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2022 DIGILAW 60 (RAJ)

Vishnu Joshi W/o Shri Bhuwaneshwar Joshi v. State of Rajasthan through the Secretary, Department of Education

2022-01-07

REKHA BORANA

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JUDGMENT : Rekha Borana, J. 1. Brief facts of the case are that the petitioner was appointed as Teacher Grade III on temporary basis in the year 1975 and after completion of the requisite training she was regularized in the year 1978. 2. On 22.07.2010, the petitioner was relieved from her place of working on the pretext of one transfer order dated 14.07.2010, whereby, the petitioner had been transferred to Ossian. On the same date i.e. 22.07.2010, the petitioner served a representation to the concerned authority stating thereby that no transfer order dated 14.07.2010 as alleged has been served on her and therefore, she was not even aware on any such transfer order. 3. On the same date i.e. 22.07.2010, an application was preferred by the petitioner for her voluntarily retirement from the services w.e.f. 01.11.2010. When no action on her application for voluntary retirement was taken by the Department, the petitioner preferred one more application on 01.10.2012, stating thereby that she had earlier too moved an application for voluntary retirement and now she is again submitting the same in the required form. Vide the application, she prayed for an order of her voluntary retirement with immediate effect. No action whatsoever was taken by the Department on the applications preferred by the petitioner and on 18.09.2014, she was served with a notice stating thereby that as she has remained absent from duty without sanction of leave, disciplinary proceedings are intended be initiated against her. The said notice mentioned that earlier notice dated 20.11.2012 under Rule 86 of the Rajasthan Service Rules, 1951 was served on her and vide paper publication dated 03.10.2013 also, the notice was served on her but she has not responded to any of them and therefore, now the disciplinary proceedings are sought to be initiated against her. 4. On receipt of the said notice, the petitioner vide letter dated 30.09.2014 and further 17.03.2015 filed a detailed reply and specifically submitted that she had already applied for voluntary retirement and action on part of the Department was pending on the same. Petitioner further submitted that she was served with no notice regarding absence from duty and therefore, no disciplinary proceedings can be initiated against her. As no further action has been taken by the Department, the petitioner being aggrieved against the same, filed the present petition. 5. Petitioner further submitted that she was served with no notice regarding absence from duty and therefore, no disciplinary proceedings can be initiated against her. As no further action has been taken by the Department, the petitioner being aggrieved against the same, filed the present petition. 5. Counsel for the petitioner has submitted that the petitioner had submitted her application for voluntary retirement on 22.07.2010 and in view of Rule 50 of Rajasthan Civil Services (Pension) Rules, 1996 (for short 'Rules of 1996') the same was required to be accepted by the appointing authority and if not, the same shall automatically became effective from the date of expiry of the period mentioned in her application i.e. 01.11.2010. Counsel further submitted that it was the specific case of the petitioner that the alleged notice dated 20.11.2012 was never served on the petitioner and the respondents have failed to prove that the same was ever served on her. The counsel further, while referring to the so called paper publication dated 04.03.2013, submitted that the same cannot be termed to be a notice by any stretch of imagination. The same is just a piece of news published in the newspaper which cannot be termed to be a notice so as to be enough for initiation of any disciplinary proceedings against her. Counsel submitted that the law provides for a specific procedure to be adopted and followed for initiation of any disciplinary proceedings against an employee. 6. With the above submissions, counsel for the petitioner further submitted that as the application of the petitioner had never been refused or rejected in terms of Rule 15, the same automatically came into effect w.e.f. 01.11.2010 and therefore, the petitioner ought to have been deemed retired on that date. As a consequence, the petitioner ought to have been granted all her retiremental benefits w.e.f. 01.11.2010. 7. Per contra, counsel for the respondents submitted that the alleged application praying for voluntary retirement dated 22.07.2010 was never received by the Department and therefore, no action thereupon could have been taken. Counsel submitted that despite several notices being served on the petitioner, she remained absent from duty and never responded to the notices. Besides this, counsel has referred to a paper publication dated 12.06.2015, whereby, a notice was served on several employees including the petitioner. 8. Heard the parties and perused the material available on record. 9. Counsel submitted that despite several notices being served on the petitioner, she remained absent from duty and never responded to the notices. Besides this, counsel has referred to a paper publication dated 12.06.2015, whereby, a notice was served on several employees including the petitioner. 8. Heard the parties and perused the material available on record. 9. So far as the contention of the counsel for respondent that the application dated 22.07.2010 was never received by the Department is concerned, the same falls flat by perusal of the note sheets as placed on record by the petitioner along with her rejoinder. The note sheet dated 08.10.2013 reads as under: fuosnu gS fd Jherh fo".kq tks'kh] v/;kfidk] tks fd iwoZ esa jk- ck- m- Ák- fo- x.ks'kefUnj] tks/kiqj esa dk;Zjr Fkh] ÁkFkZuki= ÁLrqr dj fnukad 01-11-2010 ls LoSfPNd lsokfuo`fr dk vkosnu ÁLrqr fd;k gSA ewy gh ÁkFkZuk i= voyksdukFkZ, oa vkns'kkFkZ ÁLrqr gSA 10. The specific mention of the fact that the application in original had been submitted for further orders is sufficient to prove that the application of the petitioner had been received and even been proceeded further by the Department. The subsequent note sheets verifies the fact that the application of the petitioner remained under consideration for a long time but no decision whatsoever was taken on the same. 11. So far as the second contention of the respondents that several notices were served on the petitioner but she did not respond to the same and remained absent from duty is concerned, the same too does not ask for any interference as the only notice placed on record by the respondents is dated 12.06.2015 which is a publication in the newspaper. It has not been proved on record that the notice dated 20.11.2012 as alleged was ever served on the petitioner. 12. Rule 50 of the Rules of 1996 reads as under: "50. It has not been proved on record that the notice dated 20.11.2012 as alleged was ever served on the petitioner. 12. Rule 50 of the Rules of 1996 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." 13. A perusal of the Rule 50 of the Rules of 1996 clearly states that an application/notice for voluntary retirement has to be accepted by the appointing authority and the proviso specifically provides that if the acceptance as required is not granted by the appointing authority before the expiry of the period specified in the notice, the retirement automatically becomes effective from the date of expiry of the said period. 14. It is clear on record that the application was submitted by the petitioner on 22.07.2010 and in terms of Rule 50 of the Rules of 1996, the maximum time available for the appointing authority to grant the acceptance was till 01.11.2010. Admittedly, no such acceptance has been granted by the appointing authority in the matter and thereafter, the retirement automatically became effective w.e.f. 01.11.2010. 15. In view of the above observations, the present writ petition is allowed. 16. The respondents are directed to treat the petitioner retired from the services w.e.f. 01.11.2010. Further the respondents are directed to pay all the retiremental benefits to the petitioner in terms of law within a period of six weeks of the receipt of the copy of this order. The petitioner shall also be entitled to interest @ 6% per annum on the amount qua her retiremental benefits.