepted and that the same has not come into effect even after the expiry of the notice period of 3(three) months. 9. As noticed, the learned Additional Solicitor General has sought to place reliance on FR 56(k)(1) to contend that in a circumstance where the respondent has not satisfied the basic condition by attaining the age of 50 years, the consideration under the Pension Rules would not arise. At the outset, it is necessary to take note that the respondent herein in the course of the pleadings in the writ petition, apart from referring to Rule 48-A, has also made detailed reference to Rule 56(k) of the Fundamental Rules and Supplementary Rules in Paragraph 13 of the writ petition and a statement has been made that the petitioner (respondent herein) satisfies each of the pre-conditions provided in FR 56(k). Such statement is made on oath and there is no specific denial by the appellants that the respondent herein did not satisfy the said condition nor is any contrary material to that effect placed on record. In that view of the matter, a contention sought to be urged to the contrary at the bar without foundation on this aspect cannot be countenanced. Further the very understanding of the matter by the appellants is articulated in the communication dated 11.09.2018 at Annexure-4 wherein the retirement becoming effective in terms of Rule 48-A (2) of Rules, 1972 is referred. Further the very understanding of the matter by the appellants is articulated in the communication dated 11.09.2018 at Annexure-4 wherein the retirement becoming effective in terms of Rule 48-A (2) of Rules, 1972 is referred. Therefore, the only aspect which requires consideration is with regard to the effect of Rule 48-A and the right thereby created and accrued. On that aspect, apart from the detailed reference made by the learned Single Judge to the decision in the case of Tek Chand -Vs- Dile Ram, (2001) 3 SCC 290 , reliance is placed by the learned Senior Counsel for the respondent herein on the said decision in the course of the submissions herein. 10. In the said decision, the scope and purport of Rule 48-A had arisen for consideration in the circumstance where the validity of acceptance of the nomination had arisen for consideration in the background of the allegation of holding office of profit. In that circumstance, the Hon'ble Supreme Court had taken note that in the said case also it was not disputed that the Appointing Authority did not refuse to grant the permission for retirement before expiry of the period specified in the application submitted therein on 05.12.1994. In that circumstance, keeping in view the proviso to sub-rule (2) to Rule 48-A, the Hon'ble Supreme Court was of the opinion that the retirement had become effective from the date of completion of the notice period and therefore the acceptance of nomination was justified. In fact, even in the said case a reference was made to Rule 56(k) of the Fundamental Rules and it was held that since the proviso to sub-rule (2) of Rule 48-A is clear in itself and is self contained, the other provisions need not be looked to. Though the learned Assistant Solicitor General sought to distinguish the said decision as an opinion expressed in the facts and circumstances arising therein, we are unable to accept such contention when it is noticed that what was considered therein was whether a person issuing the notice for voluntary retirement had ceased to be an employee after the notice period expired and in that circumstance when the nomination for election was held valid by the Hon'ble Supreme Court in respect of a person who had offered himself as a candidate. Based on the very provisions contained in Rule 48-A, when the nomination was held valid, the conclusion reached will be applicable to the instant facts as well since the ratio is that if there is no refusal of the notice, the retirement will become effective after the notice period. Therefore, in that background in the instant facts also, when there is no rejection of the notice submitted by the respondent herein seeking voluntary retirement and the period of three months had elapsed from the date of the notice, the same will become effective. 11. In that background though much is sought to be made on behalf of the appellants to contend that on receipt of the notice on 30.04.2018, a communication was addressed by the concerned Department on 09.05.2018 seeking clearance from the Vigilance Department, no action whatsoever has been taken to communicate to the respondent herein if the vigilance report was not received by the Appointing Authority before the expiry of the notice period. In fact, much after the expiry of the notice period on 30.08.2018, the respondent herein addressed the representation dated 03.10.2018 to the Appointing Authority indicating the deemed acceptance of the voluntary retirement wherein he has clearly indicated that till the said date, no order has been passed and no communication has been made with him in respect of his notice of voluntary retirement. In that light, he had sought that he be released from the establishment with effect from 31.08.2018. It is significant to note that the Appointing Authority had not responded even to the said communication either by indicating the pendency of any proceeding against him or to state that his request cannot be accepted in view of the necessary details being sought in that regard and the same not being available in the meanwhile. It is in that background the respondent herein filed the writ petition on 08.11.2018 seeking relief and contending therein that the respondent herein had sought for voluntary retirement to contest in the election. It is only thereafter the appellants herein have attempted to put forth certain contentions with regard to allegations against the respondent herein. The status report dated 14.11.2018 was sought to be relied upon. It is only thereafter the appellants herein have attempted to put forth certain contentions with regard to allegations against the respondent herein. The status report dated 14.11.2018 was sought to be relied upon. In fact, the learned Single Judge has taken note of the same and in that light, on examination, while keeping in view the proviso to sub-rule (2) to Rule 48-A of the Rules 1972 has arrived at the conclusion that the details as furnished through the status report would not be of relevance keeping in view the sequence thereof. Learned Single Judge has taken note of each of the allegation referred therein and the period during which it was made. 12. The learned Assistant Solicitor General though has sought to contend that the learned Single Judge has traversed beyond and exceeded the scope available in a writ proceeding, on perusal of the order passed by the learned Single Judge, we are of the opinion that the learned Single Judge, in fact, has not decided upon the veracity of the complaint or the truth or otherwise thereof. What was examined by the learned Single Judge was to take note whether the nature of the complaint as relied upon at that point in time could be accepted to take note of the same as a bonafide exercise in the decision making process. If in that background the subsequent communication dated 05.03.2019 sought to be relied on by the appellants in the course of the instant appeal is also taken note, the same would in fact refer to the very nature of the proceeding which had been relied upon in the status report dated 14.11.2018 to which a reference has been made and an appropriate consideration has been made by the learned Single Judge. Hence the same would not alter the situation when the right under Rule 48-A has accrued. 13. In that background, in the present circumstance, when the notice period of three months had elapsed and no step had been taken by the appellants to either reject the notice or defer the consideration of the request for voluntary retirement by passing an order to that effect and communicating the same, a right had accrued and crystallised in favour of the respondent. Hence the materials sought to be relied on subsequently in the context of the notice being issued and any other contentions to the contrary cannot be accepted so as to defeat such right. In that view, the decision in the case of Sethi Auto Service Station & Anr. -Vs- Delhi Development Authority & Ors., (2009) 1 SCC 180 , relied upon by the learned Assistant Solicitor General would also not be of assistance. In the said case the issue was with regard to the legitimate expectation as claimed and in that light it was held therein that the noting on the file would not be sufficient and only when there is communication as per law, a right is created. In that view, it is contended herein that until a decision is taken by the Government to accept the voluntary retirement application no right is created and therefore, the respondent cannot have any legitimate expectation for acceptance of his voluntary retirement. 14. In the instant case, Rule 48-A and the proviso to sub-rule (2) is to the contrary effect. It does not provide that the voluntary retirement will become effective only after communication of the acceptance. On the other hand, it provides that if there is no communication indicating refusal, the notice is deemed to have been accepted as it becomes effective when the period has expired. When the provision subsists, it would have to be accepted in the manner as it exists. 15. Therefore, in the above background, in an intra Court appeal of the present nature, we notice that the learned Single Judge has taken into consideration all aspects of the matter and has arrived at the conclusion. Further, in the present appeal, no other additional material is available to indicate that the notice of voluntary retirement issued by the respondent had been replied to in any manner so as to indicate deferment or is rejected before the expiry of the period. Hence, the respondent would be entitled to the benefit of the declaration as sought in the writ petition. In that view, the learned Single Judge was justified in concluding that the notice of voluntary retirement issued by the respondent herein has become effective from 31.08.2018. In that view, the order dated 21.01.2019 passed by the learned Single Judge does not call for interference. 16. In that view, the learned Single Judge was justified in concluding that the notice of voluntary retirement issued by the respondent herein has become effective from 31.08.2018. In that view, the order dated 21.01.2019 passed by the learned Single Judge does not call for interference. 16. The appeal, accordingly being devoid of merit, stands dismissed with no order as to costs.