CoramThe Honourable Mr v. The Principal

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 5-7-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.15066 of 2006V.S.Subbarayan...PetitionerVs.1.The Principal,Government Arts College (Men),Krishnagiri, Dharmapuri District.2.The Commissioner,Collegiate Education,Madras - 6....RespondentsThis writ petition came to be numbered under Article 226 ofConstitution of India, by way of transfer of O.A.No.735 of 1995 from thefile of the Tamil Nadu Administrative Tribunal, with a prayer to call forthe records of the respondents 1 and 2 in R.C.No.2064/B/93 dated 8.7.1994and Na.Ka.No.15599/Aa3/94, dated 17.11.1994 respectively, quash the sameand direct the respondents to allow the petitioner to retire from serviceon 30.6.1994 and to pay all the retirement benefits with cost within thestipulated time as directed by the Tribunal.For Petitioner:Mr.P.V.BakthavatchalamFor Respondents:Mr.I.Paranthaman,Addl.Govt. PleaderO R D E RPetitioner seeks to quash the order of the respondents 1 and 2 dated8.7.1994 and 17.11.1994 respectively and to direct the respondents toallow the petitioner to retire from service on 30.6.1994 and to pay allthe retirement benefits with cost within stipulated time.2.The brief facts necessary for disposal of the writ petition areas follows. https://hcservices.ecourts.gov.in/hcservices/ (a)Petitioner was appointed as Lab Assistant in the in theGovernment Arts College (Men), Krishnagiri, in the year 1964 andsubsequently he was promoted as Junior Assistant in the same College. Atthe time when he filed the original application he had put in more than 30years of unblemished service.(b)On 17.9.1993, petitioner proceeded on earned leave initially forthree months and thereafter applied for unearned leave upto 30.6.1994.During leave period, he sent a letter of voluntary retirement on 9.3.1994.Till then his leave was neither sanctioned nor rejected. On 22.3.1994first respondent sent a reply stating that the petitioner having appliedfor unearned leave upto 30.6.1994, three months notice period forvoluntary retirement could be calculated only from 1.7.1994 and on thatdate petitioner should join duty and apply for earned leave for threemonths. Petitioner sent a reply on 24.3.1994 and stated that the noticeperiod may be taken from 9.3.1994 to 9.6.1994 and permit him to go onvoluntary retirement from 9.6.1994.(c)On 17.3.1994 the second respondent called for records from thefirst respondent and on 14.6.1994 directed the first respondent to takeaction on the request of the petitioner as he is the appointing authority,empowered to consider the voluntary retirement request. The firstrespondent failed to pass any order and instead sent a letter on 1.7.1994stating that the petitioner has to give three months notice after joiningduty and he shall be eligible to get full pay during the notice period.Petitioner sent a reply on 5.7.1994 to the first respondent and on8.7.1994 the first respondent rejected the request for voluntaryretirement and directed the petitioner to apply for reposting to thesecond respondent as there is no vacancy in the first respondent college. (d)Petitioner filed an appeal to the second respondent on 20.8.1994and the second respondent rejected the appeal on 17.11.1990 by statingthat as per the Government letter No.73081/FR3/91-7/P&AR dated 25.9.1992request of the petitioner cannot be complied with and therefore thepetitioner challenged the order rejecting the request for voluntaryretirement and for consequential relief.(e)The said orders are challenged on the ground that the firstrespondent failed to pass any order on the request made by the petitionerseeking voluntary retirement before the date of expiry of three monthsnotice period and the petitioner is deemed to be retired from service andthe Government letter referred above dated 25.9.1992 cannot be relied onas it is contrary to FR.56. It is further contended in the affidavit thatthe object behind permitting the Government servant to go on voluntaryretirement is to enable the unemployed to get employment without waitingfor normal retirement and the said object is defeated by the action of therespondents. https://hcservices.ecourts.gov.in/hcservices/

3.The second respondent filed counter affidavit before theTribunal wherein it is stated that while on leave, petitioner applied forVoluntary retirement and as the said request was not in normal format, hewas informed by the first respondent on 22.3.1994 that he should tenderthree months notice and during that notice period he should either be inservice or on leave with full pay. The petitioner having failed to complywith those conditions, the first respondent requested the secondrespondent to take appropriate action as per the rules and taking note ofthe Government letter dated 25.9.1992, petitioner's request for voluntaryretirement was not accepted and a communication was sent to the petitioneron 1.7.1994 by the first respondent.4.The learned counsel for the petitioner submitted that as perFR.56, the Government Servants are entitled to go on voluntary retirementon their attaining the age of 50, or who has completed 20 years ofqualifying service by giving not less than three months notice in writingand the petitioner having been in service from 1964, he has completedabout 30 years of service and he has also completed more than 50 years ofage. The learned counsel further submitted that FR.56(e)(i)to(v) is therule governing acceptance of voluntary retirement request. Learnedcounsel relying on the said rule submitted that nowhere in the rule it isstated that the person seeking voluntary retirement should be actually inservice and not on leave while submitting the notice for voluntaryretirement. Reliance made by the second respondent about the GovernmentLetter is unsustainable in view of the statutory provision contained inFR.56, which deals with submission of voluntary retirement request and themanner in which it has to be processed, grounds on which it can berejected and also deals with deemed acceptance. The learned counsel alsosubmitted that the voluntary retirement request having been made by thepetitioner on 9.3.1994, three months notice period expired on 9.6.1994 andif the same is not rejected within three months, the request is deemed tohave been accepted under FR.56(f). The rejection order passed in thiscase is admittedly after 9.6.1994, after expiry of the notice period andtherefore the said order is a nullity, as the petitioner is deemed to beretired from service voluntarily as on 9.6.1994 itself by operation oflaw. The learned counsel further submitted that the first respondentthrough his proceedings Na.Ka.No.2064/B/93, dated 14.10.2005 passedremoval order against the petitioner subject to the result of the saidO.A.No.735 of 1995, which is transferred and numbered as the above writpetition. Hence according to the learned counsel for the petitioner, thepetitioner's removal from service is valid or not will depend upon theultimate decision to be rendered in this case.5.The learned counsel for the respondents submitted that since thepetitioner was on leave, he is not entitled to submit request forvoluntary retirement and only after his joining duty, he can apply for https://hcservices.ecourts.gov.in/hcservices/ voluntary retirement and even after rejecting the request, petitioner hasnot reported to duty and therefore 17(b) charges were framed against thepetitioner for his unauthorised absence and after enquiry, he wasterminated from service subject to the result of this writ petition.6.I have considered the rival submissions made by the learnedcounsel for the petitioner as well as the learned Additional GovernmentPleader.7.The point in issue is whether the petitioner is entitled tosubmit his request for voluntary retirement on 9.3.1994 while he was onleave, requesting to relieve him from 9.6.1994 and whether the non-communication of rejection of request of the petitioner before the expiryof three months notice period can be treated as deemed acceptance ofvoluntary retirement and whether the respondents are justified in relyingon the Government letter dated 25.9.1992 when there is statutory provisionin FR.56 to decide the issue ?8.The facts in this case are not in dispute i.e, petitionerapplied for voluntary retirement on 9.3.1994 while he was on leave.Petitioner completed more than 20 years of service and also 50 years ofage on the date when he submitted his application for voluntaryretirement. The rule applicable to submit voluntary retirement is FR.56(3). The said rule nowhere states that if a person is on leave, he is notentitled to submit application for voluntary retirement and only afterjoining in the post, he can submit his application. FR.56(3) is extractedhereunder for proper appreciation."56(3) Voluntary Retirement.- (a) A Government servant who has attained the ageof fifty-years or who has completed twenty years ofqualifying service may retire from service by givingnotice of not less than three months in writing directto the appointing authority with a copy marked to hisimmediate superior officer for information. Beforegiving such notice, he may satisfy himself by means ofa reference to such authority that he has completed therequired number of years of qualifying service.(b)The period of three months notice shall bereckoned from the date of receipt of notice by theappointing authority.(c)The three months notice may be given beforethe Government servant attains the qualifying age orthe qualifying service, as the case may be, providedthat the retirement takes place after attaining thespecified age or completing the required number ofyears of qualifying service, as the case may be. https://hcservices.ecourts.gov.in/hcservices/ (d)(i) A Government servant including a Governmentservant in the Tamil Nadu Basic Service retiringVoluntarily shall be given a weightage not exceedingfive years, subject to the condition that the totalqualifying service rendered by such Government servant,including weightage, does not in any case exceed Thirtyyears of qualifying service and it does not take himbeyond the date of superannuation, as the case may be.(ii)The weightage given shall be in addition tothe qualifying service for purposes of pension andgratuity only, and it shall not entitle a Governmentservant retiring voluntarily to any notional fixationof pay or purposes of calculating the pension andgratuity. The pension shall be determined based on the50% of the average emoluments drawn during the last tenmonths of service rendered, or, 50% of pay last drawn,plus dearness pay, if any, admissible from time totime, by the Government servants, whichever is higher." Reasons for rejection of voluntary retirement are also enumerated in Rule56(e)(i) to (v), which reads thus,"56(e) notice of voluntary retirement given by aGovernment Servant shall be accepted by the appointingauthority, subject to the following conditions beingsatisfied namely:-(i) that no disciplinary proceedings arecontemplated or pending against the Government Servantconcerned for the imposition of a major penalty;(ii)that no prosecution is contemplated orpending in a Court of Law against the Governmentservant concerned;(iii) that a report from the Director ofVigilance and Anti-corruption has been obtained to theeffect that no enquiry is contemplated or pendingagainst the Government servant concerned;(iv)that no dues which cannot be recovered fromhis Death-cum-Retirement Gratuity are pending to berecovered from the Government servant concerned; and(v)that there is no contractual obligation toserve the Government during the period in which theGovernment servant concerned seeks to retirevoluntarily." https://hcservices.ecourts.gov.in/hcservices/ None of the reasons contained in Rule 56(e)(i) to (v) states that arequest for voluntary retirement can be rejected if a person apply for thesame while he is on leave. The effect of not passing order before expiryof notice period is stated in FR.56(f), which reads as follows,"56(f)The appointing authority shall issueorders before the date of expiry of notice eitheraccepting the voluntary retirement or not. Otherwise,the Government servant shall be deemed to have beenretired voluntary from service at the end of the periodof notice:Provided that where a Government servant undersuspension or against whom disciplinary or criminalaction is pending, seeks to retire voluntarily,specific orders of the appointing authority for suchvoluntary retirement is necessary. The appointingauthority may with-hold the permission sought for bythe Government servant, if any of the conditionsspecified in clause (e) are not satisfied."As per Rule 56(f) before the date of expiry of the notice, if no order ispassed accepting or rejecting the request, the Government servant shallbe deemed to have been retired from service at the end of the noticeperiod and as per the proviso, the request can be rejected only on thegrounds stated in FR.56(e)(i) to (v).9.As stated above, in this case, notice period expires on9.6.1994. The rejection order is passed by the respondent only on8.7.1994. The said rejection order is admittedly long after the expiry ofthe notice period of three months. The application submitted by thepetitioner on 9.3.1994 is deemed to be accepted on the last date of noticeperiod i.e., on 9.6.1994. Hence deemed acceptance of voluntary retirementhas taken place from 9.6.1994 and the rejection order passed by therespondents, after expiry of the notice period of three months will haveno effect. Further the reason stated in the impugned order rejecting therequest of voluntary retirement is not the one among the reasons stated inFR.56(e)(i) to (v).10.Similar issue was considered by me in W.P.No.9880 of 2007(Dr.Annabelle Rajaseharan v. The Secretary to Government, Health andFamily Welfare Department, Chennai-9 and two others) by order dated16.4.2007, wherein a voluntary retirement request was rejected for areason not stated in Rule 56(e)(i) to (v). In the said order, I havefollowed the judgment of the Honourable Supreme Court reported in (2001) 3SCC 290 (Tek Chand v. Dile Ram) regarding the deemed acceptance ofvoluntary retirement on the expiry of notice period. In the decisionreported in 2006 (2) CTC 318 (S.M.A.Mohamed Yusoof v. The Secretary,Government of T.N.) also I have considered similar issue. https://hcservices.ecourts.gov.in/hcservices/

11.Since the submission of voluntary retirement application, itsconsideration, its acceptance or rejection and if no order is passed,deemed acceptance is clearly stated in the statutory rule viz., FR.56(3),the respondents are not justified in stating some other reason not statedin the statutory rule and they are not entitled to rely on the Governmentletter dated 25.9.1992, which cannot over ride the statutory rule. Thesaid issue is well settled in the decision of mine reported in 2007 WLR521 (K.Sampath v. The State of Tamil Nadu and others), wherein I havefollowed the decisions of the Honourable Supreme Court reported in AIR1972 SC 1546 (State of Haryana v. Shamsher Jang) and AIR 1967 SC 1910(Sant Ram Sharma v. State of Rajasthan).12.In view of the said statutory provision and having regard to thefact that no order having been passed by the respondents rejecting therequest of the petitioner before expiry of the three months notice period,I hold, the impugned orders are unsustainable and the petitioner shall bedeemed to be voluntarily retired from service from 9.6.1994. Since thepetitioner is deemed to be retired from 9.6.1994, his absence after thesaid date cannot be treated as unauthorised absence and therefore thedisciplinary proceeding initiated against the petitioner under rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and theconsequential order of removal of the petitioner from service are alsounsustainable. Since the first respondent passed the order on 14.10.2005,removing the petitioner from service subject to the result of O.A.No.735of 1995 (this writ petition), the said termination order will not have anyeffect, as this writ petition filed by the petitioner is allowed holdingthat the petitioner shall be treated as deemed to be voluntarily retiredfrom service from 9.6.1994. The respondents are directed to settle theretirement benefits payable to the petitioner treating him as voluntarilyretired from service on 9.6.1994, within a period of three months from thedate of receipt of copy of this order.The writ petition is allowed with the above observations anddirection. No costs.vrSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal,Government Arts College (Men),Krishnagiri, Dharmapuri District.2.The Commissioner, Collegiate Education,Madras - 6.+ One cc to M/s P.V Bakthavatchalam, Advocate SR 40755sg 12/7/07AVM (co)Order in W.P.No.15066 of 2006 5-7-2007