Allahabad High Court
Devesh Kumar Dwivedi vs High Court Of Judicature At ... on 12 October, 2018
Bench: Manoj Misra, Ved Prakash Vaish
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Case :- WRIT - A No. - 40386 of 2016
Petitioner :- Devesh Kumar Dwivedi
Respondent :- High Court Of Judicature At Allahabad And 2 Ors.
Counsel for Petitioner :- Tarun Agrawal,Ashok Khare,Ram Sheel Sharma,Ravi Kant
Counsel for Respondent :- Manish Goyal,G.K. Singh
Hon'ble Manoj Misra,J.
Hon'ble Ved Prakash Vaish,J.
(Delivered by Hon'ble Manoj Misra, J.)
The present petition seeks quashing of the order dated 13.04.2016 and 09.05.2016 passed by the Hon'ble Chief Justice, High Court of Judicature at Allahabad (for short High Court) by which petitioner's application seeking voluntary retirement with effect from 01.09.2016 has been accepted and his prayer to withdraw the application and recall the order has been rejected. The petitioner has also prayed for a direction to command the High Court Establishment not to give effect to the orders dated 13.04.2016 and 09.05.2016 and to allow the petitioner to work with effect from 01.09.2016 and pay salary and other service benefits to the petitioner, month to month.
To have a clear understanding of the controversy at hand, it would be appropriate for us to give a brief narration of the facts giving rise to the petition.
The petitioner was appointed as System Analyst-cum- Programmer on 01.06.1996 and was thereafter promoted as System Manager, Computer System, High Court, Allahabad. On 12.04.2016, the petitioner moved an application seeking voluntary retirement with effect from 01.09.2016. The contents of the application seeking voluntary retirement are extracted below:-
"To
The Registrar General
High Court
Allahabad.
Subject: Voluntary retirement w.e.f. 01.09.2016
Sir,
I joined the establishment of the High Court on 01.06.1996 and served this institution for the last about 20 years with utmost sincerity, devotion and honesty. I never cared about the working hours, holidays. Attention was work and only work. During this period, numerous application areas were taken up for the Computerization successfully with a focus in the growth of the Computerization at Allahabad High Court and its Subordinate Courts of U.P.
Other Cadres in the High Court have grown horizontally as well as vertically tremendously with the increase of the strength of Hon'ble Judges during last 20 years. But, Computer Cadre has not been given due attention.
So many issues relating to fixation of salary, promotion, ACP etc, of Computer Cadre Officers/staff of the High Court and e-Court staff are pending consideration and undue delay in redressal of the issues is causing the frustration amongst the Computer Cadre officers and staff. Such matters of other Cadres are being taken up promptly and in routine matter. The only concern which is shown by others is about getting facilitation from the Computer Centre. Due to lesser number of staff and huge volume of work of various nature in different wings of the Computer Centre, officers and staff are overburdened. Problem was brought to the notice to the superior authorities but in vain. Officers and staff is able to leave office only 8.00-9.00 p.m. Everyday and not able to fulfill their family obligations. Judicial Officers deputed in the High Court for looking after Computerization activities are merely interested in calling themselves Incharges while responsibility is fixed on Computer Centre officers/staff either by forming the sub-committees or by marking the notes for the report.
Brick batting has increased so much and working atmosphere is now not congenial.
In light of above, I am feeling uncomfortable and therefore wish to take Voluntary Retirement w.e.f. on 01.09.2016. (marked as "A")
You are therefore requested to place the matter before appropriate authority for seeking approval in the matter.
Thanking you,
Yours Sincerely
(D.K. Dwivedi)
System Manager
12.04.2016
Copy to:
1. P.S. To Hon'ble Chairman, Computerization Committee for information and placing the matter before his Lordship.
I am hereby handing over all the keys of Computer Centre to Sri Ashwini Kumar, Senior System Analyst (Senior most technical officer of the Computer Centre) as I have submitted E.L. Application for the period 12.04.2016 to 31.08.2016 and Voluntary Retirement from Service w.e.f. 01.09.2016.
Stock Register, files and hardware inventory is in the custody of concerned officers/staff of the office.
Sd/- Sd/-
(Ashiwini Kumar) (D.K. Dwivedi)
Senior System Analyst System Manager
12.04.2016 12.04.2016"
On the above application, the Hon'ble Chief Justice, on 13.04.2016, passed the following order:-
"Discussed with members of the computer committee. The grievances are without substance. The request made by the officer is accepted in view of "A" below. This is subject to usual departmental clearance. Mr. Dwivedi to hand over charge forthwith to next senior officer together with OSD. Sri Rawat to take on inventory before charge is handed."
Pursuant to above, an Office Order No. 437 dated 13.04.2016 was issued by the Registrar (Selection & Appointment)/Establishment, which is extracted below:-
"HIGH COURT OF JUDICIATURE AT ALLAHABAD
ESTABLISHMENT SECTION
OFFICE ORDER
No. 437/Establishment : Allahabad : Dated April 13, 2016
With reference to his application dated 12.04.2016 regarding Voluntary retirement w.e.f. 01.09.2016, Sri D.K. Dwivedi, (Emp No. 564), System Manager, High Court, Allahabad, is hereby informed that his said application for seeking voluntary retirement w.e.f. 01.09.2016 has been considered and accepted by Hon'ble The Chief Justice vide His Lordship's order dated 13.04.2016
Sri D.K. Dwivedi, is further directed to hand over charge forthwith to next senior Officer together with OSD (Computers) to take over inventory before charge is handed over.
REGISTRAR
(SELECTION & APPOINTMENT)/ESTABLISHMENT"
Pursuant to above office order, the charge was handed over by the petitioner as would be apparent from the handwritten note dated 13.04.2016 of the petitioner addressed to the OSD (Computers), which is extracted below:-
"O.S.D. (Computers)
In terms of office order No. 437/Establishment : Allahabad : Dated : April 13, 2016, I am required to hand over charge forthwith to next senior officer together with O.S.D. (Computers) to take over inventory before charge is handed over.
I have already handed over all keys of Almirahs available with me to Senior most technical officer of the Computer Centre.
You are therefore kindly requested to kindly acknowledge the same and check all the keys and Almirah and Stock register available with the officers/staff of the Computer Centre as per the office order.
Sd/-
D.K. Dwivedi
13/04/2016
System Manager"
After the application of the petitioner seeking voluntary retirement had been accepted and charge had been taken over, in the evening of 13.04.2016, the petitioner moved an application seeking to withdraw his application dated 12.04.2016 and cancel the acceptance order dated 13.04.2016. The contents of the application dated 13.04.2016 are extracted below:
"To
The Registrar General
High Court
Allahabad.
Subject : Request for cancellation of order dated 13.04.2016 of Hon'ble the Chief Justice regarding approval of my Voluntary Retirement from service w.e.f. from 01.09.2016
Sir,
Kindly refer to office order no. 437 dated 13th April, 2016 communicating the acceptance of application dated 12.04.2016 of undersigned regarding the sanction of Voluntary Retirement w.e.f. 01.09.2016.
It is to be humbly submitted that Computer Centre including undersigned was under tremendous pressure of work due to timely completion of the work assigned besides attending various nature of problems of all the users and stakeholders of the Court. Due to increased pressure of work, I had moved application dated 12.04.2016 seeking Voluntary Retirement w.e.f. 01.09.2016.
I wish to withdraw my application dated 12.04.2016 and request your goodself for obtaining orders for the cancellation of order dated 13.04.2016 of Hon'ble the Chief Justice regarding approval of my Voluntary Retirement from service w.e.f. from 1.9.2016. I assure to continue to serve our great institution with sincerity and utmost devotion.
Thanking you,
Yours sincerely
(D.K. Dwivedi)
System Manager
13.04.2016
Copy to:
P.S. To Hon'ble Chairman, Computerization Committee for placing the matter before His Lordship. "
The said application dated 13.04.2016 was rejected by Hon'ble Chief Justice. The order rejecting the application was communicated to the petitioner on 09.05.2016. The order rejecting the application of the petitioner reads as under:-
"ORDER
I have considered the report of the Computerization Committee.
Fundamental Rule 56 (c) provides as follows:
"56(c). Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years or after he has completed qualifying service of twenty years.
(d) The period of such notice shall be three months:
Provided that -
(i)...................;
(ii)..................;
Provided further ............
Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority."
The issue of when the appointing authority can grant permission to withdraw an application seeking voluntary retirement was examined by the Supreme Court in Balram Gupta vs Union of India & Anr : 1987 (Supp) SCC 228. The Supreme Court examined the provisions of Rule 48-A of the Central Civil Services (Pension) Rules, 1972 which are as follows:
"48-A. 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 Sub-rule (1) shall require acceptance by the appointing authority.
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 of expiry of the said period."
Rule 48-A(4) prevents the withdrawal of a notice of voluntary retirement except with the approval of the authority and is as follows:-
"(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority"
Rule 48-A (4) is similar to the proviso to Fundamental Rule 56 (c) which has been extracted in the report of the Committee.
In the case decided by the Supreme Court, noted above, Balram Gupta had sought voluntary retirement with effect from 31 March 1981 by a letter dated 24 December 1980. By an order dated 20 January 1981 he was allowed to retire voluntarily with effect from 31 March 1981. However, a letter dated 31 January 1981 was submitted by him seeking withdrawal of his notice for voluntary retirement. He was not allowed to do so and was relieved by an order dated 31 March 1981. In the said order it was stated that his request contained in the letter dated 31 January 1981 for withdrawal of his application for voluntary retirement " has also been considered and found not acceptable". In this context, the guidelines framed by the Central Government were examined by the Supreme Court. The guidelines provide that a Government servant who has given a notice of retirement but seeks, during the currency of the notice, to return to duty, has no such right. There would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. The Supreme Court found that though Balram Gupta had not given any reason in the notice for his retirement except stating that he sought voluntary retirement but the facts indicated that there had been a material change. The Supreme Court observed that no valid reason had been given for withholding the permission. The Supreme Court has observed, elucidating on the principles governing such a case that :
"The normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority."
Moreover the appointing authority has to act rationally and objectively:
"If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally....."
The Supreme Court has held that there is a difference between an act of resignation and a notice of voluntary retirement. In UCO Bank & Ors vs. Sanwar Mal : (2004) 4 SCC 412, the Supreme Court observed that the words 'resignation" and "retirement" carry different meanings. An employee can resign at any point of time, even on the day after his appointment, but in the case of retirement only after attaining the age of superannuation or in the case of "voluntary retirement" on completion of qualifying service. Under the Regulations, the words "resignation" and "retirement" have been used for different purposes and carry different meanings. There are different yardsticks and criteria for submitting resignation vis-a-vis voluntary retirement and acceptance thereof. The same view was expressed by the Supreme Court in Reserve Bank of India & Anr vs. Cecil Dennis Solomon & Anr : (2004) 9 SCC 461. The Supreme Court observed that voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service and though both involve voluntary acts, they operate differently. The basic distinction is that a resignation can be tendered at any time but voluntary retirement can only be sought after completing the prescribed period of qualifying service. In the case of a resignation, permission or notice is not mandated while in the case of voluntary retirement, the permission of the employee is a requisite condition.
An employee does not have a vested right to seek voluntary retirement. It can be sought only if the statute or service rules so provide. The submission of the application and its withdrawal have to be in accordance with the statute or service rules, as the case may be.
In the present case, there are two aspects which are relevant and germane. Firstly, the reasons indicated in the application seeking voluntary retirement indicate that Sri D K Dwivedi, Systems Manager inter alia had grievances about the conditions of service. Beside this, he was unhappy about judicial officers being deputed to the High Court for looking after computerization activities who, in his description "are merely interested in calling themselves incharges". The Computerization Committee has noted in its report that prior to his letter tendering a notice of voluntary retirement dated 12 April 2016, the Chairperson of the Committee and Justice Anjani Kumar Mishra had discussed the behaviour and conduct of Sri Dwivedi with him. Sri Dwivedi had unilaterally changed the established procedure of routing files through the OSD (Computers) and started placing them directly to the Registrar General. The Committee directed Sri Dwivedi to ensure that files had to be marked to the OSD (Computers). Despite this, he did not ensure compliance of the directions and marked the files directly to the Registrar General of the High Court. This assumes significance because in his notice of voluntary retirement, Sri Dwivedi takes exception to the deputation of judicial officers for looking after computerization activities and makes an allegation against them to the effect that they are interested "in calling themselves incharges". The notice of voluntary retirement indicates that Sri Dwivedi was persisting in his refusal to accept the role and position of the OSD (Computers) who is brought on deputation by the High Court, despite being counseled by two of the judges on the Committee.
Now it is in this background that the letter withdrawing the notice of voluntary retirement has to be considered. Sri Dwivedi's letter withdrawing his notice does not indicate that upon due reflection, he had found his behaviour to be inappropriate for or that realization had dawned that he was bound to abide by the orders of the Computerization Committee. Sri Dwivedi, as an officer of the High Court, is bound by the discipline of the organization. He sought to unilaterally alter the established practice of routing files through the OSD (Computers). That practice is consistent with the role and position of the OSD (Computers), who is an officer of the Higher Judicial Service brought on deputation by the High Court having due regard to his knowledge of the subject. The notice of withdrawal is again silent on that aspect. Sri Dwivedi has hence persisted in his belief that he is not bound to abide either by the requirement of routing files through the OSD (Computers) or by the directions of the Computerization Committee. There is hence no material change in the circumstances warranting withdrawal of the notice of voluntary retirement.
The second aspect which the appointing authority has to take into consideration is the interest of the administration of the High Court. The proviso to rule 56 of the Fundamental Rules specifically provides that a notice once given by a government servant seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority. The requirement of obtaining the permission of the appointing authority indicates that the withdrawal of a notice of voluntary retirement does not lie in the absolute discretion of the officer. Yet the appointing authority is duty bound to apply its mind reasonably and rationally. The requirement of the permission of the appointing authority is, as the Supreme Court observed in Balram Gupta, a salutary requirement. The interests of the administration have a vital bearing on whether the notice of voluntary retirement should be allowed to be withdrawn.
The requirement of routing files through the OSD (Computers) is not a meaningless administrative formality. The OSD (Computers) is a vital presence in overseeing the functioning of the Computer department. Projects of the High Court, involving IT activities, involve large public funds and an accountability to the public exchequer. An employee of the High Court cannot at his discretion alter administration systems and processes.
In the present case, the facts which have been discussed demonstrate that it is not in the interests of the administration that the notice of voluntary retirement should be allowed to be withdrawn. Sri Dwivedi was counseled by the Chairperson and by a member of the Computerization Committee and was directed to observe the well established procedure which is in place in relation to the role and position of the OSD (Computers). Sri Dwivedi made an issue of the OSD (Computers) being a judicial officer brought on deputation in his notice of voluntary retirement. His withdrawal does not reflect any change that would suggest that upon reflection, he has accepted the need to maintain discipline. The administration of the High Court cannot be allowed to function in this manner. Sri Dwivedi cannot in these circumstances be permitted to withdraw his notice of voluntary retirement.
Accordingly, and for these reasons, I accept the report of the Computerization Committee. The request made by Sri Dwivedi in his communication dated 13 April 2016 is declined.
CHIEF JUSTICE
(Emphasis Supplied)"
In the context of the facts narrated above, it would be apposite to notice the relevant provisions governing the service conditions of a System Manager, the post which the petitioner held prior to the passing of the impugned order.
In exercise of the powers conferred under Article 229 (2) of the Constitution of India, the Chief Justice, after approval of the Governor, was pleased to make "The Allahabad High Court Computer Cadre Service Rules, 2010 (in short Rules 2010)." Recruitment to the post of System Manager is as per Rule 4 of the Rules, 2010, which provides that System Manager shall be appointed by promotion on the basis of seniority-cum-merit from amongst Senior System Analyst, who have completed 4 years of satisfactory service or from amongst such Systems Analyst, who have completed 11 years of satisfactory service. Rule 15 of the Rules 2010 provides as follows:-
"15. Regulation of other matter:
(1) Subject to any modification in writing by the Appointing Authority the members of the Service shall be governed by the rules, regulations, and orders applicable to the Government servants holding corresponding posts in the State Government in respect of matters not provided herein.
(2) In case of any doubt regarding any post being corresponding to a post in the State Government, the matter will be decided by the Appointing Authority."
As the Rules 2010 do not specifically provide for the procedure relating to voluntary retirement, and sub-rule (1) of Rule 15 of the Rules 2010 specifically provide that the members of service shall be governed by the Rules, Regulations and Orders applicable to the Government servants holding corresponding posts in the State Government in respect of matters not provided therein, Fundamental Rule 56 (c), as applicable to Government servants in the State of U.P., would be applicable, which provides as follows:-
"56(c). Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years or after he has completed qualifying service of twenty years."
The procedure as per which notice under clause (c) of the Fundamental Rule 56 is to be given is provided in clause (d) thereof which reads as under:
"(d) The period of such notice shall be three months:
Provided that -
(i)...................;
(ii)..................;
Provided further ............
Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority."
We have heard Sri Ram Sheel Sharma for the petitioner; and Sri Manish Goyal for the respondents.
Learned counsel for the petitioner submitted that since the voluntary retirement had to take effect from 01.09.2016, the master- servant relationship between the petitioner and the respondents by acceptance of the notice seeking voluntary retirement did not sever on 13.04.2016 as such the petitioner had right to withdraw the application before the master-servant relationship got severed. It has been urged that since the petitioner had, in categorical terms, withdrawn his application dated 12.04.2016 before severance of master-servant relationship, the order rejecting the application and discharging him from service with effect from 01.09.2016 is illegal and unjustified.
In addition to above, Sri Sharma submitted that Fundamental Rule 56 (c) would be applicable only where the incumbent had completed qualifying service of 20 years therefore, as qualifying service of 20 years was not completed by the date 12.04.2016, the application seeking voluntary retirement was not maintainable. Hence, no action could have been taken on the said application. Even assuming that such application could be moved in advance, it would be deemed maintainable only upon completion of qualifying period of service i.e. 20 years. Hence, before expiry of such period, the petitioner had indefeasible right to withdraw the same. It has been urged by him that the petitioner had joined service on 01.06.1996 and therefore 20 years of sevice would have been complete on 31.05.1996. Therefore, the application seeking voluntary retirement before completion of 20 years was a void act which could not have been acted upon.
In support of his submission that before severance of master- servant relationship, an application seeking voluntary retirement can be withdrawn at any time, the learned counsel for the petitioner placed reliance on decisions of the apex court in the following cases:-
(i) Balram Gupta vs. Union of India & Anr. : 1987 (Supp) SCC 228;
(ii) Shambhu Murari Sinha vs. Project & Development India and Anr : (2000) 5 SCC 621;
(iii) J.N. Srivastava vs. Union of India and another : (1998) 9 SCC 559;
(iv) Srikantha S.M. v. Bharath Earth Movers Ltd. : 2005 (8) SCC 314;
(v) Union of India vs. Gopal Chandra Misra and others : 1978 (2) SCC 301
Sri Manish Goyal, learned counsel for the respondents, in reply, submitted that general principle of resignation would not apply in matters relating to voluntary retirement, which is governed by Fundamental Rule 56 (c). Sri Goyal submitted that under Fundamental Rule 56 (c), a government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years or after he had completed qualifying service of 20 years.
It has been submitted by him that the date of birth of the petitioner is 22nd April 1966 and therefore on the date i.e. 12.04.1996, when the petitioner submitted application seeking voluntary retirement, he had already attained the age of 45 years and therefore the application of the petitioner was maintainable notwithstanding that he had not completed 20 years of service by that date. It has been submitted that the Proviso to Rule 56 (d) specifically provides that the notice given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.
Sri Goyal submitted that as specific permission of the appointing authority is required for withdrawing the notice seeking voluntary retirement, the appointing authority has power to refuse withdrawal of such notice. He urged that in the case of Balram Gupta (supra), the Apex court had the occasion to deal with Rule 48-A of the Central Civil Service (Pension) Rules 1972 wherein a similar provision such as the Proviso to Fundamental Rule 56 (d) existed in the form of sub-rule (4) of Rule 48-A which circumscribed the right to withdraw retirement notice by making it subject to approval of the appointing authority. In that context, the apex court had observed that approval is not ipse dixit of the approving authority; and that the approving authority who has the statutory authority must act reasonably and rationally. After observing as above, the apex court had taken a view that the only reason put forward there was that the appellant had not indicated his reasons for withdrawal. Which, in Court's opinion, was sufficiently indicated by disclosing that he was prevailed upon by his friends to take a second look at the matter. After observing as above, the apex court had also taken notice of the guidelines issued in that regard and had found that the guidelines were to the effect that permission to withdraw should not be granted in a routine manner unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.
Sri Goyal submitted that in Balram Gupta's case (supra), the incumbent had not given any reason in his notice seeking voluntary retirement. In that context, therefore, the apex court had accepted the reasons offered by the incumbent to withdraw the notice. Whereas, in the instant case, the petitioner in his voluntary retirement notice had levelled allegations concerning functioning of the concerned department which were found not correct therefore, when the petitioner submitted application to withdraw the retirement notice without expressing any remorse for levelling those allegations, the Hon'ble Chief Justice rejected the request of the petitioner seeking withdrawal of the retirement notice by recording detailed reasons while keeping in mind the provisions of the Proviso to Rule 56 (d) of the Fundamental Rules. Hence, the order of Hon'ble Chief Justice calls for no interference.
We have considered the rival submissions and have perused the record.
Before we proceed to deal with the rival submissions, it would be apposite to notice the constitution bench decision of the apex court in Union of India vs. Gopal Chandra Misra and others (supra). In this case, an Hon'ble Judge of the High Court by a letter dated May 7, 1977 under his hand addressed to the President of India, had stated that he begs to resign his office as Judge High Court; that he would be on leave till 31st of July, 1977; his resignation shall be effective on 1st of August, 1977. Thereafter, on July 15, 1977, Hon'ble Judge wrote to the President of India that he revokes and cancel the intention expressed by him to resign on 1st of August, 1977 made in his letter dated 7th May, 1977; that communication may be treated as null and void. The Hon'ble Judge, thereafter by a letter, cut short his leave and resumed duty on July 16, 1977, and started holding Court from July 18, 1977. On August 1, 1977, an Advocate of the High Court, filed a petition under Article 226 of the Constitution, contending that the resignation, dated May 7, 1977, having been duly communicated to the President of India in accordance with the provisions of Article 217 (1), proviso (a) of the Constitution, was final and irrevocable, and as a result, the Judge had ceased to be a Judge of the Allahabad High Court with effect from May 7, 1977, or, at any rate, with effect from August 1, 1977; therefore, his continuance to function as a Judge from and after August 1, 1977, was usurpation of the office of a High Court Judge, which was a public office. On the aforesaid premises, the writ petitioner of that case had prayed for a writ, order or direction in the nature of quo warranto calling upon Judge to show under what authority he was entitled to function and work as a Judge of the High Court.
The petition was heard by a Bench of five Hon'ble Judges of this Court and by majority of three against two, the writ petition was allowed. Against the judgment of the High Court, the matter went to the Supreme Court on an appeal preferred by the Union of India and others. The apex court after taking notice of the rival submissions observed as follows:-
"41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be Withdrawn by him at any time before it becomes effective. i.e. before it effects termination of the tenure of the office/post or the employment. "
In the aforesaid judgment, the apex court had also noticed an earlier decision rendered by it in Jai Ram v. Union of India : AIR 1954 SC 584 wherein it was observed as follows:-
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but, be can be allowed to do so as long as he continues in service and not after it has terminated."
In Raj Kumar v. Union of India : (1970) 1 LLJ 13 SC, the above principle was reiterated in the following words:-
"When a public servant has invited by his letter of resignation determination of his employment, his services normally stand, terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."
In Union of India vs. Gopal Chandra Misra and others (supra), after taking conspectus of various decisions as well as general principles governing resignation, the apex court, as per majority view, observed, in paragraph 50, as follows:
"50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office- tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot,-under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217 (1) has a unilateral right, or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his office- tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such Writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge. can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal. "
The principle of law that emerges from the majority view of the apex court in Gopal Chandra Misra's case (supra) is that in absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective. i.e. before it effects termination of the tenure of the office/post or the employment.
In the case at hand, the petitioner had submitted application seeking voluntary retirement on 12.04.2016 which was to take effect from 01.09.2016. The request for voluntary retirement was accepted by the Hon'ble Chief Justice on 13.04.2016 and the petitioner was requested to handover charge forthwith and, on 13.04.2016 itself, the charge was taken over from the petitioner. After the charge had been taken from the petitioner, in the evening of 13.04.2016, the petitioner submitted application for withdrawal of his request seeking voluntary retirement.
The main ground on which the petitioner has pressed this petition is that since voluntary retirement had to take effect from 01.09.2016, the master-servant relationship between the respondent and the petitioner continued and during currency of such relationship, the petitioner had every right to withdraw the application and therefore there was no legal justification to refuse permission to withdraw the application.
The aforesaid argument of the petitioner has been rebutted by the respondent on the ground that, as per Proviso to Fundamental Rule 56 (d), once the application for voluntary retirement is accepted, the same cannot be withdrawn unless specifically permitted by the appointing authority. Hence, what needs to be examined is whether refusal to grant permission is justified or not.
Having noticed the relevant provisions as also the law laid down by the Constitution Bench of the Apex Court in Gopal Chandra Misra's case (supra), we are of the view that since there are specific provisions i.e. Fundamental Rule 56(c)(d) of Part II to IV of the U.P. Financial Handbook, which are applicable to the petitioner by virtue of Rule 15 of the Rules, 2010, the general principle that the notice giver has indefeasible right to withdraw his notice seeking voluntary retirement-resignation before the same becomes effective, would not be applicable to the petitioner and such withdrawal would be subject to the permission of the appointing authority or the competent authority as per proviso to Fundamental Rule 56(d).
In Balram Gupta's case (supra), the apex court had the occasion to consider sub-rule (4) of Rule 48 A of the Central Civil Service (Pension) Rules, 1972, which is similar to the proviso to Fundamental Rule 56 (d) as applicable in the State of Uttar Pradesh. Sub-rule (4) of Rule 48 A which prevents withdrawal of letter of voluntary retirement except with approval of authority reads as follows:-
"A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority."
Without addressing the question of validity of sub-rule (4) of Rule 48 A of the Pension Rules, the apex court in Balram Gupta's case (supra) observed: "If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is not an unreasonable reason."
In Balram Gupta's case (supra), the apex court after noticing the guidelines as well as provisions on the issue as to whether a Government servant who had given notice of retirement, after its acceptance, but before termination of employment, had indefeasible right to withdraw the same and return to duty, held that the Government servant has no such right. Although, the apex court held that there would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. After holding as above, the apex court found that in that case, such indication had been given as the incumbent had stated that on persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. In that context, the apex court had observed that there was no reason to refuse permission as valid reason for withdrawal of the notice was shown.
It may be noticed here that in Balram Gupta's case (supra), the letter which was addressed by the incumbent, seeking voluntary retirement, contained only few words which were as follows:-
"I beg to seek voluntary retirement on 31.3. 1981. I had joined government service on 4th August, 1958, thus I have completed more than 20 years service. My notice period may please be treated w.e.f. 1.1. 1981."
In the instant case, the petitioner had not submitted a mere wish to voluntarily retire but had also levelled allegations against the establishment and its functioning. After acceptance of the notice by the Hon'ble Chief Justice and its communication to the petitioner, the petitioner submitted a withdrawal application in which he did not express any remorse about the allegations that were made by him in his retirement notice. The only reason expressed in the withdrawal letter was that the applicant sought voluntary retirement under pressure of work. No changed circumstances warranting such withdrawal of voluntary retirement notice, which had already been accepted, were disclosed in the notice.
In the above background, the Hon'ble Chief Justice refused permission by a detailed order after noticing the law laid down by the apex court in Balram Gupta's case (supra).
The decision of the apex court in Shambhu Murari Sinha's case (supra) had no occasion to deal with the provisions of the nature contained in Rule 48 A (4), as was considered in Balram Gupta's case (supra). The facts of that case would reflect that the incumbent had by letter dated 18.10.1995 sought voluntary retirement, which was accepted by the Management by letter dated 30th July, 1997 and the incumbent was not released from service and was allowed to continue in service till 26.09.1997. In the meantime, the incumbent had withdrawn his offer of voluntary retirement vide letter dated 07.08.1997. In that context, it was held by the apex court, by placing reliance on its earlier decisions that voluntary retirement notice, in spite of its acceptance, can be withdrawn before the effective date, which was found in that case to be 26.09.1997.
In J.N. Srivastava's case (supra), voluntary retirement notice was submitted by the incumbent on 03.10.1989 which was to come into effect from 31-1-1990. The proposal was accepted by the authorities on 2-11-1989. But before 31-1-1990, the incumbent wrote a letter dated 11.12.1989 to withdraw his voluntary retirement proposal, which was rejected by communication dated 26-12-1989. The apex court in the background facts observed that it is now well settled that even if the voluntary retirement notice is moved by an employee and got accepted by the authorities, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement.
In Srikantha S.M.' s case (supra), the incumbent tendered a letter of resignation on January 04, 1993 with a request that the letter be treated as his resignation and he be relieved from duties as per Company rules'. The letter was processed and the resignation was accepted on the same day. The incumbent was informed that his resignation had been accepted and he would be relieved with immediate effect. It was also communicated to the incumbent that he would be entitled for pay towards notice period as per Company rules. By another letter of same date, the incumbent was informed that his casual leave had been sanctioned from January 05, 1993 to January 13, 1993 and January 14, 1993 being a holiday, the incumbent would be relieved by the close of working hours on January 15, 1993. It was also stated in the letter that the incumbent would be entitled for pay towards the balance of notice period as per Company rules. On the above facts, the apex court found that the resignation submitted by the incumbent was to be effective from January 15, 1993 after office hours and as the incumbent had changed his mind and withdrew his resignation by addressing a letter on Jaunary 8, 1993, he was entitled to remain in service.
Neither in Shambhu Murari Sinha's case (supra) nor in J.N. Srivastava's case (supra) or in Srikantha S.M.' s case (supra), the apex court had the occasion to deal with a provision such as Rule 48 A (4) of the Pension Rules, as in Balram Gupta's case (supra), or any provision such as the proviso contained in Fundamental Rule 56(d), which places a restriction on the Government servant's right to withdraw his notice seeking voluntary retirement, once accepted, by making the right of withdrawal subject to permission of the competent authority.
As we have already noticed that in the Constitutional Bench decision of the Apex Court in Gopal Chandra Misra's case (supra), it was held that the general principles providing indefeasible right to withdraw before severance of master-servant relationship are subject to the provisions governing the terms and conditions of the office/post, the right to withdraw the notice, once accepted, would be there subject to existence of any service rule to the contrary.
In the instant case, the proviso to Fundamental Rule 56(d) qualifies the right of the incumbent to withdraw the notice by making it subject to permission of the appointing authority. Therefore what remains to be seen is whether the refusal of permission by the appointing authority is justified in the facts of the case or not.
A perusal of the order passed by the Hon'ble Chief Justice refusing permission to the petitioner to withdraw his notice would reflect that the appointing authority found that the petitioner in his retirement notice had expressed his grievance about judicial officers being deputed to the High Court for looking after computerization activities who, in his description "are merely interested in calling themselves Incharges". By referring to the note put by the Computerization Committee, it was also found that the petitioner had unilaterally changed the established procedure of routing files through the OSD (Computers) and started placing them directly to the Registrar General. The Committee had directed the petitioner to ensure that files had to be marked to the OSD (Computers) but, despite that, the petitioner had marked the files to the Registrar General of the High Court. After noticing the above position, the appointing authority found that the petitioner had, in his notice of voluntary retirement, taken exception to the deputation of judicial officers for looking after computerization activities and had made an allegation against them to the effect that they are interested "in calling themselves incharges".
The appointing authority observed that the notice of voluntary retirement indicated that the petitioner was persisting in his refusal to accept the role and position of the OSD (Computers), who had been brought on deputation by the High Court, despite being counseled by two of the Hon'ble Judges on the Committee. With that in mind, the appointing authority, in his order refusing permission, observed that in the letter of withdrawal, the petitioner had not indicated that upon due reflection, he had found his behaviour to be inappropriate or that realization had dawned that he was bound to abide by the orders of the Computerization Committee. It was observed that the petitioner, as an officer of the High Court, was bound by the discipline of the Organization. It was also observed that he sought to unilaterally alter the established practice of routing files through the OSD (Computers).
The appointing authority found that the letter/notice of withdrawal was silent on that aspect and, hence, no material change in the circumstances was shown to withdraw the notice of voluntary retirement. The appointing authority observed that the requirement of routing files through the OSD (Computers) was not a meaningless administrative formality. The OSD (Computers) has a vital presence in overseeing the functioning of the Computer department. It was observed that projects of the High Court, involving IT activities, involve large public funds and an accountability to the public exchequer. It was observed that an employee of the High Court cannot at his discretion alter administration systems and processes. With that in mind, the appointing authority, in the interest of administration of the High Court, denied permission to the petitioner to withdraw the notice by observing that the withdrawal does not reflect any change that would suggest that upon reflection, the petitioner had accepted the need to maintain discipline.
It is well settled that the Chief Justice is the Incharge of the administration of the High Court and is therefore empowered to take all such decisions that in his opinion are necessary to ensure efficiency and discipline in the administration. In that context, we have to examine whether the decision taken by the Hon'ble Chief Justice to refuse permission to the petitioner to withdraw the notice is legally justified or not.
Having perused the voluntary retirement notice and the withdrawal notice, what we find is that in the voluntary retirement notice the petitioner had expressed his dissatisfaction as regards posting of Judicial Officers to overlook the affairs of the computerization projects. Not only he has expressed his dis-satisfaction but has insinuated about their conduct. The letter seeking withdrawal of the notice does not express remorse in respect of the allegations that were made in the notice. The appointing authority, after discussing with the members of the Computerization Committee, had found that the petitioner was not following due procedure of routing files through the OSD (Computers) but was directly placing it before the Registrar General, despite being warned about it. Such behaviour of the petitioner appeared to be an expression of displeasure in posting of Judicial Officers on Special Duty as got reflected in the contents of the voluntary retirement notice. As no remorse was expressed in the letter seeking withdrawal of the voluntary retirement notice as regards allegations made in the voluntary retirement notice, the Hon'ble Chief Justice in the interest of maintaining discipline in the administration of the High Court establishment, took decision not to allow withdrawal of the voluntary retirement notice. Such decision of the Hon'ble Chief Justice cannot be said to be arbitrary or unjustified in law. In Balram Gupta's case (supra), the incumbent had made a short statement in his voluntary retirement notice and had not levelled any allegation against any person and therefore when he had submitted an application to withdraw the notice that he was prevailed upon by his friends to have a second look at the matter, the reason was found sufficient, as a changed circumstance, to allow him to withdraw the notice and therefore withholding the permission to withdraw the notice was found unjustified.
As we have already noticed that in the instant case, the voluntary retirement notice had expressed unjustified dissatisfaction as regards posting of Judicial Officers on Special Duty in the Computerization Committee and no remorse for such expression was shown by the petitioner in his withdrawal letter, the decision of the Hon'ble Chief Justice refusing permission, in the facts of the case, appears to have been taken, in the interest of administration of the High Court establishment. Such a decision is well within the authority of the appointing authority and as it is supported by reasons germane to the administration of the High Court establishment, no case to interfere with such a decision is made out.
The contention of the learned counsel for the petitioner that the voluntary retirement notice was nonest as the petitioner had not completed qualifying service of 20 years on the date when voluntary retirement notice was given and accepted, is unworthy of acceptance inasmuch as Fundamental Rule 56(c) clearly provides that a Government servant is entitled to seek voluntary retirement at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years. As there is no dispute that the petitioner had attained the age of 45 years on the date of giving notice, the notice was not void and was rightly acted upon.
For all the reasons recorded above, the petition is dismissed. There is no order as to costs.
Order Date :- 12.10.2018
Sunil Kr Tiwari
(V.P. Vaish, J.) (Manoj Misra, J.)
