THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.23810 OF 2023
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus declaring the action of the 2nd respondent in not accepting and approving the application of the petitioner dt.01.07.2023 for voluntary retirement with effect from 31.07.2023 in terms of the Second Proviso to Rule 43(1) of the Telangana Revised Pension Rules, 1980 as well as the impugned rejection order Rc.No.2317/2023-E1 dt.12.09.2023 issued by the 2nd respondent, as illegal, without jurisdiction and violative of Articles 14, 16 and 21 of the Constitution of India and to set aside the same and consequently to direct the respondents to accept and approve the voluntary retirement application of the petitioner dt.01.07.2023 and to declare the petitioner as retired with effect from 31.07.2023, i.e., the date mentioned in the application for voluntary retirement with all consequential benefits and to pass such other order or orders in the interest of justice.
W.P.No.23810 of 2023 2
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner joined the service of Government of Andhra Pradesh in the year 1995 and she is presently working as Assistant Director of Handloom and Textiles Department, Hanamkonda. The petitioner has applied for voluntary retirement on 01.07.2023 requesting to treat her retirement with effect from 31.07.2023. The respondents have received the said application on 14.07.2023. The petitioner has obtained the 'no due certificate' on 19.07.2023 and also a certificate on 25.07.2023 to the effect that there are no disciplinary cases against her. The 2nd respondent, vide letter dt.14.08.2023, has also recommended the case of the petitioner for voluntary retirement from Government service. Since the petitioner intended to contest the elections and no decision was taken by the 1st respondent on her voluntary retirement application, the petitioner has approached this Court and filed the present Writ Petition.
3. Vide order dt.05.09.2023, this Court had directed the 2nd respondent to consider the application of the petitioner and take a decision thereon and communicate the same to the petitioner within a period of one week from the date of the order. Consequent thereto, the respondents have passed the impugned order dt.12.09.2023 rejecting the W.P.No.23810 of 2023 3 request of the petitioner for voluntary retirement on the ground that her services are required for weavers' community in the State. Challenging the same, an amendment petition in I.A.No.2 of 2023 has been filed which has been allowed and therefore, the letter dt.12.09.2023 also is impugned in this Writ Petition.
4. Learned counsel for the petitioner, while reiterating the submissions made in the writ affidavit, has submitted that when the application for voluntary retirement is made under Rule 43 of the Telangana Revised Pension Rules, 1980, the respondents ought to have taken into consideration only whether there were any dues from the petitioner or whether there were any disciplinary proceedings pending against the petitioner. After issuing 'no objection certificate' and also 'no disciplinary cases certificate' in favour of the petitioner, the respondents should have undertaken the task of accepting the application and could not have rejected the same in public interest or in weavers' interest as stated in the impugned order.
5. Learned Government Pleader, on the other hand, relied upon the averments made in the counter affidavit and submitted that under Rule 43 and Sub-Rule (4) thereof, the Government may accept or reject the W.P.No.23810 of 2023 4 application for voluntary retirement within the notice period, i.e., 3 months in this case which is yet to expire. It is submitted that it is only as per the directions of this Court that the application of the petitioner has been considered and thereafter, in public interest, it has been rejected. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and others Vs. Achal Singh1 to submit that the Government can reject the application of the employee seeking voluntary retirement if there is public interest involved in the matter.
6. The learned counsel for the petitioner, however, submitted that the said decision is not strictly ipso facto applicable to the present case as the facts in the said case are distinguishable. He submitted that in the case of State of Uttar Pradesh and others Vs. Achal Singh (1 supra), the rules provided for rejection of voluntary retirement application in public interest, whereas in the Telangana Revised Pension Rules, 1980, there is no such provision. He further submitted that in the said case, the Hon'ble Supreme Court was considering the case of the doctors who wanted to resign en bloc and it was in such circumstances, the Apex 1 (2018) 7 SCC 578 W.P.No.23810 of 2023 5 Court has held that the health of the public was also an issue to be considered before accepting or rejecting the application for voluntary retirement.
7. Having regard to the rival contentions and the material on record, this Court finds that Rule 43 of the Telangana Revised Pension Rules, 1980 deals with voluntary retirement of Government Servants. For the sake of convenience and ready reference, the same is reproduced hereunder:
"43. Retirement on completion of 20 years of qualifying service :--(1) A Government servant shall have the option to retire from service voluntarily after he has put in not less than twenty years of qualifying service:
Provided that he gives a notice in writing of his intention to retire voluntarily of at least three months to the authority which has power to make a substantive appointment to the post from which he retires:
Provided further that, a notice of the less than three months may also be accepted by the competent authority.
Provided also that, not withstanding anything in Rule 21, extraordinary leave availed on any ground other than for prosecuting higher studies within the State/outside the State/country without receiving any payment except stipends during the period of such leave from any source, but including on medical certificate, shall not be W.P.No.23810 of 2023 6 reckoned as qualifying service for purposes of arriving at the qualifying service of twenty years referred to in this rule.
Note :--A Government servant who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority:
Provided that the request for withdrawal shall be within the intended date of his retirement.
(2) A Government servant retiring under sub-rule (1) shall be entitled to a retiring pension :
Provided that such retiring pension shall be subject to the provisions of the Rules 6, 8 and 9.
(3) Where a Government servant opts to retire under sub-rule (1) while on leave not due, retirement in such cases shall take effect from the date when the leave not due commenced and the employee shall refund the leave salary paid in respect of such leave not due availed of by the employee.
(4) A Government servant opting for retirement under sub-rule (1) shall not retire unless the notice given by him as per proviso to sub-rule (1) is accepted by the competent authority :
Provided that the competent authority shall issue an order before the expiry of the notice period accepted or rejection of the notice.
(5) Government servants opting for retirement under sub-rule (1) shall be entitled to addition of service for purpose of pension, a W.P.No.23810 of 2023 7 service equal to the difference between the qualifying service actually put in by him and the service he would have put in on the date of superannuation had he continued in service or the difference between such qualifying service and thirty three years, whichever is less, subject to the condition that such addition shall be limited to the maximum of five years :
Provided further that such Government servant shall not be eligible for weightage under Rule 29 of these rules.
(6) The option under sub-rule (1) shall not be admissible to a Government servant on deputation to autonomous bodies/ corporations/companies/public sector undertakings or institutions wholly or substantially owned by Government who get absorbed in such undertakings/autonomous bodies or institutions, as the case may be.
(7) A Government servant retiring voluntarily under sub-rule (1) of this rule shall be subject to Rule 10 of these rules.
Note :--Orders permitting/requiring a Government servant to retire after completing twenty years qualifying service should, as a rule, not be issued until the fact that the officer has indeed completed qualifying service for twenty years has been verified in consultation with Pay and Accounts Officer, Hyderabad/Head of Department/Head of Office, as the case may be, who maintains Service Particulars/Book of the Government servant, concerned."
8. From a literal reading of the above Rule, it is clear that once the Government Servant puts in not less than 20 years of qualifying service, he has the option of retiring from service voluntarily and the only other W.P.No.23810 of 2023 8 requirement is that he has to give notice in writing of his intention to retire voluntarily of at least three months to the authority which has the power to make a substantive appointment to the post from which he retires. Further, a notice of less than three months may also be accepted by the competent authority. There is no other restriction or requirement under the said Rule which has to be satisfied. However, it is settled law that a person shall be deemed to have retired only when his application has been accepted by the authority within the time allowed under the Rules. The Government may either accept or reject the application within the time provided under the Rules, i.e., within 3 months under Rule 43 of the Telangana Revised Pension Rules, 1980. Even though the Government has power to either accept or reject the application, it can do so only under the circumstances mentioned in the Rules.
9. The learned counsel for the petitioner has drawn the attention of this Court to the judgment of this Court in the case of The State of Andhra Pradesh rep. by its Secretary, Infrastructure and Investment Department, Hyderabad and another Vs. The Andhra Pradesh Administrative Tribunal at Hyderabad rep. by its W.P.No.23810 of 2023 9 Registrar and another 2, wherein a Division Bench of this Court has analysed Rule 43 of the Revised Pension Rules, 1980 and has held that the said Rule confers discretion on the competent authority to reject the request for voluntary retirement, but that the Rule must be read in conjunction with the scheme and not in derogation thereof. It was observed that if it were the intention of the State Government which framed the Pension Rules that they must override voluntary retirement scheme, there would have been a provision, such as a non obstante clause and in the absence of incorporation of such a provision, no discretion other than the one which is vested in the competent authority under sub-clause (vii) of Clause-3 could be read into the Rules. The Court was considering whether there is any conflict between the Pension Rules and the Voluntary Retirement Scheme and it was held that the competent authority is bound to act within the confines of the voluntary retirement scheme, framed under G.O.Ms.No.413 dt.29.11.1977.
10. As regards the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh and others Vs. Achal Singh (1 supra), relied upon by the learned Government Pleader, this Court finds that it was in 2 (2016) 5 ALD 679 (DB) W.P.No.23810 of 2023 10 respect of service rules in the State of U.P. and the said rules are not in pari materia similar to the Rules of the Telangana Revised Pension Rules, 1980. Further, as rightly pointed out by the learned counsel for the petitioner, there was a provision in the said Rules itself that the application for voluntary retirement can be rejected where public interest is involved. Even if the said cause of public interest is to be taken into consideration, in the present case, it is seen that the petitioner has been on leave for almost one and a half years and there is another officer posted to look after the work of her post. Further, it is also noteworthy that the Government has not taken any steps to cancel the leave or require the petitioner to attend to her duties for the last one year. Therefore, it appears that the respondents have taken the cause of public interest only to deny the application of the petitioner.
11. In view of these facts, this Court is inclined to set aside the impugned order dt.12.09.2023 and to direct the respondents to pass orders accepting the voluntary retirement application of the petitioner dt.01.07.2023 with effect from the date which is mentioned in the application, i.e., 31.07.2023 with all consequential benefits. The W.P.No.23810 of 2023 11 respondents are directed to pass orders within a period of one week from the date of receipt of a copy of this order.
12. The Writ Petition is accordingly allowed. No order as to costs.
13. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 13.10.2023 Note: Issue C.C. by 16.10.2023 B/o Svv