S.RAJASEKHARAN NAIR v. THE STATE OF KERALA

T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - -W.P.(C) No. 17052 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the th 20th day of October, 2009.JUDGMENTThe petitioner herein who is working as Selection Grade Lecturer inHistory in the college managed by the second respondent, seeks for adirection to continue him in service until 31.3.2010, in spite of submissionof an application for voluntary retirement.2. The dispute herein involves an application submitted by thepetitioner seeking voluntary retirement from service which he has sought towithdraw. The management resists the withdrawal on the ground that theyhave already accepted the application. The legal effect of the withdrawal isthe issue to be decided in the writ petition.3. The petitioner made a request to the Manager seeking voluntaryretirement on 17.3.2009. A copy of the same is produced as Ext.R2(a).The voluntary retirement sought for is with effect from 30.6.2009. It wassubmitted to the Manager through the Principal. Ext.P1 is the letter givenby the petitioner seeking to withdraw Ext.R2(a). This is dated 3.6.2009.Ext.P2 is the reply given to the Principal on 5.6.2009 whereby it wasinformed that Ext.P1 can have relevance only if the Manager does not take wpc 17052/20092any steps on the application seeking voluntary retirement till the end ofJune. Again, the petitioner submitted Ext.P3 dated 12.6.2009 to theManager seeking to withdraw the voluntarily retirement application andallow him to continue in service. Finally, by Ext.P4 dated 16.6.2009, thePrincipal forwarded an order dated 30.5.2009 produced as Ext.P5, wherebythe “Management has permitted the petitioner to retire voluntarily subject tothe relevant rules in the KSR - Rule 56 Part III, with effect from 30.6.2009.”It is in these circumstances, that the petitioner has approached this court.4. Mainly, it is contended that as the petitioner has withdrawn therequest for voluntary retirement before the application for voluntaryretirement has come to effect, he is entitled to continue in service. Relianceis placed on the principles stated by this Court and the Apex Court invarious decisions, viz. Union of India v. Wing Commander T.Parthasarathy{( 2001) 1 SCC 158}, Srikantha S.M. v. Bharath EarthMovers Ltd. {(2005) 8 SCC 314), National Textile Corporation v.Jhadav (2008 (3) KLT SN 49 and Sivadas v. Kerala State HandloomDevelopment Corpn. (1991 (2) KLT SN page 37, Case No.47).5. Counter affidavits have been filed on behalf of respondents 2 and3. In a nutshell, the stand taken therein is that before submission of Ext.P1 wpc 17052/20093application for withdrawal, by Ext.R2(a), the petitioner's request wasallowed by the Management and as they have accepted Ext.P1 applicationand permitted the petitioner to retire voluntarily from the afternoon of30.6.2009, the withdrawal can have no legal effect. Reliance is placed onRule 56 (iv) of Part III K.S.R. also.6. Heard Shri V.A. Muhammed, learned counsel for the petitionerand Shri M.V. S. Namboothiri, learned counsel appearing for respondents 2and 3 and learned Govt. Pleader.7. By relying upon various decisions, learned counsel for thepetitioner vehemently submitted that the application for voluntaryretirement from service was from a future date, viz. 30.6.2009. Till theexpiry of the said date, the jural relationship of employer-employeecontinues. Therefore, the mere acceptance of the application will not haveany effect on the said jural relationship. Therefore, the application forwithdrawal which was forwarded well in time ought to have been accepted.It is pointed out that merely because the resolution is dated 30.5.2009 andthe application for withdrawal is dated 3.6.2009, the position cannot change.8. Learned counsel appearing for respondents 2 and 3 relied uponsub-rule (iv) of Rule 56 of Part III K.S.R. which reads as follows:“ (iv) Voluntary retirement of an employee shall become effective on wpc 17052/20094the grant of permission to retire by the authority competent to makeappointment to the post.”It is therefore submitted that once the permission has been granted as perExt.R2(b) by the management, it has become effective. The same is dated30.5.2009. Therefore, the letter Ext.P1 cannot have any legal effect.Reliance is placed on the decision of the Apex Court in Raj Kumar v.Union of India (AIR 1969 SC 180). In para 5 of the said decision, it hasbeen held thus:“Termination of employment by order passed by the Governmentdoes not become effective until the order is intimated to theemployee. But where a public servant has invited by his letter ofresignation determination of his employment, his services normallystand terminated from the date on which the letter of resignation isaccepted by the appropriate authority and in the absence of any law orrule governing the conditions of his service to the contrary, it will notbe open to the public servant to withdraw his resignation after it isaccepted by the appropriate authority. Till the resignation is acceptedby the appropriate authority in consonance with the rules governingthe acceptance, the public servant concerned has locus paenitentiacbut not thereafter. Undue delay in intimating to the public servantconcerned the action taken on the letter of resignation may justify aninference that resignation has not been accepted. In the preset casethe resignation was accepted within a short time after it was received wpc 17052/20095by the Government of India. Apparently the State of Rajasthan didnot, immediately implement the order, and relieve the appellant of hisduties, but the appellant cannot profit by the delay in intimatingacceptance or in relieving him of his duties.”9. I will examine the contentions of the parties, in the light of theprinciples laid down in various decisions. In the decision of this court inSivadas's case (1991 (2) KLT SN 37, case No.47), the letter of resignationwas dated 15.3.1991 which was accepted on 18.4.1991. The letterwithdrawing the resignation is dated 6.4.1991. While examining the legalissue, it was held thus:“The services of an employee normally stands terminated only fromthe date on which the letter of resignation is accepted by theappropriate authority, unless there is any law or statutory rulegoverning the conditions of service to the contrary. Till theresignation was accepted by the concerned authority is consonancewith the rules governing acceptance, the employee concerned haslocus poenitentiac but not later. Under common law also, resignationis not complete until accepted by the competent authority. Beforesuch acceptance, the employee ca change mind and withdraw hisresignation. When once the resignation is accepted and the contractof service put an end to, the relationship of master and servant endsand thereafter there is no question of withdrawal of the resignation.”10. In Union of India and others v. Wing Commander T. wpc 17052/20096Parthasarathy {(2001)1 SCC 158} relied upon by the learned counsel forthe petitioner, the Apex Court considered a similar issue. Therein, anapplication was submitted by the officer on 21.7.1985 praying forpremature retirement from service with effect from 31.8.1986. Later, on19.2.1986 he submitted an application seeking to withdraw the applicationearlier submitted for premature retirement. He was served with acommunication on 7.3.1986 which is dated 6.3.1986 stating thatinformation has been received from Air headquarters in their letter dated20.2.1986 that the respondent will prematurely retire from service at hisown request with effect from 31.8.1986. The Apex Court consideredvarious decisions, viz. Raj Kumar v. Union of India (AIR 1969 SC 180),Union of India v. Gopal Chandra Misra (AIR 1978 SC 694) andBalram Gupta v. Union of India (1987 Supp SCC 228). It was held thusin paragraphs 6 and 8:“A request for premature retirement which required the acceptanceof the competent or appropriate authority will not be complete tillaccepted by such competent authority and the request coulddefinitely be withdrawn before it became so complete. It is all themore so in a case where the request for premature retirement wasmade to take effect from a future date as in this case.So far as the case in hand is concerned, nothing in the form of wpc 17052/20097any statutory rules or any provision of any Act has been brought toour notice which could be said to impede or deny this right of theappellants. On the other hand, not only the acceptance of the requestby the headquarters, the appropriate authority was said to have beenmade only on 20.2.1986, a day after the respondent withdrew hisrequest for premature retirement but even such acceptance in thiscase was to be effective from a future date namely 31.8.1986.Consequently, it could not be legitimately contended by theappellants that there was any cessation of the relationship of masterand servant between the Department and the respondent at any ratebefore 31.8.1986. While that be the position inevitably therespondent had a right and was entitled to withdraw or revoke hisrequest earlier made before it ever really and effectively becameeffective.”11. The next decision relied upon by the learned counsel for thepetitioner is Srikantha S.M.'s case {(2005) 8 SCC 314}. Therein, theletter of resignation was tendered on 4.1.1993. On the basis of the saidletter, the matter was processed and the resignation was accepted on thesame day. The appellant was informed that his resignation had beenaccepted and he would be relieved “with immediate effect”. By anotherletter, he was informed that his casual leave had been sanctioned from5.1.1993 to 13.1.1993 and 14.1.1993 being a holiday, the appellant wouldbe relieved by the close of working hours on 15.1.1993. During this period, wpc 17052/20098the appellant submitted another letter dated 8.1.1003 withdrawing hisresignation. After referring to the decisions in Union of India v. GopalChandra Misra.(AIR 1978 SC 694), Balram Gupta v. Union of India(1987 Supp SCC 228), Power Finance Corpn. Ltd. v. Pramod KumarBhatia {(1997) 4 SCC 280}, J.N. Srivastava v. Union of India {(1998) 9SCC 559} and Shambhu Murari Sinha v. Project and DevelopmentIndia {(2000) 5 SCC 621}, it was held in para 26 thus:“On the basis of the above decisions, in our opinion, the learnedcounsel for the appellant is right in contending that though therespondent company had accepted the resignation of the appellanton 4.1.1993 and was ordered to be relieved on that day, by asubsequent letter, he was granted casual leave from 5.1.1993 to13.1.1993. Moreover, he was informed that he would be relievedafter office hours on 15.1.1993. The vinculum juris, therefore, inour considered opinion, continued and the relationship of employerand employee did not come to an end on 4.1.1993. The relievingorder and payment of salary also make it abundantly clear that hewas continued in service of the Company up to 15.1.1993.”Therefore, the view taken is that the relationship of employer and employeedid not come to an end on 4.1.1993 and the letter withdrawing theresignation ought to have been treated as valid.12. A reference to the principles stated by the Apex Court in various wpc 17052/20099other decisions is also relevant. The question regarding the application forwithdrawal in respect of a prospective resignation was considered by aConstitution Bench of the Supreme Court in Union of India's case (AIR1978 SC 694). In fact, the decision of the Apex Court in Raj Kumar's case(AIR 1969 SC 180) relied upon by respondents 2 and 3 was consideredand explained in the said decision. Therein, the letter of resignation is dated7.5.1977 stating that the resignation shall be effective from 1.8.1977. Theletter withdrawing the same is dated 15.7.1977. It was held thus inparagraphs 42 and 51 thus:“42. The general principle that emerges from the foregoingconspectus is that in the absence of anything to the contrary in theprovisions governing the terms and conditions of the office/post, anintimation in writing sent to the competent authority by theincumbent, of his intention or proposal to resign his office/post froma future specified date, can be withdrawn by him, at any time beforeit becomes effective, ie. before it effects termination of the tenure ofthe office/post or the employment.”Finally, in para 51, their Lordships laid down the law thus:“It will bear repetition that the general principle is that in theabsence of a legal, contractual or constitutional bar, a “prospective”resignation can be withdrawn at any time before it becomeseffective, and it becomes effective when it operates to terminate the wpc 17052/200910employment or the office-tenure of the resignor. This general rule isequally applicable to Government servants and constitutionalfunctionaries. In the case of a government servant or functionarywho cannot, under the conditions of his service/or office, by his ownunilateral act of tendering resignation, give up his service/or office,normally, the tender of resignation becomes effective and hisservice/or office-tenure terminated, when it is accepted by thecompetent authority.”13. The next important decision rendered by the Apex Court isBalram Gupta's case (AIR 1987 SC 2354 = 1987 Supp. SCC 228). Thatwas a case of voluntary retirement. The facts of the case show that as perletter dated 24.12.1980 the appellant sought voluntary retirement fromservice, with effect from 31.3.1981. By order dated 20.1.1981 theappellant was allowed to retire voluntarily from service prospectively witheffect from the afternoon of 31.3.1981. In the meanwhile, by a letter dated31.1.1981 he withdrew the notice of voluntary retirement. The question waswhether the withdrawal is effective. In fact, sub-rule (4) of Rule 48-A ofthe Pension Rules prevented withdrawal of resignation letter except with theapproval of the authority. It was argued that once the officer gives thenotice of intention to voluntarily retire, it operates. It was held that “ thedissolution would be brought about only on the date indicated, i.e. 31st of wpc 17052/200911March, 1981, up to that the appellant was and is a Government employee.There is no unilateral termination of the same prior thereto. Their Lordshipsconsidered the decision in Raj Kumar's case (AIR 1969 SC 180) as wellas Union of India's case (AIR 1978 SC 694). It was held in para 11 that“but in the facts of the instant case, the resignation from the Governmentservant was to take effect at a subsequent date prospectively and thewithdrawal was long before that date. Therefore, the appellant had locus.”The argument raised by relying upon sub-rule (4) of Rule 48-A of thePension Rules, was also rejected. 14. In Power Finance Corporation's case {(1997) 4 SCC 280), themater considered was in relation to an application for voluntary retirement.Therein, the respondent applied for voluntary retirement pursuant to thescheme framed by the Corporation, to relieve the surplus staff. Initially, byproceedings dated 20.12.1994 the Corporation accepted the resignationsubject to his clearance of outstanding. The acceptance was to giveneffect from 31.12.1994. The respondent also requested that the formalrelieving order relieving him from 31.12.1994 be handed over immediately.In the meanwhile, the appellant Corporation withdrew the scheme. It wascontended that as the voluntary retirement did not become effective, novested right has been created in favour of the respondent. It was held thus in wpc 17052/200912para 7:“It is now settled legal position that unless the employee is relievedof the duty, after acceptance of the offer of voluntary retirement orresignation, jural relationship of the employee and the employer doesnot come to an end. Since the order accepting the voluntaryretirement was a conditional one, the conditions ought to have beencomplied with. Before the conditions could be complied with, theappellant withdrew the scheme. Consequently, the order acceptingvoluntary retirement did not become effective. Thereby, no vestedright has been created in favour of the respondent.”15. In J.N. Srivastava v. Union of India {(1998) 9 SCC 559}, theappellant gave notice for voluntary retirement on 3.10.1989 which was tocome into effect from 31.1.1990. This was accepted by the Government on2.11.1989 and thereafter the appellant withdrew the notice by his letterdated 11.12.1989. The said communication was not accepted by theGovernment. While examining the question, it was held thus:“It is now well settled that even if the voluntary retirement notice ismoved by an employee and gets accepted by the authority within thetime fixed, before the date of retirement is reached, the employee haslocus poenitentiac to withdraw the proposal for voluntaryretirement.”Accordingly, the Apex Court set aside the order of the authority as well asthe order of the Tribunal and directed the respondents to treat the appellant wpc 17052/200913to have been voluntarily withdrawn his proposal for voluntary retirementwith effect from 31.1.1990.16. I may also refer to another decision of the Apex Court inShambhu Murari Sinha's case {(2000) 5 SCC 621} which was also a caseconcerning voluntary retirement. Therein, the application of the appellantwas dated 18.10.1995. The offer was accepted by the management by theirletter dated 30.7.1997. It was specified in the letter that “release memoalong with the detailed particulars will follow.” The appellant submitted aletter on 7.8.1997 withdrawing the letter dated 18.10.1995. This was notgiven effect to by the management. While considering the question whetherthe letter of withdrawal of voluntary retirement could have been actedupon, it was held thus in para 5:“From the facts stated above, it would be seen that though the optionof voluntary retirement exercised by the appellant by his letter dated18.10.1995 was accepted by the respondent Management by theirletter dated 30.7.1997, the appellant was not relieved from serviceand he was allowed to continue in service till 26.9.1997, which, forall practical purposes, would be the “effective date” as it was on thisdate that he was relieved from service. In the meantime, as pointedout above, the appellant had already withdrawn the offer of voluntaryretirement vide his letter dated 7.8.1997. The question which,therefore, arises in this appeal is whether it is open to a person having wpc 17052/200914exercised option of voluntary retirement to withdraw the said offerafter its acceptance but before it is made effective. The question issquarely answered by three decisions, namely, Balram Gupta v.Union of India, J.N. Srivastava v. Union of India and Power FinanceCorporation Ltd. v. Pramod Kumar Bhatia in which it was held thatthe resignation, in spite of its acceptance, can be withdrawn beforethe “effective date”. That being so, the appeal is allowed.”17. The facts of the present case have to be examined in the light ofthe legal principles thus discussed above. The case pleaded by respondents2 and 3 is that as the petitioner's application was acted upon and the samewas accepted by the appointing authority, the same came into effect on30.5.2009 itself. Reliance is placed on sub-rule (iv) of Rule 56 of Part IIIK.S.R. also. In Balram Gupta's case (AIR 1987 SC 2354), reference ismade to sub-rule (2) of Rule 48A of the Pension Rules which provides that“the notice of voluntary retirement given under sub-rule (1) shall requireacceptance by the appointing authority.” By an order dated 20.1.1981 theappellant was allowed to retire voluntarily from service prospectively witheffect from the afternoon of 31.1.1981. The said order reads as follows:“Shri Bal Ram Gupta, permanent Upper Division Clerk andOfficiating Accountant in the Photo Division is allowed to retirevoluntarily with effect from the afternoon of 31st March, 1981, inaccordance with the provisions contained in the Ministry of Home wpc 17052/200915Affairs, Department of Personnel and Administrative Reforms O.M.No.25013/7/777 Estt.(A) dated 26th August, 1977.”The situation herein is similar.18. It is clear from Ext.P5 that the petitioner will have to retire fromservice with effect from 30.6.2009 and not on an earlier date at all.Therefore, the jural relationship of employer and employee continues till30.6.2009. The voluntary retirement will become effective only on30.6.2009. Prior to that, by Ext.P1 dated 3.6.2009 he withdrew theapplication for voluntary retirement. Hence, going by the principlesreiterated by the Apex Court in various decisions, it is clear that theeffective date of retirement was 30.6.2009. It was permissible for thepetitioner to withdraw the application prior to that date. Merely because themanagement permitted the petitioner to retire by its proceedings dated30.5.2009, the jural relationship of employer and employee did not come toan end on that day. Herein, as the voluntary retirement had to be effectivefrom a future date, such permission by the management will not have anyeffect. As held in J.N. Srivastava's case {(1998) 9 SCC 559) even if thevoluntary retirement notice is moved by an employee and gets accepted bythe authority within the time fixed, before the date of retirement is reached,the employee has locus paenitentiac to withdraw the proposal for voluntary wpc 17052/200916retirement. The facts in Balram Gupta's case (supra) show that theposition therein was also identical. In these circumstances, the contentionraised by respondents 2 and 3 that since by Ext.P5 permission has beengranted and as the voluntary retirement has been effective from that day,there is no legal effect for the application for withdrawal, cannot beaccepted. The wording of Ext.P5 thus allowing him to retire only from theafternoon of 30.6.2009 is all the more important in considering the legalposition. Nothing prevented the petitioner from withdrawing theapplication before the said date.19. In that view of the matter, the petitioner is entitled to succeed inthis writ petition. Hence, Ext.P5 is quashed. There will be a direction tothe respondents to allow the petitioner to continue in service till 31.3.2010,the date on which he attains superannuation. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.)kav/