High Court
Case Details
WP(C) 4941/2006 BEFORE HON’BLE MR. JUSTICE T. VAIPHEI
Legal Reasoning
In this writ petition, the petitioner is aggrieved by the refusal of the respond ent authorities to release his pensionary benefits purportedly on the ground tha t he did not complete the qualifying service of 20 years at the time of seeking voluntary retirement under Rule 56(c) of the Fundamental Rules and Subsidiary Ru les has modified by the Office Memorandum dated 12.8.1984 issued by the Finance Department of the Government of Assam. The petitioner was appointed as Constable under the 11th Assam Police Battalion and had continued to serve as such till his voluntarily retirement from service. According to the petitioner, while he was serving under 4th APTF, Bn H.Q. Howly , Barpeta, he has developed some serious ailments, and was not in a position to discharge his duties as per the expectation of the superior officer. This prompt ed him to apply for voluntary retirement by his application dated 25.10.2000 bef ore the respondent No. 4. The case of the petitioner is that having been appoint ed w.e.f. 29.9.1980, he had already completed 20 years 1 month and 11 days of se rvice as on 25.10.2000. His application was received by the respondent No. 4, wh o by his letter dated 31.10.2000 gave him 60 days time for reconsideration about his voluntary retirement or for withdrawal of his application. As he did not wi sh to continue in service, the respondent No. 4 finally by the order dated 26.4. 2001 accepted his application for his voluntary retirement in the interest of pu blic service w.e.f. 30.10.2000 and also issued a clearance certificate about his voluntary retirement of the petitioner on the same date i.e. on 26.4.2001. Foll owing his voluntary retirement, the petitioner promptly submitted the requisite papers for processing his pensionary benefits. When the pensionary benefits of t he petitioner were not released to him even after inordinate delay, he was compe lled to file this writ petition for an appropriate direction. It is the case of the petitioner is that at the time of taking voluntary retirement, he had comple ted the qualifying service of 20 years and, therefore, was entitled to the pensi onary benefit permissible under the Rules.
Legal Reasoning
Opposing the writ petition, the learned State counsel for the respondent No. 4 f iled their affidavit-in-opposition. The Accountant General is, however, yet to f ile the affidavit-in-opposition. As the writ petition is of 2006, no further tim e could be granted to the Accountant General. However, Mr. C Baruah, learned sta nding counsel for the Accountant General, on instruction, submits that as the pe nsion papers have not been received by the Office, the same could not be process ed. The stance taken by the learned Stare-respondents is that even though the pe titioner was allowed to take voluntary retirement on his request, when he had no t completed the qualifying service for pensionary benefit at the time of his ret irement, the question of granting such benefits cannot arise. The learned state counsel contends that there was a break-in-service for 9 months and 19 days for his unauthorized absence from duty, which were never regularized and that after deducting the period of his unauthorized absence from duty, he did not complete 20 years of service: he had by then completed only 19 years, 3 months and 21 da ys of service, which, in the absence of regularization of such break-in-service, falls far short of the qualifying service of 20 years. The learned state counse l, therefore, contends that as the petitioner did not have the qualifying servic e of 20 years when he took the voluntary retirement, he cannot claim pensionary benefits and that as there is no merit in this writ petition, the same is liable to be dismissed. Mr. A Matin, learned counsel for the petitioner submits that once the notice of voluntary retirement of the petitioner has been accepted by the respondent autho rity by retiring him from service, they cannot now contend that he had not compl eted the qualifying service for availing of pensionary benefits. According to th e learned counsel for the petitioner, by allowing him to voluntary retire from s ervice in accordance with FR 56 (c), the petitioner was deemed to have completed the qualifying service of 20 years for all purposes including pension benefits. Had he not completed 20 years of qualifying service, he argues, how could the S tate-respondent allow him to take voluntary retirement from service? The State-r espondents ought not to have accepted the letter of voluntary retirement submitt ed by the petitioner if he had not completed 20 years of qualifying service. It at the time of applying voluntary retirement, had the petitioner been informed t hat he had not completed the qualifying service and was, as such, not allowed to enjoy pension benefits even if he took voluntary retirement, it is quite possib le that the petitioner might have withdrawn his notice of voluntary retirement. Moreover, there can be no two qualifying services for voluntary retirement: one for the purpose of acceptance of notice of voluntary retirement and the other fo r pension benefits. The rules regulating the procedure for seeking voluntary ret irement for Government service is provided for in F.R. 56 (c) of the Fundamental Rules and Subsidiary Rules which is as follows: (cid:28)(b) Notwithstanding anything contained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire a government servant by giving him notice of not less than three months in writ ing or three months’ pay and allowances in lieu of such notice after he has atta ined fifty years of age or has completed 25 years of service, whichever is earli er. (c) Any Government servant may, by giving notice of not less than three months i n writing to the appropriate authority, retire from, service after he has attain ed the age of fifty years or has completed 25 years of service, whichever is ear lier. (cid:29) As already noticed, the qualifying service of 25 years of service has now been m odified by the State Government in their Office Memorandum dated 12.9.1984, whic h is at Annexure A to their affidavit in opposition. As per this modification, t he qualifying years has been reduced to 20 years from 25 years. The petitioner w as initially appointed as constable on 29.9.1980 and the notice for voluntary re tirement was issued by him on 25.10.2000 as is evident from annexure-1 to the wr it petition. Therefore, when the petitioner had sought for voluntary retirement, he had completed not less than 21 years 1 month and 11 days. This was probably the reason for not raising any objection by the State-respondents against the no tice of voluntary retirement. Had the issue of break-in-service been raised by t he State-respondent when the petitioner submitted the notice of voluntary retire ment, the petitioner might have even withdrawn the same for fear of forfeiting h is pension benefits. Moreover, if the petitioner had not completed 20 years of s ervice at that time, he would not have been eligible for seeking voluntary retir ement, and it would have been illegal on the part of the State-respondents to ac cept the notice of voluntary retirement. In this connection, it will be instruct ive to refer to the decision of the Government of India regarding verification o f service prior to requiring a Government servant to retire contained in G.I, M. F., O.M. No. F.12 (8)-E.V(A)/60 dated 6.7.1960 reproduced by Swamy’s Pension Com pilation, 19th Edn., which reads thus: (cid:28)(1) Verification of service prior to requiring a Government servant to retire.- Cases have come to the notice of the Government of India in which certain Gover nment servants were required by the administrative authorities to retire from Go vernment service on the assumption that they had completed 30 years’ qualifying service. The assumption eventually proved wrong on actual verification and the q ualifying service was found to be less than the period assumed. Such retirements are irregular in terms of these rules apart from the difficulties they give ris e to. With a view to obviating such difficulties in future, orders requiring a Government servant to retire after completing thirty years’ qualifying service s hould, as a rule not be issued until after the fact that the officer has indeed completed qualifying service for thirty years has been verified in consultation with the Account Officer. (cid:29) Though the aforesaid decision was taken by the Government of India in the contex t of normal retirement, in my judgment, this salutary principle should have been followed by the State-respondents at the time of considering the request of the petitioner for voluntary retirement: unnecessary complications have resulted fr om such omission. After all, it is the State-respondents, who are the custodian of the service records of the petitioner, who ought to have verified as to wheth er the petitioner had the qualifying service when he had requested voluntary ret irement. Under the circumstances, any break-in-service in the service of the pet itioner is deemed to have been condoned. Moreover, in my considered view, the St ate-respondents are now barred by the principle of estoppel from claiming that t he petitioner did not complete the qualifying service of 20 years and is, theref ore, not entitled to pension benefits. It may also be noticed that the applicati on filed by the petitioner on 18-7-2005 for allowing him to resume duty was reje cted by the respondent No. 4 vide his letter dated 29.8.2005 (Annexure-6). Havin g failed to release his pensionary benefits, the respondent authorities ought to have allowed the petitioner to resume duty if he had not completed the qualifyi ng service: he is now left in lurch. In the view that I have taken, the contenti on of the State-respondents that the petitioner did not have qualifying service of 20 years for purpose of pensionary benefits has no legs to stand upon and is, therefore, untenable in law. This act of commission or omission of the part of the State-respondents also suffers from the vice of non-application of mind or a rbitrariness. For what has been stated in the foregoing, this writ petition succeeds. The Stat e-respondents are accordingly directed to process the pension papers of the peti tioner without further delay for payment of his pensionary benefits inclusive of GIS, Leave salary, Provisional Pension etc. with interest of at the rate of 12% per annum w.e.f. 30.10.2000 till they are paid within period of 3 months from r eceipt of this order. On receipt of the pension papers from the State-respondent , the Accountant General, Assam shall process the pension papers and complete th e same within a period of one month for payment to the petitioner. No costs.