Smt. G.Chamundeswari v. 1. The State of Telangana

Counsel for the Petitioner: SRI S.JAGADISH counsel for the Respondent Nos.1 & 3: sRl M.suMAN, Gp FoR sERVIcES-lr Counsel for the Respondent Nos.2 & 4: SRI A.RAGHURAM, AGp FOR SERVtCES (AP) The Court made the foltowing: ORDER , T E HO N'B E rlu TIC EP .sAMK s Y TH E LE R AND CE NA ONAN DIKONDA w P N 9 f 2 ORDEi: (per the Hon'bte sri l stice P'Sam Koshv) Theinstantwritpetitionhasbeenfiledaggrievedbytheaction on the part of the respondent-authorities in not granting the pensionary benefits to the petitioner and also to declare the said action to be arbitrary and in violation of the fundamental rights guaranteed under the Constitution of India' 2. Heard Mr. S' Jagadish' learned counsel for the petitioner; Mr.M.Suman,learnedGovernmentPleaderforServices-Ilappearing on behalf of respondent Nos'1 and 3' and Mr' A' Raghuram' learned Assistant Government Pleader for the State of A'P' appearing on behalf of resPondent Nos'2 and 4' 3. The Petitioner herein was appointed as a Women Welfare Organizer in the Women and Child Welfare Department way back on 24.Og.1g7g.In due course of time' she was promoted to the post of Supervisor in the year 1985, and later she was also promoted as a Child Development Project Officer / Asst' Project Officer in the Year

2007. Meanwhire, the hearth condition of the petitioner got deteriorated on account of some ailment and because of her hearth condition she had to avair medicar reave at regurar intorvars. Since it became difficurt for her to discharge her duties, on 05.05.200g she moved an apprir:ation before the controiling authority seeking permission to retire from service voruntariry w.e.f. 31.0g.200g. since she had appried for voruntary retirement w.e.f. 31.0g.:200g, she did not report for duty'thereafter awaiting decision on her,apprication for voluntary retirement. 4- Undoubtedry, when the petitioner had moved the apprication for voruntary retirement, she was posted at Kurnoor District of unified state of A.p. The said District stiil fails within the territories of the present State of A.p. The authority concerned did not take any steps for setflement of hr:r dues in terms of the voruntary retirement that she had sought for. The petitioner had been repeatedry c'rresponding with the respondent-authorities, but none of the correspondences gave any positive result.

5. Meanwhile, on papers, upon bifurcation of the two States in accordance with the A.p. Reorganization Act,2074 the petitioner was refrected to be ailocated to the State of Terangana. since on papers, 7 I she stood allocated to the State of Telangana' the authorities in the State of A.P. took a stand that as she is no longer an employee of the state of A.P., no action and no relief can be granted or undertaken by the State of A.P. so far as the claim of the petitioner for pension- and pensionarY benefits'

6.Itisthisactiononthepartoftherespondent-authoritiesWhich has compelled the petitioner to approach this Court invoking writ jurisdiction and seeking for a direction to the respondent-authorities for granting the pension and pensionary benefits upon the petitioner having availed the voluntary retirement'

7. Some of the admitted factual matrix of the present case' which has not been disputed, denied or rebutted by the learned counsel appearing for either of the State Government are as under: a) The appointment of the petitioner as a Woman Welfare Organizer on 24.O9.1979:, b) The petitioner was promoted as Supervisor in the year 1985 and further promoted to the post of Child Development Project Officer/ Asst. Project Officer on 13'07'2001; c) The petitioner on health grounds moved an ,rpplication for voluntary retirement on 05.05.200g and prayed to relieve her from service w.e.f. 31.08.2008; d) when the petitioner had submitted her voruntary retiiement application, she was posted at Kurnool District which is an area still falling within the territories of the residuary State of A.p.; e) Lastly, the petitioner had tendered her apprication seeking voluntary retirement rong before bifurcation of the two states under the A. P. Reorganization Act, 2074. In the light of the aforesaid admitted factuar matri): of the case, 8 what is to be now considered is the effect of the apprication for voluntary retirement tendered by the petitioner? 9' The apprication for voruntary retirement is one which was tendered by the petitioner under the then prevairing A.p. State Revised Pension Rules, 1980 (for convenience, hereinafter referred to as 'Pension Rures') and the Rure which appries for voruntary retirement as per the said pension Rures is Rure 43. The rerevant portion of Rure 43 for ready reference is being reproduced hereunder, viz., 1 "43. Retirement on completion of 20 years of qualify'ng service:-(1) A Government servant shall have the option to retire from service voluntarily after he has put in not less than twenty years of qualifying service: Provided that he gives a notice ln writing of his intention to retire voluntarily of at least three months to the authority which has power to make a substantive appointnient to the post from which he retires: Provided further that a notice of the less than three months may also be accepted by the competent authority' xxxxxxx xx (2) A Government servant retiring under sub-rule (1) shall be entitled to a retiring Pension : Provided that such retiring pension shall be subject to the provisions of the Rules 8 and 9. (3) Where a Government servant opts to retire under sub-rule iriwfrife on leave not due, the retirement in such cases shall iake effect from the date when the leave not due commenced and the employee shall refund the leave salary paid in respect of such leave not due availed of by the employee' (4) A Government servant opting for retirement under sub-rule ir;,rnutt not retire unless the notice given by him as per proviso to sub-rule (1) is accepted by the competent authority: Provided that the competent authority shall issue an order before the expiry of the notice period accepting or rejecting the notice; "

10. In the instant case, the relevant provision which would apply is Sub-Rule (4) and the proviso to the said Sub-Rule' A plain reading of Sub-Rule (4) would give an indication that upon an application being made, the competent authority has to accept the same' and unless it is accepted/ the employee cannot be considered to have retired. However, the raw makers have arso added a proviso crause to the said provision, which mandates the competent authority to take a decision on the said application filed by the employee either accepting or rejecting the same' This proviso to sub-Rure makes it rnandatory for the competent ar_rthority to take a decision on the application for voluntary retirement. 11' Now the second question that comes up for consideration is, in the event if the competent authority does not take a decisidn and the notice period arso expires, whether the emproyee can sti, be compered to discharge the duties? In other words, whether the emproyee wourd sti' be on the ro's of the employer or whether the emproyee wi, be deemed to have voruntariry retired from service in accordance with the application which she had made?

12. In the opinion of this court, once when the rule nrakers have added a mandatory provision by way of a proviso, therer can be no other inference drawn other than the fact that, in the event, if the competent authority having not taken a decision on the apprication for voruntary retiremenr either accepting or rejecting it, it wi, amount to deemed acceptance and the emproyee wi, be deemed to have retirecr ,) from service voluntarily with effect from the notified date in the application.

13. In terms of the admitted factual matrix as is narrated in the preceding paragraphs, the petitioner applied for voluntary retirement on 05.05.2008 with a three months, notice period, of her Standing to retire from service voluntarily w.e.f. 31.08'2008' Thereafter, she has not reported for duty. During this period, she was posted in Kurnool District which now falls within the territories of the state of A.P. The competent authority had not taken a decision on her application either accepting or rejecting it and, therefore, as a consequence of the inaction on the part of the competent authority to take a decision on the application for voluntary retirement submitted by the petitioner on

05.05.200s,forallpracticalpurposesaspertheprovisoclausetoSub- Rule (4) of Rule 43 of the Pension Rules it has to be considered that she is deemed to have retired from service w'e'f' 31'08'2008' L4. The Counter-Affidavit filed by the residuary State of A'P' as also by the State of Telangana would show conflicting and contradictory stand being taken by both. The State of A'P' has taken a stand that since there was no acceptance of the application for voluntary retirement, the petitioner would continue to remain on the rolls of the Telangana and she also remained unauthorizedly absent from duty and in due course of' time after the two states were bifurcated, the petitioner was allocated to the state of Telangana. Since the petitioner was allocated to the State of Telangana she would no longer be. in the rolls of the state of A.P. and any further liability that would arise has to be made by the State of Telangana alone.

15. Likewise, the State of Terangana arso took a simirar stand contending that though the petitioner having been alhrcated to the state of relangana, she has not reported for duty or joined the duty in the state of relangana and unless she assumes the dr.rty and takes charge, she cannot be accepted to be an employee of the state of Telangana. According to the state of Telangana, the petitioner was working in Kurnool District in the State of A.p., and unlr:ss she upon allocation joins in the state of Telangana, cannot be con:;idered to be an employee of. the state of Telangana. Nonetheless, for the reason there was an unauthorized absence, the state of Telangara did initiate disciplinary proceedings on the charge of inordinate r:nauthorized absence. However, subsequently on the ground that she has notjoined in the state of rerangana, the entire disciprinary proceedings were dropped. Thus, the state of Terangana arso refused or accepted the liability. --./. t !l I )

16. In the given factual scenario, what needs to be considered is; as to which State would have the liability for payment of pension in the event if the writ petition is to be allowed? L7. In the given factual matrix narrated in the preceding paragraphs, the relevant period is 05.05.2008 to 31'08'2008' During this period' thepetitionerwasworkingatKurnoolDistrict.Thesaidplacenowfalls under the State of A.P. The petitioner had tendered her voluntary resignatlon on 05.05.2008, but no decision was taken on the said application which was to become effective w'e'f' 31'08'2008 i'e' three months'notice period that was granted' In the said admitted facts' in theeventiftheapplicationforvoluntaryretirementisnotconsidered, it would deemed to have been accepted' Then there can be no doubt whatsoever of the law and liability for grant of pension and pensionary benefits falling upon the State of A'P' It is only if this Bench reaches to the conclusion that non-acceptance of the voluntary retirement would not have a deeming fiction and the concerned employee would remain on the rolls of the employer, and thereafter being allocated to the StateofTelangana,wouldshifttheliabilityfromtheStateofA.P.to the State of Telangana ' - - "a T

18. Now so far as the legal position of non_acceptance of the application for voluntary retirement is concerned, we have already reproduced the statutory provision i.e. Sub_Rule (4) of r{ule 43 of the Pension Rules earrier in this order which mandatoriry requires the competent authority to take a decision on the apprication, both for accepting or rejecling the same. The very fact that there is a mandate in the Rule for taking a decision, either ways it has to br,r inferred and presumed that in the event of the competent authority not taking a decision, it wourd amount to deemed acceptance of the apprication. 19' One of the earrier decisions on this subject is the judgment of the Hon',ble Supreme court in the case of Dinesh chandra sangma vs. State of Assam and Othersl wherein in paragraph No.il it has been held as under: "8. As is well known government servants hold office dur ng the pleasure of the President or the Governor, as the case nray be, under Article ji10 of the Constitution. However, the pleasure doctrine under Article 310 is limited by Article 311(2). It s clear that the services of a permanent Government servant carnot be terminated except in accordance with the rures made under Article 309 subject to Article 3tt(2) ot the Constirution a 1d the Fundamental F ights. It is also well_setfled that even a temporary government servant or a probationer cannot be dismis:,;ed or removed or recuced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked b,y the Government in the public interest after a government s(trvant t 1197714 Sup.eme Couat Cases 441 ,1 PaBe 13 of 18 attains the age of 50 years or has completed 25 years of service'' This is constitutiona lly permissible as compulsory termination of serviceunderFundamentalRule56(b)doesnotamountto removal or dismissal by way of punishment' While the Governmentreservesitsrighttocompulsorilyretirea government servant, even against his 'wish' there is a Iorresponding right of the government servant under Fundamental Rule 56(c) to voluntarily retire from service by givlng the Government three months' notice in writing' There is io question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right under Fundamental Right 56(c)"' 2f,. The said analogy was subsequently also reiterated by the Hon'ble Supreme Court in the case of State of Haryana and Others vs' S-K' Singhalz wherein in paragraph Nos'9 and 13' it has beeh held as under: "9. The employment of government servants is governed by rules. These rules provide a particular age as the age of superannuation. Nonetheless, the rules confer a right on the Government to compulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has completed a particular number of years of qualifying sJrvice in case it is found that his service has not been found to besatisfactory.Therulesalsoprovidethatanemployeewhohas lhe said number of vears in hls ase or who has ;;;ili"; .o-pr"."atheprescribednumberofyearsofqualifyingservice could give notice of, say, three months that he would voluntarily ."tir" in the expiry of the said period of three months' Some .rLt ur" couched in language which results in an automatic reti."meot of the emplol"" ,pon the expiry of the period specified in the employeeis notice' On the other hand' certain rules in some other departments are couched in language which makesitclearthatevenuponexpiryoftheperiodSpecifiedinthe notice, the retirement is not automatic and an express order '1t9991 + srpreme court cases 293 granting perrnission is required and has to be communi(:ated. The relationship lF master and servant in the latter typ€, of rules continues after the period specified in the notice till such acceptance 's communicated; refusar of permission couid arso be communicated after 3 months and the employee continrres to be in service. Cases like Dinesh Chandra Sangma v. State of Assam [(19 tt ,t) 4 SCC 447 : tg78 SCC irasl 7l , 8.J.. 2let:tv State of GujarattGgTB) 2 sCC 2o2, isze S,:C llaS; 20Bl and lJnion of India v. Sayed Muzaffar Mir 11995 Supp (ri SCC 76 : 1995 SCC (L&S) 2561 belong to the former category where it is held that upon the expiry of the period, the ,,,oluniary retirement takes effect automatically as no order of refusal is passed withirr the notice period. On the other hand H.p. Horticultural produce Marketing & processing Corpn. Ltd. v. Suman Behari Sharma [(1996) 4 SCC 584 : 1f,r96 SCC (L&S) 10561 belongs to the second category where the:rye_laws were interpreted as not giving an option ..to retire,, DUt only provided a linrited right to "seek,, retirement thereby imp,ying the need for a consent of the employer even iF the periocl of the notice has elapsed. We shall refer to these two categories in some deta il.

13. Thus, fro rr the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh chandril sangma case by the rerevant rures and r:here is no provision in the rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice...,. 21' The aforesaid two judgments in very categoricar terrns confers a right upon an emproyee to decide whether the emproyee wishes to voluntariry retire from service and if the emproyee opts to retire voruntariry, unress there is a specific embargo under certail Conditions when it courd be refused, there is no reason why the emproyee cannot F r optforVoluntaryretirement.Theaforesaidprincipleslaiddownisalso found to have been followed by the Hon'ble Supreme Court again in the case of Union of India & Others vs. Sayed Muzaffar Mir3 wherein in paragraph Nos.4 and 5 it was held as under:. "4. There are two answers to this submission' The first is that both the provisions relied upon by the learned counsel would require, according to us, passlng of appropriate order' when the government servant is under suspension (as was the Iespondent), either of withholding permission to retire or retaining oi the incumbent in service' It is an admitted fact that nosuchorderhadbeenpassedinthepresentcaseSo'despite the right given to the appropriate/co mpetent authority in this ,.guri, the same is of no avail in the present case as the right haO not come to be exercised' We do not know the reason(s) thereof. May be, for some reason the authority concerned thouqht thatitWouldbebettertoseeofftherespondentbyallowinghim to retire. 5.The second aspect of the matter is that lt has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v' State of Arrurn, which has dealt with a parimateria provision finding place in Rule 56(c) of the Fundamental Rules' that where the government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period' This decision was followed by another three-.ludge Bench in B'l' Shelat v' State of Gujarat'" Inthesaiddecision,theHon'blesupremecourtrelieduponits own decision in the case of B'J' Shelat v' State of Gujarat4' 3 t(1978) 1995 Supp (1) Supreme Court Cases 75 2 Supreme Court Cases202 f'

22. From the aforesaid judicial precedents in the pasl . what is culled is that upon a Government servant giving notice of voluntary retirement, the competent authority is expected to takr: a decision by either allowing or rejecting the application within bhe notice period of three months' In the event of the competent authorit,r not taking a decision, there can be no other inference or presumptio. that courd be drawn of the voruntary retirement automaticary coming into force from the period mentioned in the application submitted by the employee. The right to appry for voruntary retirement conferred undt-.r the pension Rures upon an emproyee opting for the same with crea.r;hree months, notice and if the r:mployer / competent authority does not reject the apprication within three months, it is deemed acceptance. This in other words means that the competent authority has to pass a r;pecific order refusing permission from voruntary retirement, that too hefore expiry of the notice period; erse the retirement .becomes effective from the date of expiry of the period mentioned in the notice given by the employee. As a c.nsequence, the employee,s relationship with the employer also automatically comes to an end on the notice period. 23' In the aForesaicr judicial precedents and the principres raid down therein, and considering the Same in the teeth of the provisions of Sub-Rule @) of Rute 43 of the pension Rules, this Bench has no 7 Page 17 of 1E hesitation in reaching to the conclusion that non-acceptance of the voluntary retirement submitted by the petitioner w'e'f' 05'05'2008 would result in deemed acceptance w'e'f' 31'08'2008' The instant writ petition therefore deserves to be allowed for the said reason'

24. As a consequence, it is ordered that the petitioner shall be deemed to have voluntarily retired w'e'f' 31'08'2008 and is entitled for all consequential pension and pensionary benefits which she would have been otherwise entitled as on 31'08'2008' However' in the event of the Petitioner going on leave after exhausting all the leaves that were there to her credit, the pensionary benefits and the effective date ofvoluntaryretirementwouldbeinaccordancewiththeprovisionsof Sub-Rule (4) of Rule 43 of the Pension Rules' which prescribes the situation where the employee retires while on leave' It is further ordered that the petitioner shall be entitled for all consequential benefits including arrears of pension from the date of voluntary retirementbecomingeffective.Theliability,ashasbeendiscussed earlier falls only upon the State of A'P'' as on this date the new State had not been carved out and that the petitioner was working in the territories which even as on this date is within the State of A'P' i'e' KurnoolDistrict.Lettheentirearrearsofpension'becalculatedand ( I I processed within an outer limit of four (04) months and further pension also be reqularly paid. 25- we are conscious of the fact that the petitioner has been denied the benefits of retirement unnecessarily for a long time br:cause cif the developments that took place in between. We are not imposing interest on the arrears of pension. Nonetheless, if the state of A.p. fails to clear the arrears of pension and other benefits within a period of four (04) months as directed, the entire pensionary be:nefits would carry interest at the rate of 7o/o.

26. Accordingly, the writ petition stands allowed in the afore given terms.

27. As a sequel, miscellaneous petitions pending if any, shall stand closed. However, there shall be no order as to costs. //TRUE COPY// SD/. T. TIRUMALA DEVI REGISTRAR PprY D E \, '\\-- SECTION OFFICER One Fair Copy to the Hon'ble Sri Justice P.SAM KOSHY (For His Lordships Kind Perusal) AND One Fair Copy to the Hon'ble Sri Justice NARSING RAO NANDIKONDA (For His Lordships Kind Perusal) To Secretariat, Hyderabad, State of Telangana.

1. The Principal Secretary, Women Development and Child Welfare l)epartment, 2. The Principal Secretary, Women Development and Child Welfare l)epartment, Secretariat, Velagaoudi, Guntur District, Andhra Pradesh, State of Andhra Pradesh. 3. The Commissioner '/Vomen Development and Child Welfare Department, 4. The Commissioner \/Vomen Development and Child Welfare Depui rtment, 5. 11 LR Copies. Jampani Towers, Amaravathi Road, Guntur-522006 Vengalrao Nagar Ameerpet, Hyderabad. v: 7 E

6. The Under Secretary, Union of lndia Ministry of Law, Justice and Company Affairs, New Delhi.

7. The Secretary, Telangana Advocates Association Library, High Court Buildings, Hyderabad.

8. One CC to SRI S.JAGADISH, Advocate [OPUC] 9. Two CCs to GP FOR SERVICES-Il, High Court for the State of Telangana, at

10. Two CCs to GP FOR SERVICES, Andhra Pradesh High Court, at Amaravathi Hyderabad. [OUT] louTl

11. Two CD Copies PSK. ^GJP \tr HIGH COURT DATED:2 4103t2025 \ ORDER WP.No.19299 of 2023 ( ?5 (J ilE :' ' \re o' , Z c) ,+ 10 A7l 2025 t {)cq:- r r.. ,,aCO a ALLOWING THE WRIT PETITION WTHOUT COSTS fA v\ 1 q