Shrikant Jain vs State of Madhya Pradesh

K.K. Trivedi, J.—The grievance of the petitioner is that he gave a notice of voluntary retirement under the provisions of Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (herein after referred to as ''Rules''). Accepting the said notice of voluntary retirement, order was passed on 03.04.2007 permitting the petitioner to voluntary retire with effect from 31.08.2006. As a result, pension papers of the petitioner were prepared and sent for sanction and since the final pension was to be granted, the petitioner was paid anticipatory pension. However, all of a sudden, without there being any justified reason intimated to the petitioner, the order impugned was issued on 14.05.2009 directing stoppage of the anticipatory pension, therefore, petitioner was required to approach this Court by way of filing this writ petition. By the said communication, it was pointed out that the pension case of the petitioner was not accepted by the Treasury Officer.

This writ petition was entertained, notices were issued to the respondents and an interim protection was granted directing that the operation of the order withholding the anticipatory pension of the petitioner shall remain stayed. The return has been filed by the respondents stating that the petitioner gave the notice under Rule 42(1)(a) of the Rules only when he has completed 15 years of qualifying service. However, an amendment in the Rules was already made with effect from 5th April, 2006 and the qualifying service to opt for voluntary retirement was enhanced to 25 years for the Medical Officers. That being so, in fact the notice of voluntary retirement given by the petitioner was not to be accepted at all and he was not to be permitted to voluntary retire, since the petitioner has not completed the qualifying service for the said purposes. That being so, the final pension papers sent by the Department were not accepted by the Treasury Officer and, therefore, the anticipatory pension granted to the petitioner was withheld. It is thus contented that the order is rightly passed and the relief claimed in the writ petition cannot be granted.

Rule 42 of the Rules, as amended on 5th April, 2006, prescribes thus :

"42. Retirement on completion of 15/20 years qualifying service.- (1)(a) Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in form 28 to the appointing authority at least one month before the date on which he wishes to retire or on payment by him of pay and allowances for the period of one month or for the period by which the notice actually given by him falls short of one month;

Provided that this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following Departments, until they have completed 25 years qualifying service :-

(a) Public Health & Family Welfare Department (Medical, Paramedical & Technical staff);

(b) Medical Education Department (Teaching Staff, Paramedical & Technical Staff);

Provided further that such Government servant shall not be allowed to retire from service without prior permission in writing of the appointing authority under the following circumstances :-

(i) Where the Government servant is under suspension;

(ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government servant;

Provided also that if the appointing authority has not taken the decision under clause (ii) of the second proviso, within six months from the date of notice given by the Government servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such government servant to retire from service on the date after expiry of the period of six months.

(b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him three months notice in Form 29.

Provided that such Government servant may be retired forthwith and on such retirement forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months, as the case may be.

NOTE-1. Before a Government servant service notice of retirement under clause(a) above, he should satisfy himself by means of a reference to the appointing authority that he has in fact, completed 20 or 25 years qualifying service, as the case may be, for pension. Similarly, the appointing authority, while giving notice of retirement to a Government servant under clause (b), above, should also satisfy itself, that the Government servant has, in fact completed 20 years qualifying service or he attains the age of 50 years.

NOTE-2. The period of notice of one month or three months or the notice period which is short of one month or three months, as the case may be, shall be reckoned from the date on which it is signed and put in communication under registered post. Where the notice is served personally, the period shall be reckoned from the date of receipt thereof.

NOTE-3. The Government servant, on submission of an application shall be granted such leave during the period of notice to which he is entitled according to rules:

Provided that no leave shall be granted beyond the expiry of the period of notice.

NOTE-4. The payment of pension for the period for which pay and allowances have been paid to a Government Servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of rule 33 of these rules.

(2). A Government servant who has elected to retire under clause (a) of sub-rule (1) and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him:

Provided that the request for withdrawal shall be prior to the intended date of his retirement.

(3). Where the notice of retirement has been served by appointing authority on the Government servant, it may be withdrawn, if so desired for adequate reasons, provided that the Government servant concerned is agreeable."

Before authorizing any person to relinquish the post, orders are to be passed by the competent authority. No public servant governed by the Rules could relinquish the post on voluntary retirement without the permission of the competent authority. Such permission is required to be granted keeping in view the circumstances as stated under the Rules. If a Government servant is under suspension or where it is under consideration of the competent authority to institute disciplinary action against the Government servant, he or she may not be allowed to voluntary retire. This aspect is totally different than that of relinquishing the post by resignation. Therefore, unless there is an authenticated order, voluntary retirement will not take place only because of giving of notice by an employee or officer. From the perusal of the order passed by the respondents on 03.04.2007, it is clear that voluntary retirement of the petitioner was accepted with effect from 31.08.2006, though he has not completed qualifying service of 20 years on that day. If that was the position, the respondents were required to refuse the grant of permission to the petitioner to voluntary retire. In that circumstances, the petitioner would have remained in the employment or could have exercised his option of resigning from the post, which would have forfeited the entire service. At any rate, the petitioner could not be blamed in accepting the order of voluntary retirement issued in his favour. That being so, without examining these provisions, the direction to withhold anticipatory pension of the petitioner could not have been issued and, therefore, the said order cannot be treated to be a justified order by this Court.

Now the question is whether still under the Rules petitioner would be entitled to be permitted to voluntary retirement prematurely, specially when he has not completed the requisite years of service on the post only because of the order dated 03.04.2007 or he is deemed to be in service till he completes the requisite years of service. For that purpose, it is to be seen that Rules are to be relaxed by the State Government. Specific power is given under Rule 79 of the Rules to the State Government where the Government can exercise the power and relax a particular provision of the Rules for a particular person, as a special case. That being so, it would be appropriate to direct the respondents to consider whether the petitioner is still to be permitted to voluntary retire with effect from the date he has been permitted, though he has not completed the qualifying service, by exercising the power to relax the Rules or to treat as if the petitioner has retired from the date he had completed qualifying service. In either case the petitioner would be entitled to grant of pension.

The writ petition stands allowed. The order dated 14.05.2009 is hereby quashed. The respondents are directed to take final decision in the matter of permitting voluntary retirement of the petitioner as indicted herein above, in exercise of power of relaxation of Rules, as given in Rule 79 of the Rules, within three months from the date of receipt of the order passed today.

The writ petition is allowed to the extent indicated herein above. There shall be no order as to cost.