State of Tamil Nadu v. K. Ashok Vardhan Shetty

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.8.2012CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWrit Petition No.8161 of 2012and M.Ps.1 and 2 of 20121.State of Tamil Nadu, represented by the Chief Secretary to Government, Public (Special-A) Department, Secretariat, Fort St.George, Chennai-600009.

Thiru Debendranath Sarangi, IAS, Chief Secretary to Government, Public (Special-A) Department, Secretariat, Fort St.George, Chennai-600009.... PetitionersVs.1.K.Ashok Vardhan Shetty2.Union of India, represented by the Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi.

The Registrar, Central Administrative Tribunal, Madras Bench... Respondents* * *Writ Petition filed under Article 226 of the Constitutionof India, praying to issue a Writ of Certiorari to call for the relevant records relating to the order passed by the CentralAdministrative Tribunal, Madras Bench, Chennai in O.A.No.1567 of2011, dated 27.2.2012, set aside the order of the Tribunal.* * * https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr.N.R.Chandran, Senior Counsel for Mr.S.T.S.Moorthy, Spl.G.P.For R.1: Mr.Vijay Narayanan, Senior Counsel for M/s.Karthik, Mukundan & NeelakantanFor R.2: Mr.M.Ravindran, Addl. Solicitor General of India for Mr.M.Devendran, Sr.C.C.G.* * *

O R D E RELIPE DHARMA RAO, J.The interpretation of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as the Rules), insofar as they deal with Voluntary Retirement of aMember of the All India Services, is the subject matter in this writ petition.2. The first respondent belongs to the 1983 batch ofI.A.S. Officers (Regular Recruit) - Tamil Nadu cadre and joined in the service on 3.9.1983. On 8.9.2011, he has submitted athree months previous notice of Voluntary Retirement to the Chief Secretary of the State Government, invoking Rule 16(2) of the Rules. In the said letter he has submitted that he wish to proceed on Voluntary Retirement for purely personal reasons with effect from the afternoon of 9.12.2011 (Friday). According to him, he has crossed 50 years of age (his date of birth being31.7.1957) and he is eligible to move on voluntary retirement asper Rule 16(2) of the Rules.3. This communication of the first respondent was turned down by the State Government, vide G.O.Rt.No.4059, Public(Special-A) Department, dated 7.12.2011. For better appreciation, the said order of the Government is extractedhereunder: "The Government have carefully examined the notice of Thiru K.Ashok Vardhan Shetty, IAS, to retire voluntarily and prematurely from service on the AfterNoon of 09.12.2011, under sub rule 2A of rule 16 ofAIS (DCRB) Rules, 1958. 2. An enquiry by the concerned investigating https://hcservices.ecourts.gov.in/hcservices/ agency is pending against Thiru K.Ashok VardhanShetty, IAS. 3. In the circumstances, the Government, under Government of India's decision under Rule 16 2(A) ofAIS (DCRB) Rules, 1958, proviso 1(ii) do not accept the notice of voluntary Retirement given by ThiruK.Ashok Vardhan Shetty, IAS, in his letter read above. "

Aggrieved, the first respondent herein has filedO.A.No.1567 of 2011 before the Central Administrative Tribunaland since the Tribunal has allowed the same, the StateGovernment and the Chief Secretary have come forward to file this writ petition.

Mr.N.R.Chandran, learned senior counsel appearing for the petitioners would argue that as per Rule 16(2) of the Rules, two conditions are laid down for voluntary retirement i.e.,completion of 30 years of qualifying service or completion of 50years of age and the first respondent/applicant has completed only 28 years of service and as per the first proviso to Rule 16(2A), acceptance of the offer of voluntary retirement by the State Government is required, if the date of voluntary retirement is earlier than the date on which the member of the service could have retired from service under sub-rule (2) of the Rule 16. It has further been argued on the part of the petitioners that sub-rule (2) of Rule 16 refers to two dates of retirement from service, one the date on which a member of service completes thirty years of qualifying service and the other the date on which a member of service attains fifty years of age. If the date of retirement on the expiry of the period of notice is earlier than the two dates of retirement referred to in sub-rule (2), then the acceptance of the offer of voluntary retirement by the State Government is required. Ithas further been argued by the petitioners that the firstrespondent/applicant has indicated 9.12.2011 as the date on which he wished to retire from service and therefore, the date of voluntary retirement on completion of thirty years of qualifying service in terms of sub-rule (2) falls during 2013and therefore, the requested date of voluntary retirement i.e.9.12.2011 is earlier than the date on which he would retire on completion of thirty years of qualifying service under sub-rule(2) and as such, the acceptance of the offer of voluntary retirement of the first respondent in question by the competent authority is required under the first proviso to sub-rule (2A)and therefore, the claim of the first respondent/applicant that https://hcservices.ecourts.gov.in/hcservices/ he stands voluntarily retired from service w.e.f. 9.12.2011 is not correct as he will complete 30 years of service on 3.9.2013.Therefore, according to the learned senior counsel for the petitioners, the Tribunal has committed a legal error in accepting the claim of the first respondent/applicant and would pray to set aside the order of the Tribunal.

On the contrary, on the part of the firstrespondent/applicant, Mr.Vijayanarayanan, learned senior counsel would argue that it is only Rule 16(2) that is applicable to the case of the first respondent/applicant, but only to deny the due of the applicant, the writ petitioners have applied a wrong provision of law to his case and have ultimately passed an illegal rejection order. The learned senior counsel would further argue that the very wording of Rule 16(2) makes it clear that it is only a 'notice' to the State Government that has been contemplated and not a 'permission' to retire and therefore, when the first respondent/applicant is not under 'suspension',the impugned order passed by the writ petitioners/StateGovernment 'rejecting' the voluntary retirement of the applicantis bad in law.

Mr.M.Ravindran, learned Additional Solicitor General, appearing for Government of India/second respondent would submit that that Rule 16(2A) is not applicable to the case of the firstrespondent/applicant and the legal error committed by the StateGovernment was brought to its notice by the Government of Indiaby its order dated 18.1.2012 , making it clear that the firstrespondent/applicant's case has to be dealt with only under Rule16(2) of the Rules.8. The Regulation of recruitment and the conditions of service of persons appointed to All India Service are governed by the All India Services (Death-cum-Retirement Benefits) Rules,1958, framed by the Central Government, after consultation with the State Governments, in exercise of the powers conferred under Section 3(1) of the All India Service Act, 1951.

While on the part of the writ petitioners/StateGovernment it has been contended that the case of the applicant falls under Rule 16(2A) of the said Rules, on the part of the first respondent/applicant it has been strenuously argued that his case falls squarely within the ambit of Rule 16(2).Therefore, to decide the issue on hand, we shall now extracthereunder both the above provisions. https://hcservices.ecourts.gov.in/hcservices/ "Rule 16(2): A member of the Service may, after giving at least three months’ previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age oron any date thereafter to be specified in the notice: Provided that no member of the Service under suspension shall retire from service except with the specific approval of the Central Government .Provided further that the State Governmentconcerned on a request made by the member of the service may, if satisfied and for reasons to be recorded in writing, relax the period of notice. ""Rule 16(2A): A member of the Service may, after giving three months' previous notice in writing to the State Government concerned, retire from service on the date on which he completes 20 years of qualifying service or any date thereafter to be specified in the notice. Provided that a notice of retirement given bya member of the service shall require acceptance by the Central Government if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2):Provided further that a member of the Service, who is on deputation to a Corporation or company wholly or substantially owned or controlled by the Government or to a body controlled or financed by the Government, shall not be eligible to retire from service under this rule for getting himself permanently absorbed in such Corporation, company or body: Provided also that a member of the Serviceborne on the Cadres of Assam-Meghalaya, Manipur-Tripura, Nagaland and Sikkim may retire from service on the date on which he/she completes 15 years of service. " (emphasis supplied)

A comparative reading of both the above provisions of law, would make it clear that under Rule 16(2), if a member of the Service completes either 30 years of qualifying service or attains fifty years of age or on any date thereafter to be https://hcservices.ecourts.gov.in/hcservices/ specified in the notice, he can opt for voluntary retirement after giving at least three months' previous notice in writing to the State Government. But if such a member is under suspension, he cannot retire from service except with the specific approval of the Central Government. Of course, power to relax the period of notice has been vested under proviso (ii) of Rule 16(2) on the State Government. Likewise, under Rule 16(2A), if a member of the service completes only 20 years of qualifying service, he can retire from the service after giving three months previous notice in writing to the State Governmentconcerned.

Therefore, the case of a member of the Service, who completed either thirty years of qualifying service or attained the age of fifty years, will fall within the ambit of Rule 16(2)and the case of a member of the Service, who completed only 20years of qualifying service will fall within the ambit of Rule16(2A). Under Rule 16(2A), except 20 years of qualifying service, no other age criterion has been mentioned. But under Rule 16(2), not only the cases of members of the Service who have completed either 30 years of qualifying service, but also the members of the Service who have attained the age of 50 years have been covered. The other difference is that while for the members of the Service who fall within the sphere of Rule 16(2),except for the persons who are under suspension, no approval of the Central Government seems to be necessary, for the members who fall within the ambit of Rule 16(2A), acceptance of the Central Government seems to be a must.

Proviso (i) to Rule 16(2A) would make it clear that'a notice of retirement given by a member of the service shall require acceptance by the Central Government if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2)'. It means that ifa person has not put in either thirty years of service or has not attained fifty years of age [as mentioned in Rule 16(2)],then the notice of retirement require acceptance by the CentralGovernment. Therefore, it further follows that if a person satisfies any of the conditions of Rule 16(2) i.e. either completing thirty years of qualifying service or attaining fifty years of age, then the acceptance by the Central Government is not a mandatory. Since Rule 16(2A) deals with persons who have completed only 20 years of qualifying service, this proviso could further be understood to mean that if a person has completed only 20 years of qualifying service, but has not completed fifty years of age, the notice of retirement given by https://hcservices.ecourts.gov.in/hcservices/ such a member shall require acceptance by the CentralGovernment.

In the case on hand, the applicant has completed 28years of service and attained the age of 50 years. Therefore, undoubtedly, his case would fall within the second part of Rule16(2) i.e. completion of fifty years of age. The interpretation sought to be made by the writ petitioners that since the applicant has completed only 20 years of qualifying service and not thirty years of qualifying service and hence, his case falls only within the ambit of Rule 16(2A) cannot be accepted, sinceRule 16(2) is dealing with not only the persons who completed thirty years of service but also the other category of personsi.e. who attained the age of fifty years. This Rule cannot be said to mean that the member of the service should complete thirty years of qualifying service and also should have attained the age of fifty years, since the conjunction used in the provision is not 'and', but 'or'.

As stated earlier, if a member of the Service is under suspension, he shall not retire from service except with the specific approval of the Central Government. But, in the case on hand, the applicant was not under suspension, so as to say that specific approval of the Central Government is needed. In the impugned rejection order, the State Government has made amention that a vigilance 'enquiry' has been contemplated against the first respondent/applicant. It is not at all the case of the writ petitioners/State Government itself that the firstrespondent/applicant is not having any clean record of service. When the first respondent/applicant was not under suspension and when only an enquiry has been contemplated, which was a news and came as a bolt from the blue to the first respondent/applicantthrough the impugned order passed by the State Government, weare not in a position to accept the case of the writpetitioners/State Government that the said 'enquiry' stands as astumbling block to the voluntary retirement of the firstrespondent/applicant. Therefore, we have no hesitation to hold that the writ petitioners have applied a wrong provision of law to the case of the applicant, which has been correctly analysed by the Tribunal.

It is also to be mentioned that when the cadre controlling authority/the Union of India, itself has made it clear that the case of the first respondent/applicant should have been considered only under Rule 16(2) and it seems to haveno objection for allowing the first respondent/applicant to proceed on voluntary retirement, we are unable to appreciate the action adopted on the part of the writ petitioners. https://hcservices.ecourts.gov.in/hcservices/

Though various other grounds have also been urged oneither side, like attributing malafides to the second writpetitioner/Chief Secretary by the first respondent/applicantetc., since from the above discussion it is clear that the StateGovernment has applied a wrong provision of law to the case of the first respondent/applicant, which is very much sufficient to uphold the decision of the Tribunal, we are not dealing with such other aspects. In the result, (i) this writ petition filed by the State Government is dismissed. (ii) The petitioners are directed to pass all consequential orders - treating the first respondent/applicant went onvoluntary retirement w.e.f. 9.12.2011 (AN) - with theconcurrence/approval of the Union of India, wherever it is necessary, to settle all the terminal benefits on the firstrespondent/applicant within eight weeks from the date of receipt of a copy of this order. (iii) For this purpose, we also direct the secondrespondent/Union of India, to avoid unnecessary delays in rendering their concurrence/approval, wherever sought for by the State Government in this regard and render all their cooperation to see that the terminal benefits of the firstrespondent/applicant are settled within the time specified above. No costs. Connected Miscellaneous Petitions are closed. RaoSd/-Deputy Registrar(J)//True Copy//Sub Asst. RegistrarTo1.The Secretary to Union of India, Department of Personnel and Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

2. The Registrar, Central Administrative Tribunal, Madras Bench3.The Chief Secretary to Government, State of Tamil Nadu, Public (Special-A) Department, Secretariat, Fort St.George, Chennai-600009.+ 1 cc to M/s. Karthik, Advocate SR No.51275+ 1 cc to Mr. M. Devendran, Advocate SR No.51576+ 1 cc to Government Pleader, SR No.51894SKD(CO)SR/31.8.2012.Order in W.P.No.8161/2012