Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.31236 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Bhupendra Kumar Mohanty Aged about 52 years Son of Jaganmohan Mohanty Resident at Quarter No. 304 Asiana Apartment Shivashakti Nagar Berhampur, Ganjam. … -VERSUS- 1. State of Odisha Represented through The Additional Secretary Department of MSME Odisha Bhubaneswar District: Khordha. 2. Directorate of Petitioner. Export Promotion and Marketing Represented through Director Office of Directorate of Export Promotion and Marketing, 1st Floor Raptani Bhawan BDA Commercial Complex Near Indradhanu Market Nayapalli, Bhubaneswar. District: Khordha … Opposite parties. W.P.(C) No.31236 of 2023 Page 1 of 107 Counsel appeared for the parties: For the Petitioner : M/s. Sambit Rath, S.K. Rout, B.K. Mishra, M.K. Das, Advocates For the Opposite parties : Mr. Shantanu Das, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 20.12.2024 :: Date of Judgment : 06.01.2025 MURAHARI SRI RAMAN, J.— J UDGMENT Assailed here in this writ petition the Office Order No.4215— II EMET-15/2023, dated 16.09.2023 of the Director of the Directorate of Export Promotion and Marketing, whereby the petitioner has been allowed to retire from Government service voluntarily with effect from 30.09.2023 (Annexure-6), purported to have been passed in pursuance of Office Order No.5825— MSME-FE-FE-0026-2015/MS&ME, dated 11.08.2023 (Annexure-6A) under the provisions of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992. 1.1. Challenge has also been made to rejection of Grievance Petition dated 18.09.2023 in connection with withdrawal of voluntary retirement notice vide W.P.(C) No.31236 of 2023 Page 2 of 107 Letter No.6957— MSME-FE-FE-0026-2015/MSME, dated 29.09.2023 (Annexure-6A). 1.2. Craving to allow him to be reinstated in the Government service and continue till he attains the age of superannuation, the petitioner has made the following prayers: “It is, therefore, prayed that this Hon‟ble Court may graciously be pleased to admit this writ petition and issue rule nisi calling upon the opposite parties to show if they fail to show cause or show cause and issue appropriate writ(s), then insufficient cause, order(s), direction(s) directing the opposite parties: A) B) C) To quash the impugned Order dated 16.09.2023, at Annexure-6 which states that vide Order dated 11.08.2023 the petitioner‟s request for voluntary retirement has been accepted; To quash 11.08.2023 at Annexure-6A Series: the Order dated 29.09.2023 and Further, direct to allow the petitioner to continue in the service till he attains the age of retirement; And may pass any other/further order(s), as this Hon‟ble Court may deem fit in the interest of justice and equity. And for this act of kindness, the petitioner as in duty bound shall ever pray.” Facts as narrated in the writ petition: W.P.(C) No.31236 of 2023 Page 3 of 107 2. The facts as adumbrated by the writ petitioner deserve to be referred to for the purpose of deciding the issues raised in the writ petition. 2.1. The petitioner, having joined as a Laboratory Assistant under the opposite party No.2-Directorate of Export Promotion and Marketing (“DEPM”, for brevity) by Order dated 10.10.1991, was promoted to the post of Scientific Assistant on 05.05.2005 and subsequently he was promoted to the post of Assistant Director (Inspection) vide Order dated 22.10.2020. 2.2. Having completed around 31 years of service, citing that he has been working as Senior Scientific Officer (in-Charge) in the Testing Laboratory at Balasore with effect from 29.10.2020, he was placed to discharge duties as Senior Scientific Officer (in-Charge) of Testing Laboratory, Berhampur for four days in a week with effect from 16.06.2023 by DEPM Office Order dated 12.06.2023 and in-Charge of Testing Laboratory at Balasore for two days in a week, the petitioner made application for voluntary retirement vide Letter dated 03.07.2023 addressing to the Principal Secretary of the Micro, Small and Medium Enterprise Department, (“MSME”, for short) through opposite party No.2 specifying his willingness for voluntarily retire from service with effect from 31.10.2023 (afternoon); W.P.(C) No.31236 of 2023 Page 4 of 107 however, without indicating curtailment of such notice period. 2.3. While matter was thus, he made an application for withdrawal of his application seeking voluntary retirement with effect from 31.10.2023 by an application dated 16.09.2023, sent via e-mail to the DEPM at [email protected] at 04.59 p.m. and the opposite party No.1-MSME Department at secy- [email protected] at 05.05 p.m. and also sent the said document by way of speed post, citing reason that sanction of Modified Assured Career Progression has been under consideration by the Government and to cause enquiry on irregularities which were pointed. On receiving the application for withdrawal of voluntary retirement, the Senior Scientific Officer (in-Charge) forwarded the same to the Director, DEPM-opposite party No.2 by Letter No.411-VTLBE-02/2020/TLB, dated 16.09.2023. 2.4. Even though said application for withdrawal of voluntary retirement was communicated to all concerned including the Appointing Authority, the opposite party No.2 at 12.10 p.m. on 18.09.2023 by way of e-mail communicated that the petitioner has been allowed to retire with effect from 30.09.2023. The text of the Office Order is reproduced: W.P.(C) No.31236 of 2023 Page 5 of 107 “Directorate of Export Promotion and Marketing : 1st Floor : Raptani Bhawan : BDA Commercial Complex : Near Indradhanu Market : Nayapalli : Bhubaneswar-15 Tel. No.0674-2552675 Fax No.2555268, e-mail:[email protected] *** Office Order No. 4215— IIEMET-15/2023/EPM, dated 16.09.2023 In pursuance of the Office Order No.5825/MSME, dated 11.08.2023 of MSME Department, Government of Odisha, Bhubaneswar, Shri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar has been allowed to retire from Government service voluntarily with effect from 30.09.2023 (afternoon) on personal ground in pursuance of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992. Sri Abhimanyu Majhi, Joint Director (Inspection) will remain in-Charge of Senior Scientific Officer, Testing Laboratory, Balasore and Sri Chandan Kumar Mati, Assistant Director (Inspection) will remain in-Charge of Senior Laboratory, Berhampur, with effect from 01.10.2023 in addition to their own duties until further orders. Scientific Officer, Testing Sd/- 13.09.2023 Director *** Memo No.4218/EPM, dated 16.09.2023 Copy forwarded to Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection) of Directorate of EP&M, Odissa, Bhubaneswar for information and necessary W.P.(C) No.31236 of 2023 Page 6 of 107 action. He is informed to submit his pension papers in the prescribed relevant documents to this Directorate for availing his retirement dues as applicable. form along with other Sd/- 13.09.2023 Director” 2.5. Aggrieved by such Order dated 16.09.2023 accepting the resignation of the petitioner after receipt of application on 16.09.2023 for withdrawal of application for resignation from service intending voluntary retirement with effect from 31.10.2023, the petitioner approached the MSME Department with Grievance Petition dated 18.09.2023 which came to be rejected on 29.09.2023 and the same was communicated by Letter No.6957— MSME-FE-FE- 0026-2015/MSME, dated 29.09.2023 enclosing therewith copy of the following Office Order dated 11.08.2023, which had never been communicated to the petitioner before: “Government of Odisha MS&ME Department Office Order No.5825—MSME-FE-FE-0026-2015/MS&ME, Bhubaneswar, dated 11.08.2023
Legal Reasoning
After careful consideration of the voluntary retirement notice of Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar, Government Page 7 of 107 W.P.(C) No.31236 of 2023 to allow him to retire from have been pleased from Government service voluntarily with effect in 30.09.2023 pursuance of Rule 42 of Odisha Civil Services (Pension) Rules, 1992. (afternoon) on personal ground Consequent upon his voluntary retirement, he will be entitled to all retirement benefits as per provisions contained under Odisha Civil Services (Pension) Rules, 1992. By Order of the Governor Sd/- (S.C. Mandal) Additional Secretary to Government. Memo No.5826/MSME, dated 11.08.2023 Copy forwarded to Sri Bhupendra Kumar Mohanty, Assistant Director (Inspection), Directorate of Export Promotion and Marketing, Odisha, Bhubaneswar for information and necessary action. Sd/- Additional Secretary to Government.” 2.6. Seeking indulgence of this Court by quashing the Office Order dated 11.08.2023 as communicated along with Order dated 29.09.2023 of the MSME Department rejecting the grievance petition in connection with withdrawal of voluntary retirement (Annexure-6A series) and Office Order dated W.P.(C) No.31236 of 2023 Page 8 of 107 16.09.2023 of the Director, DEPM (Annexure-6), the petitioner has knocked the doors of this Court invoking extraordinary jurisdiction under Article 226/227 of the Constitution of India. Counter affidavit of the opposite party No.1: 3. The opposite party No.1 having chosen not to file response independently to the contents and the averments of the writ petitioner, merely sought to adopt the counter affidavit filed by the opposite party No.2. Counter affidavit of the opposite party No.2: 4. Answering the contention of the petitioner that before lapse of date of effect given in the notice for voluntary retirement, i.e., 31.10.2023, the resignation could not have been accepted, it is affirmed that Rule 42 of the Odisha Civil Services (Pension) Rules, 1992 (“Pension Rules”, for convenience) does not restrict or restrain the appropriate authority of the Government from allowing voluntary retirement before expiry of three months from the date of application/notice. The Rule mandates the employee to give a notice of at least three months in their application for voluntary retirement. W.P.(C) No.31236 of 2023 Page 9 of 107 4.1. Refuting the averment of the petitioner that prior to acceptance of resignation vide Office Order dated 16.09.2023, withdrawal notice was sent via e-mail on the same day, it is asserted by the opposite party No.2 that after the order being passed to hand over the charges of Testing Laboratory, the petitioner submitted his representation for withdrawal of his application for voluntary retirement. 4.2. The voluntary retirement of the petitioner was accepted by Government in MSME Department and intimated to the Directorate of EPM on 11.08.2023, i.e., before receipt of his representation for withdrawal of application for voluntary retirement. Further, on 16.09.2023 an order was issued by Directorate to hand over the charges of the Testing Laboratory of Balasore and Berhampur to the Officers of the Directorate. Though the petitioner was well aware of acceptance of the application for voluntary retirement by the Government in MSME Department he has falsely averred that he was intimated for the first time regarding acceptance of such application for voluntary retirement on 16.09.2023. 4.3. After submission of the application for voluntary retirement the appointing authority, i.e., Government in MSME Department, has rightly accepted the W.P.(C) No.31236 of 2023 Page 10 of 107 application with effect from 30.09.2023. After submission of the application for voluntary retirement the applicant cannot claim the date of acceptance of the application for voluntary retirement. The petitioner has avoided to receive the Government order regarding acceptance of the application for voluntary retirement though he was well aware of its acceptance by the Government in MSME Department and Director has personally instructed him to submit his pension papers and receive the Government orders on 19.08.2023. Rejoinder affidavit of the petitioner: 5. Refuting the assertions of the opposite parties, the petitioner has filed rejoinder affidavit by denying the fact that no proof has been furnished to demonstrate that they had discussed about the acceptance of voluntary retirement with the petitioner. It is on record to suggest that the Director of EPM had accepted the application for voluntary retirement only on 16.09.2023, which was communicated to the petitioner on 18.09.2023. Therefore, it is suggested that the affirmation of the opposite party No.2 that a copy of Order dated 11.08.2023 accepting voluntary retirement was being asked to the petitioner for acknowledging receipt is far from truth. W.P.(C) No.31236 of 2023 Page 11 of 107 5.1. Whereas the petitioner has specified that the retirement would take effect from 31.10.2023, the opposite parties are not vested with power to curtail such notice period. It is only after completion of 20 years of service the petitioner submitted the application for voluntary retirement on 03.07.2023 by specifying the effective date on 31.10.2023. Therefore, it is asserted by the petitioner that the opposite parties were not justified in curtailing said period unilaterally and curtailing the date of retirement cannot be treated as voluntary retirement. In the scheme of voluntary retirement, it is the employee who has the right to seek for curtailment of notice period of three months. Hearing: 6. Since pleadings are completed and exchanged between the counsel for the respective parties, on consent this matter is taken up for final disposal at the stage of admission. 6.1. Heard Sri Sambit Rath, learned Advocate for the petitioner and Sri Shantanu Das, learned Additional Standing Counsel for the opposite parties. 6.2. Hearing being concluded, the matter was reserved for preparation and pronouncement of judgment. Rival contentions and submissions: W.P.(C) No.31236 of 2023 Page 12 of 107 7. Sri Sambit Rath, learned Advocate appearing for the petitioner submitted that the provisions of Rule 42 of the Pension Rules does not vest power on the opposite parties to curtail the period of notice as specified by the employee. Had the Order dated 11.08.2023 by virtue of which MSME Department is stated to have accepted the application for voluntary retirement was existing on the date of withdrawal of application by the petitioner on 16.09.2023, such fact could have been communicated to him by way of recognized mode of service. Therefore, it is pleaded that such Order dated 11.08.2023 cannot be said to be an effective order having force. 7.1. Sri Sambit Rath, learned Advocate has placed reliance on K.L.E. Society Vrs. Dr. R.R. Patil, (2002) 5 SCC 278; AIR India Express Limited Vrs. Captain Gurdashan Kaur Sandhu, (2019) 17 SCC 129; M.S.P. Dora Vrs. Odisha State Road Transport Corporation, 2006 (I) OLR 240 to buttress his argument that application for voluntary retirement could not have been accepted before lapse of three months‟ notice period as envisaged under Rule 42 of the Pension Rules, 1992. 7.2. He would submit that though the Office Order dated 16.09.2023 is stated to have been signed on 13.09.2023 by the Director, DEPM, was W.P.(C) No.31236 of 2023 Page 13 of 107 communicated via e-mail on 18.09.2023 (12:10 Hours), which is indicative of the fact that the same has been passed after receipt of application for withdrawal of voluntary retirement on 16.09.2023 sent via e-mail at 17:05 Hours. The falsity of claim of the opposite parties can be discerned on bare glance at the Office Order dated 16.09.2023 of the Director, DEPM and Office Order dated 11.08.2023 of the MSME Department, copy of which was communicated to the petitioner along with Letter dated 29.09.2023 of the MSME Department rejecting the Grievance Petition filed with regard to acceptance of application contemplating voluntary retirement. 7.3. It is strenuously argued by Sri Sambit Rath, learned Advocate that when the provisions contained in Rule 42 of the Pension Rules have prescribed safeguards to the employee seeking voluntary retirement, it cannot be construed that the Authority had the discretionary power to grant voluntary retirement by waiving off three months‟ notice period. There cannot be relaxation or waiver of the three months‟ notice period and the authorities are not vested with the power to curtail the date of effect of retirement suggested by the petitioner in the application for voluntary retirement. Such notice period is meant for the Government servant (petitioner) for “cooling off” and reflection. W.P.(C) No.31236 of 2023 Page 14 of 107 Such three months‟ period would also give opportunity to the employer to make arrangements for search out substitute. As is apparent from the Office Order dated 16.09.2023, the arrangements have been made to hand over the charge to the Joint Director and the Assistant Director who would remain in-Charge of Testing Laboratories of Balasore and Berhampur respectively. It gives sufficient indication that no authority/official has been posted. Therefore, he urged that there was no point in rejecting the grievance of the petitioner since no one else is appointed in his place. 7.4. Amplifying his argument further Sri Sambit Rath, learned Advocate with all humility submitted that whereas the petitioner has been serving the Organisation since 10.10.1991 and having been promoted to the post of Assistant Director (Inspection) from the post of Scientific Assistant on 22.10.2020, the opposite parties-authorities should have been compassionate enough by considering the plight of the petitioner who was required to discharge duties as Senior Scientific Officer in-Charge of Testing Laboratory, Berhampur (for four days in a week) and Testing Laboratory, Balasore (for two days in a week). The distance between Balasore and Berhampur is around 400 kilometres. The undue haste shown by the W.P.(C) No.31236 of 2023 Page 15 of 107 opposite parties in accepting the application for voluntary retirement before the period stipulated by the petitioner, i.e., 31.10.2023 smacks arbitrariness and such fanciful action on the part of the employer (opposite parties) resulted in adverse civil consequences. Therefore, he would submit that the opposite parties while rejecting the Grievance Petition should have extended an opportunity of hearing to explain the difficulties faced and reasons for applying for voluntary retirement. 7.5. It is fervently submitted that the impugned Orders being devoid of reasons, are liable to be set aside. 8. Sri Shantanu Das, learned Additional Standing Counsel appearing for the opposite parties placed heavy reliance on the counter affidavit and submitted that there is no restriction put upon the authority concerned to accept the application for voluntary retirement before the specified period by the petitioner. Emphasis is laid on the fact that the petitioner earlier made such application(s) in the years 2015 and 2020 on the ground of illness, which were allowed to be withdrawn before the lapse of notice period. Nonetheless, the petitioner has submitted yet another application for voluntary retirement on 03.07.2023 specifying the date of effect of retirement on W.P.(C) No.31236 of 2023 Page 16 of 107 31.10.2023. Therefore, there being no prohibition on the employer to consider and accept the application for voluntary retirement before lapse of three months as the petitioner has remained indecisive to choose between to avail “voluntary retirement” or to carry on with the assigned job. He has been inconsistent in his decision. Vehemently contesting the matter in order to justify the action of the opposite parties in accepting the application for voluntary retirement, referring to paragraph 15 of the counter affidavit filed by the opposite party No.2, Sri Shantanu Das, learned Additional Standing Counsel submitted that the petitioner has been “in a habit of requesting the authorities in the name of voluntary retirement application stating that he is physically and mentally not sound to continue in the Government services from the time and again”. Therefore, he would submit that the Office Order dated 11.08.2023 depicting acceptance of application for voluntary retirement, copy of which though was offered to him for acknowledgement of receipt in a meeting held on 19.08.2023 in the Directorate of EPM, the petitioner consciously avoided to receive the same. Hence, no infirmity in acceptance of voluntary retirement application without waiting for notice period could have been attributed to the opposite parties. W.P.(C) No.31236 of 2023 Page 17 of 107 Analysis and discussions: 9. The following undisputed facts needs to be outlined for consideration of the issues raised: (a) Application/notice dated 03.07.2023 addressed to Principal Secretary, MSME Department seeking voluntary retirement on completion of 20 years of Government service in terms of Rule 42 of the Odisha Civil Services (Pension) Rules, 1992, has been submitted by the petitioner by specifying: “Therefore, I request you kind approval on my willingness for voluntary retirement from service to the State Government with effect from 31.10.2023 (AN) for which I shall be obliged.” (b) On 16.09.2023, before lapse of three months‟ notice period envisaged under Rule 42 of the Pension Rules, 1992, the petitioner withdrew the application/notice for voluntary retirement citing consideration of Modified Assured Career Progression by the Government on completion of 30 years of service. (c) On the very date, Office Order No.4215— IIEMET-15/2023/EPM, dated 16.09.2023 stated to have been signed on 13.09.2023 by the Director, DEPM, was issued. W.P.(C) No.31236 of 2023 Page 18 of 107 (d) Grievance Petition with regard to withdrawal of application/notice for voluntary retirement filed by the petitioner has come to be rejected by Letter No.6957— MSME-FE-FE-0026-2015/ MSME, dated 29.09.2023. 10. It is perceived from the record that: though the opposite party No.1 has claimed to have passed Order dated 11.08.2023 accepting the application/notice for voluntary retirement, did not choose to file counter affidavit on merit of the matter, rather filed affidavit affirming to have adopted counter affidavit filed by the opposite party No.2. In the opinion of this Court the opposite party No.1 would have been the appropriate party to assert whether such an order has been communicated and served on the petitioner. 10.1. The assertion of the opposite party No.2 at paragraph 11 of the counter affidavit that “the petitioner has attended the meeting of the Directorate on 19.08.2023 where he was intimated regarding acceptance of his voluntary retirement application and required to receive the copy of the Government order from the Directorate. Sri Mohanty was well aware of acceptance of his voluntary retirement application and intentionally avoided to receive the copy of the Government orders of acceptance of the voluntary W.P.(C) No.31236 of 2023 Page 19 of 107 retirement” has been strongly refuted by the petitioner by way of rejoinder affidavit “the petitioner was aware about the acceptance of VRS is completely frivolous and baseless” and the same has no force in law. 10.2. It is specific stance of the petitioner as is revealed from
Decision
paragraph 11 of the writ petition that “the withdrawal application for voluntary retirement has been made much prior to the Order of retirement taking effect, i.e. 30.09.2023. Even the original Order dated 11.8.2023 wherein the acceptance has been made has also not been communicated.” and it is stated to have come to his knowledge when the Grievance Petition qua withdrawal of application intending voluntary retirement was rejected and communicated vide e-mail dated 29.09.2023. 10.3. This Court appreciating rival contentions and submissions observed that the record is silent about the fact with respect to service of copy of Order dated 11.08.2023 of MSME Department on the petitioner. No material is placed by the opposite parties to evince that the copy of such Order had ever been served prior to passing of Order dated 29.09.2023 rejecting the Grievance Petition. 10.4. Furthermore, the record lacks evidence to show that as to why it took more than one month from W.P.(C) No.31236 of 2023 Page 20 of 107 11.08.2023 for the opposite party No.2 to make Order dated 16.09.2023 (though stated to have been signed by the Director, DEPM on 13.09.2023). It is inquisitive enough to observe that even as the opposite party No.2 has admitted to have received “the withdrawal of voluntary retirement application of the petitioner from the Office of the Senior Scientific Officer, Testing Laboratory, Balasore” in the Office of the Directorate of EPM at 4:59 P.M. on 16.09.2023 (vide paragraph 10 of counter affidavit), there is no explanation whatsoever placed before this Court neither by way of affirmation nor submissions as to why it took around six days to communicate the signed Order dated 13.09.2023 to the petitioner via e-mail on 18.09.2023. 10.5. It seems after receipt of application for withdrawal of voluntary retirement stated to be effective from 31.10.2023 (afternoon) on 16.09.2023, the opposite party No.2 has sprung into action only to deprive the petitioner his legitimate right to withdraw his application/notice before lapse of three months from the date of its making. 10.6. Before communication of Order dated 16.09.2023 is completed by service via e-mail on 18.09.2023, the petitioner has effectively served application seeking to withdraw the application/notice for voluntary W.P.(C) No.31236 of 2023 Page 21 of 107 retirement. Such withdrawal application is also before lapse of three months from the date of its submission on 03.07.2023. 11. A glance at Office Order dated 11.08.2023 of the Additional Secretary of MSME Department (Annexure- 6A) and Office Order dated 16.09.2023 of the Director of EPM (Annexure-6) would indicate that the opposite parties have exercised power under Rule 42 of the Pension Rules, 1992 to curtail the notice period of three months. 11.1. To examine whether such a power is vested in the opposite parties, it is expedient to extract the provisions contained in Rule 42 of the Pension Rules, which stand thus: “42. Voluntary Retirement on completion of 20 years Qualifying Service.— (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. (2) The notice of voluntary retirement given under (1) shall require acceptance by the sub-rule Appointing Authority. NOTE.— W.P.(C) No.31236 of 2023 Page 22 of 107 Such acceptance may be generally given in all cases except those: (a) contemplated against for in which disciplinary proceedings are the pending or the Government servant concerned imposition of a major penalty and the Disciplinary Authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or dismissal from service would be warranted in the case or (b) in which prosecution is contemplated or have launched in a Court of Law against the Government servant concerned. If it is proposed to accept the notice of voluntary retirement in such cases, approval of the Government should be obtained: Provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date that of expiry of the said period. (3) (a) A Government servant desirous of retiring under sub-rule (1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reason therefor. W.P.(C) No.31236 of 2023 Page 23 of 107 (b) On receipt of a request under clause (a), the Appointing Authority subject to the provision of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if he is satisfied that the curtailment of the period of notice will not cause any administrative the the Appointing Authority may requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. inconvenience, relax (4) This rule shall not apply to a Government servant who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation.— For the purpose of the rule the expression “Appointing Authority” shall means the authority which is competent to make appointment to the service or post from which Government servant seeks voluntary retirement. (5) The qualifying service as on the date of intended retirement of the Government servant retiring under this rule, with or without permission shall be increased by the period not exceeding five years, subject to the condition that the total W.P.(C) No.31236 of 2023 Page 24 of 107 qualifying service rendered by the Government servant does not any case exceed twenty five years and it does not take him beyond the date of superannuation with effect from 01.12.2008. (Vide Finance Department Notification No.24142/F., dated 04.09.2015). (6) The pension and retirement gratuity of the Government servant retiring under this rule shall be based on the emoluments as specified under Rule 48 and the increase not exceeding five years in his qualifying service not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity.” 11.2. Meticulous reading of said provisions contained in Rule 42 of the Pension Rules would transpire that: (a) A Government servant, having completed 20 years of service, desirous of voluntarily retire from service can make an application to the Appointing Authority; (b) The notice of voluntary retirement does require acceptance by the Appointing Authority, which is granted generally except under certain circumstances enumerated. (c) Such notice for voluntary retirement shall be made “not less than three months in writing”. To seek curtailment such period of three months, W.P.(C) No.31236 of 2023 Page 25 of 107 scope is given to the Government servant (but not the Appointing Authority) vide Rule 42(3). (d) Right to refuse voluntary retirement has been conferred on the Appointing Authority. As per Rule 42(3)(b), the Appointing Authority is given power to relax subject to satisfaction that the curtailment of period of notice will not cause any administrative inconvenience. 11.3. The instant case is not one of refusal of the Appointing Authority to grant voluntary retirement. Under such fact-situation, proviso to clause (b) of Note appended to sub-rule (2) of Rule 42 would have application. Under said proviso it is laid down that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. 11.4. Ergo, it is accepted as argued by Sri Sambit Rath, learned Advocate that it is at the option of the petitioner the notice period can be curtailed but not otherwise. Such curtailment can be allowed, of course, at the discretion of the Appointing Authority on consideration of request for the curtailment of the period of notice of three months on merits. If the W.P.(C) No.31236 of 2023 Page 26 of 107 Appointing Authority is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months. In other words, the Appointing Authority has no option but to wait till notice period elapses, if he does not refuse voluntary retirement. In the case at hand, as is manifest from notice dated 03.07.2023 seeking voluntary retirement (Annexure-1) that the petitioner has specified his willingness to retire voluntarily with effect from 31.10.2023. From the date of 03.07.2023 said effective date for retirement is more than three months. 11.5. Significant it is to take cognizance of the expression “give notice of not less than three months in writing to the Appointing Authority” as employed in Rule 42(1) of the Pension Rules. Acceptance of the application/ notice dated 03.07.2023 before lapse of three months or the date specified by the petitioner intending to retire voluntarily, in essence, frustrates the purport of Rule 42 or renders the avowed object of Rule 42 of the Pension Rules unworkable. It is maintained that the requirement as to “not less than three months‟ in writing” in Rule 42 is a matter of policy and safeguard for the employee. Noteworthy to state that the expressions “within three months” and “not less than W.P.(C) No.31236 of 2023 Page 27 of 107 three months” are two quite different aspects. Taking into consideration the expression as incorporated in Rule 42 of the Pension Rules, the period for the requisite notice as “not less than three months” is willed by rule-making authority and this obligation is to be construed as absolute. The span of notice is, thus, essence of the mandate. The necessity of notice and the span of notice both are integral to the scheme of the provisions contained in Rule 42. The provisions contained in the said Rule cannot, therefore, be split up into essential and non-essential components, the whole of it being mandatory. 11.6. Meaning of “not less than” has been understood as “Complete days; exclusive of named first or last days”. See, Concise Law Dictionary, by P.G. Osborn, published by Sweet and Maxwell, 1927.” 11.7. Where the statute provides that notice of “seven clear days” is required to be given, it would exclude the date of issue of the notice and the date of meeting. [Vide, Shanti Dei Vrs. State of Odisha, 2006 (II) OLR 470 (Ori); Paresh Nath Kuanr Vrs. State of Odisha, 2006 (II) OLR 390; Sarat Padhi Vrs. State, 1988 (I) OLR 80 (Ori) = 65 (1988) CLT 122 (Ori) (FB)]. 11.8. The expression “not less than three months” can be better comprehended from the following discussion W.P.(C) No.31236 of 2023 Page 28 of 107 contained in Bharti Gupta Ramola Vrs. Commissioner of Income Tax, 2012 SCC OnLine Del 2080: “10. We are conscious that in some decisions the expression “not less than” has been interpreted to mean a clear period, excluding the date of service (see Chambers Vrs. Smith, 67 Revised Reports 231, In re Railways Sleepers Supply Company, (1885) 29 Ch.D. 204 (3), Mcqueen Vrs. Jackson, 1903 (2) KB 163, etc.). However, the said cases were where the legislature had fixed time limit, which should not be less than the prescribed days for complying with the requirements of law or to furnish reply. In such circumstances, it has been held that in computation of time, fraction of a day should not be reckoned (see In re Hector Whalling Limited, 1935 All England Reporter, 302 (1936 Ch. 208). Even under the Income Tax Act, 1922, the stipulation not less than 30 days in Section in was Commissioner of Income Tax Vrs. Ekbal and Company, AIR 1945 Bom 316 to mean 30 clear was distinguished from the expression within 30 days, which means within two points of time. Similar views have been expressed in N.V.R. Nagappa Chettiar Vrs. Madras Race Club, AIR 1951 Mad 831, Anokhmal Bhurelal Vrs. Chief Panchayat Officer Rajasthan, Jaipur, AIR 1957 Raj 388, Smt. Haradevi Vrs. State of Andhra Pradesh, AIR 1957 AP 229. interpreted expression days. 22(2) This 11. In T.M. Lall Vrs. Gopal Singh, AIR 1963 P&H 378, (First Rule 4 of the All India Bar Council W.P.(C) No.31236 of 2023 Page 29 of 107 for Constitution) Rules, 1961 had come up consideration. In the said rule, the expressions “not less than” and “not more than” were used. Because of the use of the said words, it was held that the provision referred to complete or entire days intervening between the two terminal days. Accordingly, fraction of day should not be taken into consideration. 12. However, in English language many words have different meanings and a word can be used in more than one sense. Every dictionary gives several meanings to each word. We cannot mechanically apply every meaning given in the dictionary and have to choose an appropriate meaning that the word may carry in the context in which it is used in the legislation. It is the context which determines the meaning of the word (See P.V. Indiresan (2) Vrs. Union of India, (2011) 8 SCC 441). 13. It is appropriate to refer to the decision of the Supreme Court in Commissioner of Income Tax Vrs. Braithwaite and Company Limited, (1993) 201 ITR 343. In the said case, the assessee had obtained a term loan of Rs.50 lacs from a bank vide agreement dated 1st August, 1964. The loan was to be paid in five installments ending on 31st July, 1971. Question arose whether the repayment as stipulated under the agreement was during a period of “not less than” seven years as per the proviso to Rule 1(b) of the second schedule of the Companies (Profits) Surtax Tax Act, 1964. Reversing the judgment of the High Court and accepting the stand of the assessee, it was held W.P.(C) No.31236 of 2023 Page 30 of 107 that a fraction of a day would be counted to determine and decide whether the loan was for a period of “less than seven years” or “more than seven years”. It was held as under: „We are of the view that on a plain reading of the proviso to Rule 1(v), Second Schedule to the Act, it is clear that in order to claim the benefit of the said provision, the borrowed money has to be repaid during the period of more than seven years. The only interpretation which can be given to the expression “during a period of not less than seven years” is that the said period should go beyond seven years. The reasoning is simple. The period of seven years would not be complete till the last “minute” or even the last “second” of the said period are counted. In other words, till the last minute of the seven-year period the period remains less than seven years. In the present case, the agreement was entered into on August 1, 1964. The last instalment was to be paid on July 31, 1971. The seven years were to complete at 12 p.m. (between the night of July 31, 1971, and August 1, 1971). Even if the loan was paid back at 11.59 p.m. on July 31, 1971, the period would be less than seven years by one minute. It is, therefore, obvious that the period of “not less than seven years” can only mean till after the completion of seven years. We, therefore, hold that the repayment of the borrowed amount during the period of seven years does not mean repayment “during a period of not less than seven years”. To claim the benefit under rule 1(v) of the is completed, W.P.(C) No.31236 of 2023 Page 31 of 107 Second Schedule to the Act the repayment of the borrowed money must be during a period which is more than seven years. We find support in the view taken by us in the following cases. In Ramanasari Vrs. Muthusami Naik, (1906) ILR 30 Mad 248, Section 18 of the Madras Rent Recovery Act, 1865 (VIII of 1865), required that, in fixing the day of sale, not less than seven days must be allowed “from the time of the public notice and not less than 30 days from the date of distraint”. The sale was held on the 13th February, but the notice was published on 6th February. It was held that “not less than” means the same as “clear” and seven whole days must elapse between the day of the notice and the day fixed for sale. In Railway Sleepers Supply Co., In re (1885) LJ 54 Ch 720; that the (1885) 29 Ch 204, expression “not less” than a given number of days means “clear days”. It was held that the expression “not less” indicates “a minimum”.‟ it was held 14. Bombay High Court in Ravi Vrs. Collector, Wardah, (2008) 3 Maharashtra Law Journal 758 had examined the expression within a period “not more than one month” used in Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The said words in that an question stipulated and envisaged application should be filed within a period of not more the date of notification of the election result. In view of the word “from”, it was held that the first date had to than one month “from” W.P.(C) No.31236 of 2023 Page 32 of 107 be excluded in view of Section 10 of the Bombay General Clauses Act, 1904.” 11.9. In M.N. Abdul Rawoof Vrs. Pichamuthu, (2000) 3 SCC 121 in the context of explaining the connotation of expression “not less than” it has been observed as follows: “7. As we read the said proviso it appears to us that the expression “not less than Rs.1200” means that the minimum amount of rental value, if it is Rs.1200, then the person would be covered by the proviso and would not be regarded as a debtor. In Stroud‟s Judicial Dictionary, 5th Edn., at p. 1700 it is noted that: „Where a statute prescribes a penalty for an offence of „not less‟ than a stated amount, that is the minimum penalty that justices can impose, notwithstanding that the section, prescribing the penalty, says that the offender „shall be liable‟ thereto; and the power to mitigate given by the Summary Jurisdiction Act, 1879 (C. 49) S. 4, was in such a case qualified so that mitigation could not go below such minimum (Osborn Vrs. Wood Bros., (1897) 1 QB 197 = 66 LJQB 178 = 76 LT 60)‟. 8.