Shahabuddin vs The State of Manipur and Others

N. Kotiswar Singh, J—Heard Mr. L. Raju, learned counsel for the petitioner and Mr. R.S. Reisang, learned senior GA assisted by Mr. Shyam Sharma, learned GA for the State respondents.

In this writ petition, the issue which has arisen for decision is as regards the validity of an order refusing to accept an application for voluntary retirement after about two years of the application.

The writ petition has been filed by one Md. Shahabuddin, who was serving as a Grade-IV employee in the Treasury Establishment of the Finance Department, Government of Manipur on regular basis. The petitioner was appointed as Grade IV employee on 27.10.1981 on regular basis on the recommendation of a DPC vide appointment order No. 4/TRY-IMP/80 dated 27.10.1981. According to the petitioner, having completed twenty years of regular/qualifying service, because of certain domestic reasons, he submitted an application dated 17.9.2007 (Annexure-A/2) to the appointing authority requesting him to allow to retire voluntarily from service w.e.f. 1.1.2008 (F.N). The petitioner contends that even though the petitioner had submitted an application seeking voluntary retirement as per the rules, giving more than three months notice as required under the rules, the same was neither accepted nor rejected in accordance with law. However, after about two years of the submission of the application, the petitioner was informed that his application for voluntary retirement from service has been refused by the Government on the ground that there are certain pending cases against the petitioner, vide Office Memorandum dated 26.6.2009 (Annexure-A/3 to the writ petition).

The petitioner has assailed this refusal to accept his application for voluntary retirement in terms of the office Memorandum dated 26.6.2009 on the ground that the said decision to refuse was taken after the lapse of the period of notice given by the petitioner in his application dated 17.9.2007 and as such, the said refusal being beyond the said stipulated period of notice, cannot be said to be a valid refusal. It has been contended by Mr. L. Raju, learned counsel for the petitioner that if the authority had desired to refuse the application of the petitioner to allow him to take voluntary retirement, the said decision ought to have been taken within the period of notice given in the application and communicated to him, and having not done so, the said refusal is no refusal in the eyes of law. Mr. Raju, further contends that in view of the fact that the decision to refuse was not taken during the aforesaid period, it shall be deemed that the retirement of the petitioner had already become effective from the date of expiry of the period i.e. 1.1.2008 in terms of the proviso to Rule 48-A(2) of the CCS (Pension) Rules, 1972 as applicable in the State of Manipur.

On the other hand, it is the case of the State respondents, as reflected in the affidavit-in-opposition filed by respondent No. 3 that the petitioner had absented from official duties without taking proper permission from the competent authority w.e.f. 19.9.2007 till 4.1.2008, that is prior to the submission of his voluntary retirement and his unauthorised absence is yet to be regularised. It has been also contended that the refusal of the application submitted by the petitioner could not be intimated to the petitioner in time as the petitioner was frequently summoned by the Vigilance Department in connection with certain cases relating to disproportionate source of income and certain complaint had been lodged against the staff of the Thoubal Treasury including the petitioner. It has been stated that the petitioner had been summoned by the Vigilance Department frequently in connection with the investigation in the case Nos. 1(1)08-VPS and 62/SP-V/2002, because of which the Government could not convey the decision of refusal to the petitioner in time. It is also contended that because of the unauthorised absence, the petitioner had been placed under suspension vide order dated 29.10.2008 which is still in force and as such there is no illegality in the aforesaid decision of the authority in refusing the permission to retire voluntarily from service as sought for by the petitioner, as communicated in the Office Memorandum dated 26.6.2009.

The respondents also stated that the petitioner was transferred from Thoubal Treasury to the Jiribam Treasury vide order dated 30.05.2008 which he did not comply because of which a departmental proceeding was initiated against him which is still pending. Accordingly, it has been also submitted that since there is a departmental proceeding pending against the petitioner, the question of acceptance of his application for voluntary retirement does no arise.

As regards the contentions raised by the State respondents, Mr. Raju, learned counsel for the petitioner has submitted that law is very clear that any decision to reject an application for voluntary retirement has to be taken and conveyed within the period of notice specified in the notice/application for voluntary retirement and since the same was not done within the said period, the voluntary retirement sought by the petitioner would be deemed to have become effective from 1.1.2008 and any decision to refuse his application subsequently will have no effect whatsoever. Mr. Raju, also submitted that all those actions taken against the petitioner by transferring him to Jiribam Treasury office vide order dated 30.5.2008 and placing him under suspension vide order dated 29.10.2008 etc. were taken after the voluntary retirement of the petitioner had become effective w.e.f. 1.1.2008 and as such, all these actions which are post retirement, cannot be acted upon. It is also submitted by Mr. Raju, learned counsel for the petitioner that the impugned Office Memorandum dated 26.6.2009 does not dispute the submission of application by the petitioner on 17.9.2007 and as such, since the authorities have not refused the application for voluntary retirement within the period of notice, such refusal cannot be said to be valid.

From the submissions and the averments made above, it is seen that the only question to be decided by this Court is about the validity of the office Memorandum dated 26.6.2009 by which the authority rejected the application of the petitioner seeking voluntary retirement submitted on 17.9.2007 after about two years. In this regard, we may refer to the provisions of Rule 48-A(2) of the Central Services (Pension) Rules, 1972, as the plea of the petitioner is based on this rule, which reads as under.

"48-A. Retirement on completion of 20 years'' qualifying service.

(1) At any time after a Government servant has completed twenty 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 no refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3.A)........

.............. "

Under Rule 48-A(1), a Government servant who has completed twenty years'' qualifying service, may, by giving notice of not less than three months in writing to the Appointing Authority retire from service. Sub rule (2) provides that such a notice would require acceptance by the appointing authority, further providing that, if the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice given by the Government employee, the retirement shall become effective from the date of expiry of the said period. In this case, undisputedly, the petitioner submitted in writing to the appointing authority seeking voluntary retirement from service on 17.9.2007, to be effective from 1.1.2008. Evidently, the petitioner had given more than three months notice in writing in seeking voluntary retirement from service and as such, the requirement of Sub-rule (1) of Rule 48-A of the CCS (Pension) Rules, had been fulfilled as the requirement of law is to give a notice of not less than three months. In the present case, three months notice period expired on 16.12.2007 as the petitioner sought to retire voluntarily from service by his application dated 17.9.2007 to be effective from 1.1.2008.

Coming to the other requirement of the acceptance of the said application for voluntary retirement by the appointing authority, in this case, the appointing authority did not accept the application seeking for voluntary retirement submitted by the petitioner within the said period of notice (i.e. from 17.9.2007 to 1.1.2008). The authority rejected his application seeking for voluntary retirement very belatedly. The rejection was communicated to the petitioner after about two years vide office Memorandum dated 26.6.2009 (Annexure-A/3). Therefore, the question has arisen whether such a belated refusal of the authority to grant permission for voluntary retirement can be said to be valid or not. The rejection by the appointing authority of the application of the petitioner seeking voluntary retirement as mentioned above, was not made within the aforesaid period of notice i.e. from 17.9.2007 to 1.1.2008. The reason offered by the State Government for such a delay as mentioned above is that the rejection could not be intimated to the petitioner in time during the aforesaid period specified in the said notice because of pendency of certain vigilance cases against the petitioner and also for the fact that the petitioner had been already placed under suspension for unauthorised absence. This contention of the State respondent, however, does not seem to be acceptable in view of the decision of the Hon''ble Supreme Court in Tek Chand Vs. Dile Ram, AIR 2001 SC 905 : (2001) 2 JT 114 : (2001) 1 SCALE 471 : (2001) 3 SCC 290 : (2001) SCC(L&S) 555 : (2001) 1 SCR 527 : (2001) AIRSCW 540 : (2001) 1 Supreme 444 relied upon by Mr. Raju, learned counsel for the petitioner. In Tek Chand case (supra) the Hon''ble Supreme Court considered the provisions of Rule 48-A of the CCS (Pension) Rules, 1972 and held that if the appointing authority does not refuse to grant permission for retirement before expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period. The Hon''ble Supreme Court repelled the argument in the said case that the acceptance can be given even long after the date of expiry of the period specified in the notice and that voluntary retirement may become effect from the date specified in the notice, holding that such a position would lead to an anomalous situation. The Hon''ble Supreme Court in Tek Chand case (supra) in para 31, 32 and 33 held as follows.

"31. It is not disputed that the appointing authority did not refuse to grant the permission for retirement before expiry of the period specified in the said application dated 5.12.1994 given by Nikka Ram. Further, no communication whatsoever was made to him within the said period. During the course of the argument before the High Court, the learned counsel for the parties referred to Rule 48-A of the Rules, of course, placing their own interpretation. Since the said Rule is material and has bearing on the question to be determined, it is extracted below:--

48-A. Retirement on completion of 20 years qualifying service.

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is

(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes.

(ii) Posted abroad in foreign based offices of the Ministries/Departments.

(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.

(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 become effective from the date of expiry of the said period."

Under sub-rule (1) of the said Rule, at any time after completion of 20 years qualifying service, a Government servant could give notice of not less than three months in writing to the appointing authority for retirement from service. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority. In the proviso to sub-rule (2) of Rule 48-A, it is clearly stated that in case 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 become effective from the date of expiry of the said period.

It is clear from sub-rule (2) of the Rule that the appointing authority is required to accept the notice of voluntary retirement given under sub-rule (1). It is open to the appointing authority to refuse also on whatever grounds available to it but such refusal has to be before the expiry of the period specified in the notice. The proviso to sub-rule (2) is clear and certain in its terms. If 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 sought for becomes effective from the date of expiry of the said period. In this case, admittedly, the appointing authority did not refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the notice dated 5.12.1994. The learned senior counsel for the respondent argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such express acceptance the Government servant continues to be in service. In support of this submission, he drew our attention to Rule 56(k) of Fundamental Rules. He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the notice and the retirement could be effective from the date specified in the notice. Since the proviso to sub- rule (2) of Rule 48-A is clear in itself and the said Rule 48-A is self-contained, in our opinion, it is unnecessary to look to other provisions, more so in the light of law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the notice and that the voluntary retirement may become effective from the date specified in the notice, will lead to anomalous situation. Take a case, if an application for voluntary retirement is accepted few years later from the date specified in the notice and voluntary retirement becomes operative from the date of expiry of the notice period itself, what would be the position or status of such a Government Servant during the period from the date of expiry of the notice period upto the date of acceptance of the voluntary retirement by the appointing authority? One either continues in service or does not continue in service. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a Government servant could continue in service till the voluntary retirement is accepted. The proviso to sub-rule (2) of Rule 48-A of the Rules does not admit such situation."

In Tek Chand case (supra) one of the candidates namely, Nikka Ram, who had contested in the Assembly Election had sought voluntary retirement from service w.e.f. 5.12.1994 by giving three months notice which was completed on 28.2.1995 and thereafter he contested election. One of the grounds raised in the election petition was that the candidature of Nikka Ram was improperly accepted as he was holding office of profit which materially affected the result of the election. It was contended that the application for voluntary retirement submitted by Nikka Ram was not accepted by the authority and as such he remained in service and since he was in service his candidature ought not to have been accepted. In that context the Hon''ble Supreme Court held that if the appointing authority does not refuse to grant permission for retirement before expiry of the period specified in the notice, the retirement would become effective from the date of expiry of the period of notice.

This Court is of the view that the decision rendered by the Hon''ble Supreme Court in Tek Chand case (supra) will be squarely applicable in the present case. In the present case, as mentioned above, the refusal by the authority in allowing him to seek voluntary retirement was not within the specified period of notice given in his application dated 17.9.2007 i.e. within 1.1.2008 but was much later on 26.6.2009. By the deeming provision as contained in the proviso to Rule 48-A(2) of the CCS (Pension) Rules, 1972, the voluntary retirement in terms of the petitioner''s application will become effective w.e.f. 1.1.2008, and the refusal by the authority of his application for voluntary retirement as contained in office Memorandum dated 26.6.2009 is of no consequence as far as the application of the petitioner seeking voluntary retirement is concerned as by fiction of law, the retirement had already become effective from 1.1.2008. In other words, the office Memorandum dated 26.6.2009 cannot be said to be a valid order of rejection as the same had not been issued during the said period of notice and as such the Office Memorandum dated 26.6.2009 is declared invalid as far as the refusal to allow the petitioner to go on voluntary retirement as per his application dated 17.9.2007 is concerned.

Since this Court holds that the petitioner would be deemed to have retired from service w.e.f. 1.1.2008, all other subsequent orders issued after his retirement became effective, would be of no consequence. However, this would not come in the way of the proceedings already initiated by the State authority as mentioned in their affidavit-in-opposition about the pending Vigilance cases being No. 1(1)08-VPS and 62/SP-V/2002 as there is no rule debarring continuation of such criminal/vigilance cases pending. Further, the authorities will be also at liberty to invoke the provisions of Rule 9(2)(b) of the CCS (Pension) Rules, 1972 for initiating any departmental proceeding even after the retirement of the petitioner from service.

In the result, the writ petition is allowed. The impugned orders dated 30.05.2008, 20.10.2008 and 26.6.2009 are hereby set aside subject to the observations made above.