V.Chandrasekaran v. Director of Elementary Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.10.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.37681 of 2006(O.A.No.5936 of 1998)V.Chandrasekaran ... PetitionerVs1.Director of Elementary Education, Chennai -6.2.District Elementary Educational Officer, Dharmapuri.3.Additional Assistant Elementary Educational Officer, Uthangarai, Dharmapuri District.... RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of mandamus, to direct the respondents to treatthe period from 6.1.90 to 22.9.98 as duty and confer all thebenefits of salary, annual increment, promotion and all theconsequential benefits appurtenant to that and to set aside theproceedings of the third respondent in his proceedingsNa.Ka.No.252/98/A1 dated 20.05.98 served on 2.6.98 and declare thatthe applicant is deemed to have been retired from servicevoluntarily and settle terminal benefits to the applicant.For Petitioner : Mr.L.ChandrakumarFor Respondents: Mr.A.C.Manibharathi,G.A.O R D E RThe petitioner was working as Headmaster of a Panchayat UnionElementary School at Veeranakuppam, Uthangarai Taluk. He filedO.A.No.5936 of 1998 before the Tamil Nadu Administrative Tribunal,seeking to challenge the order of the third respondent dated20.05.1998 and for a consequential direction to the respondents totreat the period from 06.01.1990 to 22.09.1998 ad duty and conferall the befits of salary, annual increment, promotion with otherconsequential benefits. https://hcservices.ecourts.gov.in/hcservices/

2. By the impugned order dated 20.05.1998, the petitioner wasinformed that with reference to the treating of the period of eightyears from 05.01.1990 till the date of restoration of service, thematter was pending consideration. The department wanted to findout whether the Police Department had taken any action on theacquittal of the petitioner. But however, the petitioner's requestfor Voluntary Retirement was rejected.3. The claim of the petitioner was that he gave a notice to goon voluntary retirement by his notice dated 23.02.1998 and threemonths notice which was required under the Rules comes to an end on25.5.1998. He sent a letter dated 25.05.1998 to the thirdrespondent stating that since there was no rejection of his requestto go on voluntary retirement, it was deemed to have been accepted.Therefore, he stopped attending work from 25.05.1998. It was alsothe case of the petitioner that the rejection order which waschallenged dated 20.05.1998 was received by him only on 02.06.1998i.e. after the period of expiry of the notice.4.On notice from the Tribunal, the respondents have filed areply affidavit dated 05.10.2009. In the reply affidavit, it wasstated that the petitioner was suspended pursuant to theregistration of a criminal case in Crime No.2/90 by the Sub-Inspector of Police, Dharmapuri Police Station. The said case wastried as Calendar Case 14/92 before the Judicial Magistrate No.I,Dharmapuri. The said case ended in acquittal in favour of thepetitioner by a judgment dated 16.08.1995. Thereafter, on therepresentation of the petitioner, he was restored to service on23.02.1998. After joining duty for one day, he gave notice to goon voluntary retirement. It was further stated that so far as theregularisation of the period of suspension from 6.1.90 to 22.9.98was concerned, as it was for more than eight years, necessaryorders will have to be obtained from the Government. Thepetitioner was also informed by them that he should submitnecessary documents to enable them to forward the petitioner'srequest to the Government for regularising his service. Therespondent denied the statement made by the petitioner that theorder was ante dated. The petitioner was also informed that beforegetting relieved, prior permission should have been obtained by thepetitioner, but he never informed the department about his leavingservice nor handed over charge. The Rule requires clearance fromthe Vigilance Department for going on Voluntary Retirement and thepetitioner's service during the interregnum period of suspensionwas also not regulated.5. In view of the abolition of the Tribunal, the matter stoodtransferred to this Court and was re-numbered as W.P.No.37681 of2006.6. Mr.L.Chandrakumar, learned counsel for the petitionersubmitted that once notice period under Fundamental Rule 56(3) is https://hcservices.ecourts.gov.in/hcservices/ given, unless the competent authority refuses the same, Rule 56(3)(f)enables the Government Servant that he shall be deemed to havebeen retired voluntary from service. 7. Fundamental Rule 56(3) no doubt enables a Governmentservant to go on voluntary retirement on completion of 58 years ofage or who has completed 20 years of service by giving notice ofnot less than three months in writing, but however, the notice willhave to be given to the appointing authority and the date of noticeis only from the date of receipt of the notice by the appointingauthority. Rule 56(3)(e) enjoins the authority to accept thenotice only when they are satisfied namely;i) that no disciplinary proceedings are contemplated orpending against the Government servant for the imposition of amajor penalty; ii) that no prosecution is contemplated or pending in a Courtof law against the Government Servant concerned; iii)that a report from the Director of Vigilance and Anti-Corruption has been obtained to the effect that no enquiry iscontemplated or pending against the Government servant concerned;iv)that no dues which cannot be recovered from his Death-cum-Retirement Gratuity are pending to be recovered from the GovernmentServant concerned;v) that there is no contractual obligation to serve theGovernment during the period in which the Government servantconcerned seeks to retire voluntarily.8. Only when these conditions were satisfied, the appointingauthority will have to issue orders before the date of expiry ofnotice either accepting the voluntary retirement or not. Therefore,Rule 56(3)(f) says if there is no denial by the authority, then thefiction found in the said Rule will comes into operation. 9. In this context, it is necessary to refer to a decision ofthe Supreme Court in Padubidri Damodar Shenoy v. Indian AirlinesLimited and another reported in JT 2009 (12) SC 108. The SupremeCourt in the said decision referred to various types of Rulesenabling the Government servant to go on voluntary retirement. InParagraph 25 referred to the earlier judgment of the Supreme Courtin Tek Chand v. Dile Ram [JT 2001 (2) SC 114]. The Supreme Court inthat judgment referred to three categories of Rules relating tovoluntary retirement after notice. It is necessary to refer toparagraph 25 of the said judgment, which is as follows:"25. In Tek Chand v. Dile Ram [JT 2001 (2) SC 114], athree Judge Bench of this Court considered S.K.Singhalin paragraph 34 of the report and then went on to holdas follows:35. In our view, this judgment fullysupports the contention urged on behalf of theappellant in this regard. In this judgment, itis observed that there are three categories ofrules relating to seeking of voluntary https://hcservices.ecourts.gov.in/hcservices/ retirement after notice. In the firstcategory, voluntary retirement automaticallycomes into force on expiry of notice period.In the second category also, retirement comesinto force unless an order is passed duringnotice period withholding permission to retireand in the third category voluntary retirementdoes not come into force unless permission tothis effect is granted by the competentauthority. In such a case, refusal ofpermission can be communicated even after theexpiry of the notice period. It all dependsupon the relevant rules. In the case decided,the relevant Rule required acceptance of noticeby appointing authority and the proviso to theRule further laid down that retirement shallcome into force automatically if the appointingauthority did not refuse permission during thenotice period. Refusal was not communicated tothe respondent during the notice period and theCourt held that voluntary retirement came intoforce on expiry of the notice period andsubsequent order conveyed to him that he couldnot be deemed to have voluntary retired had noeffect. The present case is almost identicalto the one decided by this Court in theaforesaid decision.36. This Court in B.J. Shelat v. State ofGujarat while dealing with a case of voluntaryretirement, referring to the Bombay CivilService Rules, Rule 161(2)(ii) proviso and Rule56(k) of the Fundamental Rules, in a similarsituation, held that a positive action by theappointing authority was required and it wasopen to the appointing authority to withholdpermission indicating the same andcommunicating its intention to the Governmentservant withholding permission for voluntaryretirement and that no action can be taken oncethe Government servant has effectively retired.Paras 9 and 10 of the said judgment read thus:"9. Mr. Patel next referred us to themeaning of the word 'withhold' in Webster'sThird New International Dictionary which isgiven as 'hold back' and submitted that thepermission should be deemed to have beenwithheld if it is not communicated. We arenot able to read the meaning of the word'withhold' as indicating that in theabsence of a communication it must beunderstood as the permission having beenwithheld. https://hcservices.ecourts.gov.in/hcservices/

10. It will be useful to refer to theanalogous provision in the FundamentalRules issued by the Government of Indiaapplicable to the Central Governmentservants. Fundamental Rule 56(a) providesthat except as otherwise provided in thisRule, every Government servant shall retirefrom service on the afternoon of the lastday of the month in which he attains theage of fifty-eight years. Fundamental Rule56(j) is similar to Rule 161(aa)(1) of theBombay Civil Services Rules conferring anabsolute right on the appropriate authorityto retire a Government servant by givingnot less than three months' notice. UnderFundamental Rule 56(k) the Governmentservant is entitled to retire from serviceafter he has attained the age of fifty-fiveyears by giving notice of not less thanthree months in writing to the appropriateauthority on attaining the age specified.But proviso (b) to sub-rule 56(k) statesthat it is open to the appropriateauthority to withhold permission to aGovernment servant under suspension whoseeks to retire under this clause. Thusunder the Fundamental Rules issued by theGovernment of India also the right of theGovernment servant to retire is not anabsolute right but is subject to theproviso whereunder the appropriateauthority may withhold permission to aGovernment servant under suspension. On aconsideration of Rule 161(2)(ii) and theproviso, we are satisfied that it isincumbent on the Government to communicateto the Government servant its decision towithhold permission to retire on one of thegrounds specified in the proviso."In this decision effect of Rule 56(k) of theFundamental Rules is also considered which answers theargument of the learned counsel for the respondent onthis aspect. It may also be noticed that under Rule48A in the Government of India's decision givinginstructions to regulate voluntary retirement it isstated:"Even where the notice of voluntary retirementgiven by a Government servant requiresacceptance by the appointing authority, theGovernment servant giving notice may presumeacceptance and the retirement shall beeffective in terms of the notice unless the https://hcservices.ecourts.gov.in/hcservices/ competent authority issues an order to thecontrary before the expiry of the period ofnotice."In the very same judgment, the previous judgment of the SupremeCourt in B.J.Shelat v. State of Gujarat was also referred to wherea similar Rule was came to be considered by the Supreme Court. 10. If it is seen in the said context, then it can be assumedthat if there is no rejection within the notice period, then thereis a presumption for going on voluntary retirement. But on thecontrary in the present case, the petitioner himself had filed theorder rejecting the case of the petitioner, which was dated20.05.1998. In the Original application, he had stated that he hadreceived the said order only on 02.06.1998. Though he contendedthat the said order was ante dated but the same was denied by therespondents in the reply statement. 11. The further question arises for consideration was that ifthe competent authority rejects the request of the petitionerwithin the notice period, whether it should be communicated beforethe expiry of the notice. Fundamental Rule 56(3)(f) merely saysthat the appointing authority shall issue orders before the date ofexpiry of notice and nowhere the Rule contemplates that therejection order must be communicated to the petitioner. Presumablyhaving that in mind, the petitioner had made a statement that theorder was ante dated. When the respondents have refused about anyante dating of the order, this Court has no other reason todisbelieve the statement made in the reply affidavit.12. In the light of the above, the writ petition standsdismissed. However, With reference to the regularisation of theperiod of suspension was concerned, as already stated in the replyaffidavit, it is for the petitioner to co-operate by givingappropriate documents for sending proposals to the competentauthority. The dismissal of the writ petition will not dis-entitlethe petitioner from pursuing the remedy for getting his suspensionregularised. No costs. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar svkiTo1. The Director of Elementary Education, Chennai -6. https://hcservices.ecourts.gov.in/hcservices/

2. The District Elementary Educational Officer, Dharmapuri.3. The Additional Assistant Elementary Educational Officer, Uthangarai, Dharmapuri District.+ 1 cc to The Govt. Pleader, (CC SR 53124)+ 2 cc to Mr.L.Chandrakumar, Advocate, (CC SR 52377)W.P.No.37681 of 2006(O.A.No.5936 of 1998)JP (CO)RH (19.10.09)