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2020 DIGILAW 678 (RAJ)

Narayan Das v. State of Rajasthan

2020-10-21

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. In Application(1/2020):- For the reasons mentioned in the application for removing the defects, pointed out by the registry, the same is allowed. In Writ Petition:- 1. The petitioner has preferred this writ petition on account of the respondents' denial of his application seeking voluntary retirement under Rule 50 of the Pension Rules of 1996. 2. Learned counsel for the petitioner submits that the petitioner has completed the minimum required service for seeking voluntary retirement. The petitioner is suffering from depression, Osteoarthritis of both knees and Anxiety Neurosis. He had preferred an application seeking voluntary retirement on 31.8.2015 which was rejected on the same day by Secretary vide his letter dated 31.8.2015. He again preferred an application seeking voluntary retirement on medical grounds with effect from 30.4.2017 but the same was rejected by the Secretary Medical & Health Department vide his communication dated 21.4.2017. The petitioner being not in a position to perform his duties, again submitted voluntary retirement application seeking voluntary retirement with effect from 31.1.2018 which has already been rejected by the respondents on 7.2.2018. 3. Learned counsel submits that the petitioner again submitted an application seeking voluntary retirement from 31.1.2019. The said application was sent by the Director to the Secretary for its disposal, however, the same has remained undecided. Another letter was sent by the petitioner on 10.10.2019 seeking voluntary retirement which has remained unanswered. 4. Learned counsel submits that no administrative reasons are being specified for rejection of voluntary retirement to the petitioner. Learned counsel further submits that as per Rule 50(2), since the last application filed by the petitioner has remained undecided, the petitioner should be deemed to have retired on the expiry of the notice period. 5. Learned counsel has relied upon judgment passed by this court from time to time to submit that the petitioner cannot be forced to perform duty in-spite of his being unwell and his voluntary retirement application for having completed minimum required period of service cannot be rejected on flimsy ground. 6. Per contra, learned counsel appearing for the respondent has submitted that the application was rejected on administrative exigency and public interest. Learned counsel has relied upon the judgment passed by the Supreme Court in the case of "State of Uttar Pradesh & Ors. Vs. 6. Per contra, learned counsel appearing for the respondent has submitted that the application was rejected on administrative exigency and public interest. Learned counsel has relied upon the judgment passed by the Supreme Court in the case of "State of Uttar Pradesh & Ors. Vs. Achal Singh" reported in AIR 2018(17) SC 3940 to submit that the State Government has power to reject the application seeking voluntarily retirement for administrative exigency and requirement of doctors. Learned counsel submits that the last application which has been filed by the petitioner could not have been accepted as they have already rejected application. 7. I have considered the submissions. 8. The provision of Rule 50 govern the method and manner in which the premature retirement can be granted to an employee and it would be useful to quote the said rule alongwith the Government of Rajasthan decision appended to it which reads as under: "50. Retirement on completion of 15 years' qualifying Service (1) At any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service." (2) The notice of voluntary retirement given under sub rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period. "GOVERNMENT of RAJASTHAN'S DECISION Guidelines for acceptance of notice. - A notice of voluntary retirement given after completion of 2 "fifteen years" qualifying service will require acceptance by the appointing authority. Such acceptance may be generally given in all cases except that the Appointing Authority shall withhold permission to retire a Government servant: (i) who is under suspension; (ii) in whose case the disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case, is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service; (iii) in whose case prosecution is contemplated or may have been launched in a court of law. In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. In such cases, if it is proposed to accept the notice of voluntary retirement approval of the Government should be obtained. Even where the notice of voluntary retirement given by the Government servant requires acceptance by the appointing authority, the Government servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice." (3) (a) A Government servant referred to in sub rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor:, (b) On receipt of a request under clause (a), the appointing authority subject to the provisions of sub-Rule(2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months. (4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as defined under rule 45 of Rajasthan Civil Services (Pension) Rules, 1996, which the Government servant was receiving immediately before the date of retirement, and the increase not exceeding five years in his qualifying service under rule 51 shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity. (6) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. EXPLANATION - For the purpose of this rule, the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement. EXPLANATION - For the purpose of this rule, the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement. (7) If a Government servant seeks retirement under this rule while he is on leave not due, without returning to duty, the retirement, shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him. (8) A Government servant who gives notice of voluntary retirement under sub rule (1) of rule 50 shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 15 years qualifying service for pension." 9. In the case of Achal Singh(supra), the Supreme Court held as under: "27. In our considered opinion, Under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under the Rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds." 10. Thus, in view of the law laid down by the Supreme Court, the contention of the learned counsel for the petitioner that the State Government cannot be forced an Employee to perform duty against his will and it is a right of an individual for seeking voluntarily retirement, is not found to be made out and the said submission is rejected. It cannot be thus said that there is unfettered right to voluntarily retirement. Rule 50(2) of Pension Rules, 1996 does not give such right to the Govt. Servant. 11. The submission of the counsel for the petitioner that the petitioner was suffering from illness was already considered by the Supreme Court in the said case "State of Uttar Pradesh & Ors. Vs. Achal Singh" reported in 2018 (17) SCC 578, it was held as under: "39. It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. Vs. Achal Singh" reported in 2018 (17) SCC 578, it was held as under: "39. It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments." In view of above, the action of the respondents for rejecting an application vide its earlier order dated 31.8.2015, 21.4.2017, 7.2.2018 cannot be said to be illegal and unjustified. 12. However, this court finds that the submissions of the petitioner's counsel to be forceful that the petitioner has to be treated as having been retired. In view of the fact that the subsequent application filed by the petitioner seeking voluntarily retirement dated 10.10.2019 has remained unanswered and the said application has not been rejected by the respondents even till date. 13. However, learned Additional Advocate General and counsel for the petitioner are ad idem that the petitioner has not been relieved and is performing his duties till date and his retirement be made effective from 1st November, 2020. The petitioner's application for seeking voluntarily retirement shall be deemed to have become effective on account of there being no rejection till date and petitioner shall be treated to be retired with effect from 1st November, 2020 and would also be allowed to retiral benefits with effect from the said date. 14. The writ petition is allowed. 15. All pending applications also stand disposed of.