Mukhtar Ahmad Khan vs State Of U.P. And 4 Others
2017 Latest Caselaw 5336 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 10223 of 2016
 

 
Petitioner :- Mukhtar Ahmad Khan
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Neeraj Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ganesh Datt Mishra
 

 
Hon'ble Saumitra Dayal Singh,J.

Heard Sri Neeraj Kumar Srivastava, learned counsel for the petitioner and Sri Ganesh Datt Mishra, learned counsel for the respondents.

This writ petition has been filed by the petitioner against the order dated 14/20.01.2016 by which the petitioner's application for grant of voluntary retirement has been rejected. The only reason for rejection given in the impugned order is that the petitioner is working against the sanctioned post and therefore his application for grant of voluntary retirement has been rejected.

In this regard, it has been stated, the petitioner was working as a Lab Assistant at Pradeshik Cooperative Dairy Federation Ltd. (hereinafter referred to as the Federation), since 15.02.1986. Under Regulation 28 of the U.P. Cooperative Dairy Federation Employees Service Regulations, 2010, it is provided, the voluntary retirement can be given to the employees of the Federation subject to fulfillment of conditions. For ready reference, Regulation 28 reads as under:-

"28. Voluntary retirement can be given under following conditions, with the prior consent of the Registrar.

(a) An employee who has completed 10 years of service or has attained the age of more than 40 years, may on request in writing take voluntary retirement.

(b) The manager of Federation/Union will have the right to reject the voluntary retirement on reasons to be given in writing.

(c) The following retirement benefits shall be availed by the employee taking by voluntary retirement:-

(1) The balance amount due in his P.F. Account as per E.P.F. Regulations.

(2) Amount equal to earned leave salary in the account of employee as per rules of Federation/Union.

(3) Amount of gratuity as per Gratuity Act or Gratuity Scheme applicable to employee.

(4) Salary for the duration of notice to one month or three months, as the case may be, as per service conditions applicable on the employee.

(d) Besides, an employee whose application for voluntary retirement has been accepted, shall be entitled for payment of ex-gratia sums equal to pay emoluments (pay and D.A.) of one and half month for each year of service fully completed, or an amount arrived at by multiplying. The monthly pay emoluments of the employee at the time of retirement by the number of months remaining before the normal date of his retirement on completion of superannuation, whichever is less.

For example, if an employee completes 24 years of service and only one year's service is left for his normal retirement then an ex-gratia payment equal to emoluments of 12 months only shall be paid to him and not emoluments for 36 months."

Admittedly, in pursuance of the aforesaid regulation, Voluntary Retirement Scheme was introduced by the Federation on 24.09.2015. Under clause 1 of that scheme, it was further provided, the voluntary retirement applications received under the scheme would be considered in order of seniority of the employees and that preference would be given to higher seniority of an applicant.

Again admittedly, the petitioner applied 22.10.2015 for voluntary retirement, which application has also been annexed with the writ petition.

Thereafter, the petitioner felt aggrieved because certain persons who were junior to him were granted voluntary retirement whereas the petitioner was not. He then filed a representation before the General Manager and the Managing Director of the Federation. There is some dispute as to the correct version of the representation thus filed by the petitioner. While the petitioner has annexed one copy of document purporting to be copy of that representation, the respondent by means of counter affidavit has filed a copy of another document purporting to the representation received by it.

In the copy of document filed with the writ petition only prayer appears to be for grant of voluntary retirement. However, according to the document filed with the counter affidavit, in the first place, the petitioner appears to have applied for voluntary retirement and in the alternative he has prayed for payment of arrears of salary and regular payment of future salary.

In view of the fact, both versions of the representation claimed by the parties, though different in part, have the first/common prayer to be granted voluntary retirement, it cannot be disputed, the petitioner applied for voluntary retirement. It is this prayer, which has been rejected by the impugned order.

The reason given in the order to reject the petitioner's application being that he was working on a sanctioned post, is wholly irrelevant. The Voluntary Retirement Scheme in the first place could have been applicable only to an 'employee' of the Federation. Though the term 'employee' has not been defined in the Regulation, the classification of employees has been made in clause 3 thereof including either permanent employees or probationers.

Probationers have by their status limited rights and they cannot be contemplated to be entitled to benefit of any voluntary retirement scheme. Thus the Regulation stipulated grant of voluntary retirement to permanent employees only being such employees who were appointed on permanent basis or who had been declared as permanent employees on successful completion of entire probation period.

Then, the scheme itself stipulated grant of voluntary retirement to such permanent employees who had completed ten years of service and forty years of age. It was in this context the voluntary retirement scheme contemplates preferential consideration/treatment to applicants according to their seniority i.e. interse seniority amongst permanent employees. Thus, the application of the petitioner for grant of voluntary retirement has been rejected on an irrational and irrelevant consideration.

Then, it is also the case of the petitioner that persons junior to him have been granted voluntary retirement. In this regard, he has named certain persons in the representation relied upon by him. He has also named those persons in paragraph 12 of the writ petition. In this regard, contents of paragraph 12 are quoted below:-

"That it is pertinent to make a mention here that the seniority list of Lab Assistant was prepared by the PCDF on 04.05.2002 in which petitioner was placed at serial no. 30 and Mr. Dushayant Kumar (placed at serial no. 32), Kuldeep Kumar (placed at serial no. 34), Sanjay Kumar Bansal (serial no. 36), Suresh Kumar Sharma (serial no. 52), Sushil Chandra (serial no. 54), Ashok Kumar Tripathi (serial no. 63), Raj Kishor Yadav (serial no. 68), Rajendra Kumar (serial no. 74), Dinesh Vikram Singh (serial no. 76). That the above named employees who are juniors to the petitioner by age and by seniority, but the respondent no. 2 illegally, against the VRS Scheme rejected the VRS of the petitioner. A Copy of seniority list of Lab Assistant is being filed here with as Annexure No. 5 to this writ petition."

In reply to the same, the respondents have in paragraph 9 of the counter affidavit has stated as below:-

"That the contents of para 11 and 12 of the writ petition are not correct as stated hence denied, in reply thereto it is stated that Annexure - 4 to the writ petition the alleged representation dated 28.01.2016 in which the petitioner has alleged that Junior Lab Assistant namely Dushyant Kumar, Kuldeep Kumar, Sanjay Kumar Bansal, Suresh Kumar Sharma, Sushil Chandra, Ashok Kumar Tripathi, Raj Kishore Yadav, Rajendra Kumar and Dinesh Vikram Singh were given voluntary retirement, is not received in the office of PCDF. Though another representation dated 28.01.2016, which was addressed to the Managing Director, PCDF as well as General Manager (Administration), PCDF were received through speed post no. ARU1899963366 dated 19.01.2016 IN and ARU 189996370 IN dated 29.01.2016 were received. True copy of representation received in the office of PCDF along with envelop and photocopy of receipt are collectively being annexed as Annexure-CA-1 to this affidavit. It is further stated that Scheme of VRS which provides that Senior employee will be considered preferably, this does not mean that every senior employee will be given VRS. The petitioner is needed in the interest of Institution, as such the

petitioner was not given voluntary retirement. The order refusing to grant voluntary retirement to the petitioner is just, proper and in accordance with law."

Thus, the factual averment made by the petitioner that his juniors had been granted voluntary retirement while he has been denied the same, has not been rebutted or denied.

Lastly, reliance has been placed by learned counsel for the respondent on averment made in the counter affidavit that the petitioner has not been granted voluntary retirement in the interest of the Federation. In the first place, such plea cannot be entertained. Under Regulation 28, the Manager of the Federation/Union could reject the application of the petitioner for grant of voluntary retirement for reasons to be given in writing. That reason is contained in the impugned order. It is one - the petitioner was working on a sanctioned post. No other reason has been assigned. Therefore, the impugned order cannot be supported on any other or supplemental reasoning introduced by means of the counter affidavit. It is wholly impermissible.

Second, it is seen under Regulation 28 (a) of the Regulations, only such employees are eligible for voluntary retirement who may have completed 40 years of age and 10 years of service. This read with the clause in the Scheme for voluntary retirement introduced by the Federation provides for relative preference in treatment to be given to applicants placed higher in seniority. It clearly implies a reasoning inherent in the Scheme to first allow applications of such eligible applicants who are placed higher in interse seniority. Thus the normal rule to be applied would be to first grant voluntary retirement to such applicant employee who is placed highest in the seniority list and then consider the case of the next senior most employee in that category.

In this context, by virtue of Regulation 28(b) the right given to the Manager of the Federation/Union to reject an application for reasons to be recorded in writing, necessarily requires application of mind to this aspect. The reason must specify, why on facts, a particular applicant though senior to others in his category, may not be granted voluntary retirement first. No such exercise has been done in this case. No facts in this regard have been stated in the counter affidavit either.

In that view of the matter, the impugned order dated 14/20.01.2016 cannot be sustained and is hereby set aside. the matter is remitted to the respondent no. 2 Managing Director, Pradeshik Cooperative Dairy Federation, Lucknow who may now proceed to decide the petitioner's representation as annexed with the counter affidavit. He will first consider the prayer made by the petitioner for grant of voluntary retirement. It is made clear, while deciding the aforesaid representation, the said authority will decide the same in accordance with the Regulations and scheme for grant of voluntary retirement, dated 24.09.2015 and observations made above. If persons junior to petitioner have been granted voluntary retirement, the petitioner's application would be considered accordingly.

The above exercise may be completed by the said respondent-authority within a period of two months from the date of production of certified copy of this order before the said authority.

With the above, the instant writ petition is allowed accordingly.

Order Date :- 11.10.2017

A. Singh