Angelus vs The Director of Elementary Education, The District Elementary Education Officer, The Additional Assistant Elementary Educational Officer and The Principal Accountant General (Accounts and entitlements)

N. Paul Vasanthakumar, J.—Petitioner seeks to quash the order of the second respondent dated 9 .8.2005 and to direct the respondents to

pay pension and all attendant benefits with effect from his date of retirement i.e., 5.6.1988 together with interest at 24% p.a. for the delay in

payment.

The brief facts of the case as stated in the affidavit are that the petitioner joined duty as Headmaster in the Panchayat Union Elementary School,

Ponnalikootai on 17.8.1964 and on 25.2.1988, due to his ill-health, he gave a letter seeking voluntary retirement, giving three months statutory

notice. The said letter informing voluntary retirement was issued to the second respondent on 26.2.1988 and the postal acknowledgment in this

regard is also filed in the typed set of papers. Petitioner states that no order either accepting or rejecting the voluntary retirement was passed by the

second respondent. After the expiry of petitioner''s medical leave on 31.5.1988, on the advise of the department, petitioner joined duty on

1.6.1988 and voluntarily relieved himself on 5.6.1988 after the three months notice period.

Petitioner further states that he was not given the retirement benefits on the ground that the department misplaced his service register and the

same is not traceable and the same was the stand taken by the third respondent in his proceedings dated 15.5.1996. The third respondent,

thereafter prepared a duplicate service register and forwarded the same on 29.7.1999 to the second respondent for sanction of the petitioner''s

pension. Second respondent also advised the third respondent to process petitioner''s pension proposal based on the duplicate service register.

The 4th respondent by proceeding dated 29.9.20 01 addressed to the third respondent and returned petitioner''s pension proposal with certain

remarks. The second respondent failed to furnish the remarks as required by the 4th respondent. Petitioner submitted a representation to the third

respondent on 13.2.2002 and also to the second respondent on 2.2.2004 and requested to settle his retirement benefits and pension. The said

representation having not been considered, he filed W.P. No. 11167 of 2004 before this Court for issuing a writ of mandamus to direct the

respondents 2 and 3 to pay the petitioner''s pensionary benefits from 5.6.1988 and this Court admitted the writ petition on 23.4.2004 and as no

counter affidavit was filed, on 12.7.2005, taking into the facts and circumstances of the case, this Court passed the following order, ""Having regard

to the peculiar circumstances of the case that the petitioner is not getting pensionary benefits right from the year 1988, I am of the view that a

direction can be issued to the first respondent to dispose of the representation of the petitioner. Hence, the first respondent is hereby directed to

dispose of the petitioner''s representation dated 2.2.2004 in accordance with law within a period of four weeks from today.

Pursuant to the above direction, petitioner''s request was considered and the second respondent by his proceedings dated 9.8.2005 rejected

petitioner''s pension proposal, stating that the petitioner, without prior permission from the second respondent stopped attending duty from

5.6.1988 and therefore he should be deemed to have resigned from the said date and that the petitioner was not having 20 years of service and

also not completed 50 years of age and hence he is not eligible for pension. On receipt of the said order dated 9.8.2005, petitioner submitted a

detailed representation to the second respondent on 29.8.2005 and requested to consider the same as appeal and sanction the pensionary

benefits. The second respondent having not considered the same, petitioner has filed the present writ petition.

The learned Counsel for the petitioner submitted that the impugned order dated 9.8.2005 issued by the second respondent is inconsistent to the

stand taken by the department, since earlier petitioner''s pension proposal was recommended to the 4th respondent and that the second

respondent also without application of mind mechanically forwarded the order, which is illegal. The second ground of attack is that the voluntary

retirement request was made on 25.2.1988 by giving three months notice and the said application was received in the office of the third respondent

on 26.2.1988 and the same was forwarded to the District Educational Officer, Devakottai, and the postal acknowledgment in this regard is filed

among the typed set of papers. Therefore, according to the learned Counsel, the contention of the respondent that the voluntary retirement request

was not received by the second respondent is factually incorrect. The learned Counsel further submitted that the request for voluntary retirement

was not rejected at any point of time and the petitioner is deemed to be voluntarily retired from 5.6.1988 in terms of Rule 56(3)(a) of the

Fundamental Rules. The learned Counsel also argued that as per the pension proposal submitted by the third respondent dated 3.1.2001,

petitioner''s total period of service is from 17.8.1964 to 5.6.1988 i.e, 23 years, 5 months and 18 days, after deducting extraordinary leave not

qualifying for pension from 7.8.1985 to 31.5.1988 (2 years, 9 months and 25 days). Thus, the petitioner has got total qualifying service of 21

years, 9 months and 25 days, plus an additional 5 years of service, bringing the total service to 26 years, 11 months and 23 days.

The learned Government Advocate, pointing out the averments contained in the counter affidavit argued that petitioner while working as

Headmaster in the Panchayat Union Elementary School, Ponnalikottai in Devakottai Panchayat Union, quit from his service on 5.6.1988 and he

was continuously on medical leave for 4 years, 11 months and 25 days from 5.8.1980 to 28.7.1985 and the petitioner rejoined duty on 29.7

.1985 and his period of leave from 5.9.1980 to 4.8.1981 was sanctioned as leave on loss of pay and from 4.8.1983 to 3.8.1984 also leave was

sanctioned on loss of pay i.e, 2 years. According to the Government Advocate, petitioner was directed to rejoin duty on 27.4.1988 by specifically

stating that if he fails to rejoin duty, he will be removed from service on public interest, pursuant to which he rejoined duty and worked till

5.6.1988. Even though a statement is made to deny the voluntary retirement, it is not stated as to whether the petitioner has submitted his

resignation on 5.6.1988 and relieved himself from service.

I have considered the rival submissions of the learned Counsel appearing for the petitioner as well as the learned Government Advocate.

The point in issue is whether the petitioner is entitled to get sanction of pension from 6.6.1988 on the claim of the petitioner that he has

voluntarily retired from 5.6.1988.

The submission of voluntary retirement application to the respondents 2 and 3 on 26.2.1988 is proved by the postal acknowledgment filed by

the petitioner. Petitioner is having 21 years, 11 months and 23 days of pensionable service after deducting the leave sanctioned to him on loss of

pay. The same is made clear from the proposal sent to the 4th respondent dated 29.11.2001, copy of which is filed in the typed set of papers. In

the said document dated 29.11.2001 it is clearly stated that the petitioner has voluntarily retired and the period of his service is from 17.8.1964 to

5.6.1988 and his average emolument was Rs. 5,749/-. The date from which petitioner''s pension is to commence is also mentioned as 6.6.1988

and the details of service are also mentioned as total service 26 years 11 months and 25 days and after deduction 5 years of total leave on loss of

pay, the pensionable service available is 21 years, 11 months and 23 days, based on which the proposal for sanction of pension and gratuity was

submitted to the 4th respondent.

The impugned order of the second respondent is perused in the light of the above facts. The reason stated in the impugned order is that the

petitioner''s alleged voluntary retirement request was not accepted by the department and the petitioner, as per the instructions lastly given by the

department, rejoined duty from 1.6.1988 and relieved himself from 5.6.1988 and for the said relieving, no order was obtained from the

department and therefore petitioner''s absence to duty after 5.6.1988 shall be treated only as resignation. It is also stated that for seeking voluntary

retirement a person must have completed 20 years of service or attained 50 years of age and as he has not complied with the said requirement he

is not entitled to go on voluntary retirement. The said contention raised in the impugned orders are answered as follows.

The submission of voluntary retirement application on 26.2.1988 to the respondents 2 and 3 is proved by production of letter as well as postal

acknowledgment. The completion of 21 years, 11 months and 23 days of pensionable service is certi the third respondent by his proceedings

dated 29.11.2001. Those, who completed more than 2 0 years of service or attained 50 years of age are entitled to submit application for

voluntary retirement as per Rule 56(3) of the Fundamental Rules. If no order of rejection of voluntary retirement is passed and communicated to

the person concerned, it is to be treated as deemed acceptance as per Rule 56(3)(f) of the Fundamental Rules. The said position is made clear by

the judgment of this Court reported in S.M.A. Mohamed Yusoof Vs. The Secretary to the Government of Tamil Nadu, Planning and Development

(ST3) Department and Another, . In the said judgment of mine, I have followed the decision of the Honourable Supreme Court reported in Tek

Chand Vs. Dile Ram, , wherein in para 35 the Honourable Supreme Court held as under,

... there are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically

comes into force on expiry of notice period. In the second category also, retirement comes into force unless an order is passed during notice

period withholding permission to retire and in the third category voluntary retirement does not come into force unless permission to this effect is

granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all

depends upon the relevant rules. In the case decided, the relevant Rule required acceptance of notice by appointing authority and the proviso to

the rule further laid down that retirement shall come into force automatically if the appointing authority did not refuse permission during the notice

period. Refusal was not communicated to the respondent during the notice period and the Court held that voluntary retirement came into force on

expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect. The

present case is almost identical to the one decided by this Court in the aforesaid decision.

The direction to rejoin duty was given by the second respondent prior to the expiry of notice period and therefore the petitioner joined during

the notice period and relieved himself from 5.6.1988, i.e, the date of expiry of notice period. In the absence of any rejection of application for

voluntary retirement, as submitted by the petitioner, and in the absence of any resignation letter submitted by the petitioner as contended by the

second respondent, petitioner cannot be treated as resigned from his post and if really the petitioner had resigned as contended now in the

impugned order, the third respondent ought not to have submitted proposal for sanction of pension and gratuity as stated in the proposal dated

29.11.2001. For calculation of the pensionary service, the period of leave sanctioned on loss of pay alone is to be deducted. Hence, petitioner

satisfy the 20 years of service period at the time of submitting application for voluntary retirement. Thus the petitioner is entitled to get himself

relieved from 5.6.1988 and the respondents are bound to sanction pension and other benefits to him from 6.6.1988.

In view of my above referred finding, the impugned order passed by the second respondent is set aside. The respondents are directed to

sanction pension and other retirement benefits to the petitioner from 6.6.1988. The arrears of pension, gratuity and other retirement benefits shall

be calculated and paid to the petitioner within a period of three months from the date of receipt of copy of this order. With regard to the interest,

as the petitioner has not taken prompt steps to get his pension sanctioned at the earliest and he had chosen to approach this Court for direction

only in the year 2005, I am not ordering interest in this case.

The writ petition is partly allowed in the above terms. No costs. Connected WPMP No. 37878 of 2005 is closed.