DR.PREM DUTTA SHARMA v. THE STATE OF BIHAR & ORS

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11873 of 2007 DR.PREM DUTTA SHARMA Versus THE STATE OF BIHAR & ORS ----------- 3/ 24/03/2009 Heard learned counsel for the petitioner and learned counsel for the State. The original petitioner came to this Court seeking certain relief on the issue of his voluntary retirement, grant of A.C.P. benefit. He has been deceased during the pendency of the writ application on

12.8.2008. I.A. No.6520/08 has been substituting him by his legal heir, his wife. Since the matter has financial implications for the family of the deceased, after hearing the counsel for the parties I.A. No.6520/08 is allowed. The original deceased petitioner is permitted to be substituted by his wife as his legal heir. The husband of the present petitioner was appointed as a tutor in the Magadh Medical College on

1.7.1975. He continued in Government service when he joined the Health Department on a subsequent date i.e.

4.4.2005. On grounds of his poor health he sought voluntary retirement by an application dated 12.4.2005. The last paragraph of the same stated that he may be relieved from 30th of June, 2005. It is not 2 controversy that he stopped attending office from

19.5.2005 because of his ailment after he made this request for voluntary retirement. The respondents have accepted the request for voluntary retirement on 4.4.2008 with effect from

18.5.2005. Learned counsel for the petitioner submits that for this period of interregnum from 19.5.2005 to

4.4.2008, the petitioner is entitled for other service benefits of her deceased husband like G.P.F., Leave Salary, Gratuity, Unutilized Leave etc. He submits that the respondents by a subsequent decision cannot give it a retrospective effect in a manner to affects rights which have already accrued by reason of the failure to take an appropriate decision within time. The last submission is for fixation of the family pension and other service and post retiral dues on the pay-scale that may be determined after grant of A.C.P. deemed to be the last pay drawn. A counter affidavit has been filed on behalf of the respondents. Learned counsel for the State submits that grant of A.C.P. from the relevant date is under consideration. An application for voluntary retirement by a 3 government servant is regulated by Rule-74 of the Bihar Service Code. Relevant for the present controversy is Rule-74[(b)(i) of the Bihar Service Code which reads as follows:- “Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice: Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:]” It has already been held by this Court that an application for voluntary retirement by an employee takes effect on the expiry of three months even if there be no communication of acceptance. The recital therein for any date thereafter be specified in the notice cannot be read to include a period within three months, though it may be for a period beyond three months. If the Government accepts request for voluntary retirement prior to the same, is an issue with which this Court is not concerned in the present case. On facts, an application for voluntary retirement was made on 12.4.2005. The period of three months expired on 12.7.2005. Till that date there has 4 been no communication of acceptance of the request for voluntary retirement and, therefore, there was deemed acceptance in law. The husband of the petitioner, therefore, by operation of law, is deemed to have voluntarily retired in terms of Rule-74B(i) of the Bihar Service Code on 12.7.2005 when nothing was communicated to him. The master and servant link stood severed. The error in the acts of the respondents in accepting the request for voluntary retirement on

4.4.2008 long after the expiry of this period of three months is of no consequence when the request for voluntary retirement has already taken effect by operation of law prior thereto. In 1977(4) S.C.C. 441 (Dinesh Chandra Sangma versus State of Assam) fundamental rule 56B and 56(c) regulating voluntary retirement consideration. It reads as follows:- “56.(c) Any government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.” It was held by the three-Judge Bench that it was clear that the effect of FR 56(c) was statutory unlike in the case of contracts of employment requiring an express order of acceptance of the retirement notice. It was stated at para-8: “There is no question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right 5 under FR 56(C).” It was again stated at para-13: “13.FR 56 is one of the statutory rules which binds the Government as well as the government servant. The condition of service which is envisaged in Rule 56(C) giving an option in absolute terms to a government servant to voluntarily retire with three months’ previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119.” And as follows at para 16: “16. The appellant has voluntarily retired by three months’ notice, not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule.” This view has been followed in 1999(4) S.C.C. 293 (State of Haryana & Ors. Vs. S.K. Singhal) and 2001(3) S.C.C. 290 (Tek Chandra Vs. Dile Ram). Reliance place by the counsel for the petitioner on a judgement reported in AIR 2008 S.C. 2449 (National Textile Corporation (M.P.) Ltd v. M.R. Jhadav) is misplaced. A claim for voluntary retirement shall have to be considered in accordance with the provisions regulating the same. In contradistinction to the present case where voluntary retirement regulated by provisions, the Supreme Court was considering the effect of voluntary retirement under a scheme and whether the same was in consonance with the scheme or not. The scheme, in the case before the 6 Supreme Court, provided a final decision to be taken and communicated. Though decision had been taken, no communication was made as required under the scheme. The judgement was rendered in that context. It has already been held that the husband of the petitioner stood voluntarily retired by operation of law on 12.7.2005. This Court, therefore, directs that the service, post retiral dues, pension, family pension on the last pay drawn after a final decision on the A.C.P. benefit to the deceased be taken within a maximum period three months the date receipt/production of a copy of this order and the legitimate dues be paid to the petitioner within the said period. The writ application stands allowed to the extent indicated above. KC ( Navin Sinha, J.)