Ravindra Singh vs U.P. Jal Nigam Lko. Thru. M.D. & ...
2021 Latest Caselaw 11441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18							  Reserved
 
									     A.F.R.
 
Case :- SERVICE SINGLE No. - 11666 of 2021
 

 
Petitioner :- Ravindra Singh
 
Respondent :- U.P. Jal Nigam Lko. Thru. M.D. & Anr.
 
Counsel for Petitioner :- Pradip Kumar Srivastava,Renu Misra
 
Counsel for Respondent :- Rishabh Kapoor
 

 
Hon'ble J.J. Munir,J.

1. This writ petition is directed against orders dated 03.11.2020 and 24.02.2021 passed by the Uttar Pradesh Jal Nigam, refusing the petitioner's notice to voluntarily retire from service.

2. The petitioner is an Executive Officer in the employ of the Uttar Pradesh Jal Nigam, Lucknow. He is currently posted at the Construction Division of the Nigam at Baghpat. The petitioner completed the age of 59 years on December the 13th, 2020, rendering by that time more than 36 years of service. He was appointed as a Junior Engineer on 22.09.1984 and in course of time, was promoted to the post of an Assistant Engineer. He was further promoted to the post of an Executive Engineer, which he current holds. The petitioner submitted a request to the Managing Director of the Uttar Pradesh Jal Nigam (for short, 'the Nigam') through an application dated 01.10.2020, seeking to voluntarily retire from service, in exercise of his right under the U.P. Fundamental Rule 56(c) of the Financial Hand Book Vol. II (Parts II to IV). The aforesaid Rules shall hereinafter be referred to as 'the Rules'.

3. It was indicated in the application dated 01.10.2020 that the request may be regarded as three months' notice to voluntarily retire from service. The petitioner's notice to voluntarily retire was rejected by the Nigam in terms of an order of November the 3rd, 2020 passed by the Secretary (Administration) to the Nigam. It was said in the order that the petitioner's request was considered, but was not acceded to in public interest.

4. On 11th November, 2020, the petitioner addressed another memo to the Managing Director of the Nigam and requested a review of the order dated 03.11.2020. It was said in the memo/ representation dated 11.11.2020 that the petitioner was finding himself unable to serve the Nigam any further on account of his family and personal circumstances and, therefore, the employers may reconsider his request, seeking voluntary retirement, sympathetically. The memo dated 11.11.2020 remained unresponded to.

5. The petitioner then made another application dated 02.12.2020, also addressed to the Managing Director of the Nigam. Here, the relevant provisions of Rule 56 of the Rules were quoted and the Nigam were informed that the petitioner had a right to retire voluntarily at the end of three months' notice period under Rule 56(c). It was said in this application that the three months' notice period would expire on 31.12.2020 and the petitioner would treat himself retired from the Nigam's service w.e.f. 31.12.2020. The Managing Director was requested to arrange transfer of charge by nominating an Officer for the purpose. The Superintending Engineer, First Division, U.P. Jal Nigam, Meerut addressed a memo dated 29.12.2020 to the Chief Engineer (Rural Area), U.P. Jal Nigam, Ghaziabad, apprising him of the petitioner's request. It was also requested by the Superintending Engineer that the Chief Engineer may ensure acceptance of the petitioner's request for voluntary retirement and make arrangement for transfer of charge.

6. It is the petitioner's case that no Officer was deputed to relieve him on 31.12.2020 by the Nigam and he could not relinquish charge on the said date. On the 24th of February, 2021, the Secretary (Administration) to the Nigam passed a further order, notifying the decision to reject the petitioner's request for a review of the earlier order dated 03.11.2020, declining the petitioner's notice seeking voluntary retirement. The order dated 24th February, 2021 indicated that the petitioner's request has been refused in public interest. The public interest was disclosed to be the fact that in comparison to the month of November, 2020, Officers working in the Class-A Cadre of the Nigam had witnessed a drastic reduction in strength. It was mentioned that in these circumstances, it was not possible to accede to the petitioner's request for a voluntary retirement from service.

7. Aggrieved by the orders dated 03.11.2020 and 24.02.2021 passed by the Nigam, the petitioner has instituted the present writ petition. He prays that both these orders be quashed and the respondents ordered to relieve him from service forthwith attended with a direction to pay his full retirement benefits due in accordance with the Rules.

8. This petition was instituted on 08.06.2021 and came up before the Court on 10.06.2021. The Court passed an order directing the respondents to file a counter affidavit. The petition was ordered to come up again on 12.07.2021. Between 12.07.2021 to 29.10.2021, it drifted across six dates. During this period of time, pending admission, the parties exchanged affidavits. On 29.10.2021, this petition was formally admitted to hearing. It was heard in part on that day and adjourned to 01.11.2021. It was heard further for remainder of the submissions on 10.11.2021, when judgment was reserved.

9. Heard Mr. Pradip Kumar Srivastava, learned Counsel for the petitioner and Mr. Rishabh Kapoor, learned Counsel appearing for the respondents.

10. The thrust of Mr. Pradip Kumar Srivastava's submission is that under Rule 56(c) of the Rules, an employee is entitled to retire as a matter of right at any time after attaining the age of 45 years or after he has completed the qualifying service of 20 years. He submits that the petitioner is entitled to voluntary retirement on both parameters. He was about two months shy of his 59th birthday when he served the notice of voluntary retirement dated 01.10.2020 and had put in, by that time, more than 36 years of service. It is emphasized by Mr. Srivastava that the only contingency under which a notice of voluntary retirement may be refused is that envisaged under the second proviso to Rule 56(d), which stipulates that a Government servant, against whom disciplinary proceedings are pending or contemplated, would have his notice of voluntary retirement effective only if it is accepted by the Appointing Authority. The proviso further says that in case of contemplated disciplinary proceedings against a Government servant, who has served a notice of voluntary retirement, shall be informed about the refusal of his notice before expiry of the notice period.

11. The learned Counsel for the petitioner has drawn the Court's attention to the provisions of Rule 56 of the Rules and submitted that the employers have no choice in the matter once a notice of voluntary retirement is served and the period of notice expires. It is emphasized that it is not the Nigam's case that there are any disciplinary proceedings pending or contemplated against the petitioner. Thus, the action of the Nigam in refusing to accept the petitioner's notice of voluntary retirement is without jurisdiction. The petitioner must be deemed to have retired on the expiry of the period of three months of service of the notice seeking voluntary retirement. In support of his contention, Mr. Srivastava has relied upon the decision of a Division Bench of this Court in Radha Saran v. The General Manager, Central Railways, Bombay and another, 1987 LAB. I. C. 716. In Radha Saran, it was held:

"8. From the facts discussed above it is apparent that the authorities adopted a negative approach in considering the application of petitioner seeking voluntary retirement after having rendered 27 years of service. Why was this request opposed in absence of any circumstance is indeed beyond comprehension. The unreasonable attitude adopted by the authorities which was not warranted in the circumstances has resulted in inordinate delay in granting pension and other benefits to petitioner. The petitioner had to approach this Court for relief and remedy which could have been easily granted to him without any delay."

12. It is submitted by the learned Counsel for the petitioner that in the present case too, assuming that the Authorities have power to decline a notice of voluntary retirement, there is no justification to do so. Learned Counsel for the petitioner has hastened to add that this submission is not in derogation of his stand that the Nigam have no authority under Rule 56(c) of the Rules to decline a notice of voluntary retirement. He adds, continuing on the second line of his submission, that if the Nigam are held to possess jurisdiction or authority to refuse the petitioner's notice of voluntary retirement, the decision in the absence of a cogent reason is arbitrary.

13. It is argued by the learned Counsel for the petitioner that 'public interest' is a word of well acknowledged connotation, but with an equally acknowledged reputation for its misuse and abuse. He submits that the Nigam's financial circumstances, that are not in dispute, show them to be in dire financial straits, where they are embarrassed with inability to regularly pay salary and pension to their employees and ex-employees. Learned Counsel for the petitioner has drawn this Court's attention to assertions in paragraph no.14 to the above effect, which have not been denied by the Nigam. He has also invited the Court's attention to a memo dated 27.03.2021 from the State Government to the Nigam sanctioning an interest free loan in the sum of Rs.72 crores to enable the Nigam to disburse their employees' salaries and pensions. It has been most persuasively urged by Mr. Srivastava that the Nigam, placed in the circumstances that they are, could hardly tout a case of 'public interest' in support of their refusal to accept an employee's request for voluntary retirement.

14. Mr. Rishabh Kapoor, learned Counsel for the Nigam, on the other hand, has refuted the submissions of Mr. Srivastava with utmost vehemence. He submits that the Nigam may not be in the pink of financial health, but they are a public undertaking charged with the duty of the preparation, execution, promotion and financing the schemes for the supply of water and for sewerage and sewage disposal, amongst others, in rural and urban areas. Supply of water in an ordered and sustained manner is a concomitant of the fundamental right to life guaranteed to all citizens. The Nigam is engaged in the discharge of duties corresponding to that fundamental right of the citizens. It is submitted, therefore, that the decision to retain a particular employee in service or a class of their employees, so that the Nigam can discharge its duties, has to be their decision taken in public interest. It is submitted that the Nigam, therefore, have to take a decision on a case-to-case basis about the class of employees or individuals, who are to be retained in service in order to enable the Nigam to discharge its functions.

15. About the jurisdiction of the Nigam to refuse a notice of voluntary retirement, it is submitted by Mr. Rishabh Kapoor that the Nigam have an unfettered right to refuse the notice of voluntary retirement so long as it is in public interest. Mr. Kapoor urges that there has to be some material to support the public interest, on which the Nigam seek to base their decision. The decision ultimately is one of the Nigam's and they are the primary decision makers about the public interest involved. The scope for judicial review is very limited. It is argued by the learned Counsel for the Nigam that in reading the provisions of Rule 56(c), the way the learned Counsel for petitioner urges this Court to do, the Explanation to Rule 56(c) has been ignored. That Explanation, according to Mr. Rishabh Kapoor, empowers the Nigam to refuse a notice of voluntary retirement in 'public interest'.

16. The Court has carefully considered the rival submissions advanced and perused the record. In order to assess the worth of the petitioner's case that the Nigam have no jurisdiction or authority under Rule 56(c) of the Rules to refuse a notice of voluntary retirement, it would be gainful to refer to the provisions of Rule 56 of the Rules. The relevant part of Rule 56 reads:

Financial Hand Book Vol. II (Parts II to IV)

"CHAPTER IX-COMPULSORY RETIREMENT

56. (a) Except as otherwise provided in this Rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after that date, except in very special circumstances and with sanction of the Government.

(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) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement;

(ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:

Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted:

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.

(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this rule.

Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less;

Explanation.-(1) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.

(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration-

(a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or

(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or

(c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965.

(2-A) Every such decision shall be deemed to have been taken in the public interest.

(3) The expression ''appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression ''qualifying service' shall have the same meaning as in the relevant Rules relating to retiring pension.

(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) of this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."

17. If one were not to read beyond the second proviso to Rule 56(c) & (d) of the Rules, the contention of Mr. Srivastava could be accepted. The provisions of Rule 56(c) together with its three provisos, including the two sub-clauses of the first, make out a clear distinction between a case of compulsory retirement by the Government, which here would mean the Nigam, on the one hand and a case of voluntary retirement sought by an employee on the other. The provision about the Government taking a decision to compulsorily retire a Government servant after he attains the age of 50 years, does not envisage assignment of reason. It is a well acknowledged principle that this power to compulsorily retire a Government servant under Rule 56(c) after he attains the age of 50 years, is to be exercised by the Government or any other employer, to whom the Rules are applicable in public interest. However, the right of the Government servant/ employee to seek voluntary retirement at any time after attaining the age of 45 years or after he has completed the qualifying service of 20 years, appears to be a right, at the first blush, that can be exercised unilaterally by the employee, with no right of refusal with the Government/ employer. The only ground that appears, if one were not to read beyond the three provisos to Rule 56(d), is the pendency or contemplation of disciplinary proceedings against the Government servant. If that be the case, there seems to be little quarrel that a notice of voluntary retirement cannot be declined.

18. The second part of the second proviso, which says that in a case of contemplated disciplinary proceedings, the Government servant shall be informed before the expiry of his notice that it has not been accepted, seems to reinforce the submission that the right to retire voluntarily at the expiry of three months' notice, is unqualified and unilateral, except in the case of pendency or contemplation of disciplinary proceedings. But, reading the provisions of Rule 56(c) this way, portrays half the picture. Explanation (1) added to Rule 56(c) says that the decision of the Appointing Authority under clause (c) to require the Government servant to retire, as specified therein, shall be taken if it appears to the Authority that it is in public interest so to do. Now, clause (c) of Rule 56 speaks both about compulsory retirement and voluntary retirement. If one were to go by the strict phraseology of the Explanation, the words "require the Government servant to retire" would seem to refer to the contingency of compulsory retirement alone, and not voluntary retirement. The petitioner seems to have thought that this may not be said of voluntary retirement, and perhaps, has led him to believe it to be so, because ''requiring' the Government servant to retire may possibly bear no reference to a case of voluntary retirement, where the Government servant opts to retire; and not ''required' to retire. This construction placed upon the Explanation, however, does not appear to be sound, because the Explanation bears reference to clause (c) of Rule 56 of the Rules as a whole. If there were some avenue of doubt about it, the legal position stands concluded in favour of the view that the Explanation applies to cases both of compulsory retirement as well as voluntary retirement, as held by the Supreme Court in State of Uttar Pradesh and others v. Achal Singh, (2018) 17 SCC 578. The precise question that fell for consideration of their Lordships of the Supreme Court in State of U.P. v. Achal Singh (supra) may be best described by referring to paragraph no.2 of the report:

"2. The main question for consideration before us is as to whether under Rule 56 of the Uttar Pradesh Fundamental Rules (hereinafter referred to as "the Fundamental Rules") as amended, an employee has unfettered right to seek voluntary retirement by serving a notice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest under clause (c) of Rule 56 of the Fundamental Rules as applicable to the State of Uttar Pradesh."

19. The controversy in State of U.P. v. Achal Singh arose in the context of a notice of voluntary retirement served by the Doctors of the Provincial Medical Services, under Rule 56 of the Rules. The Doctors served notices on various dates, seeking to voluntary retire from service. Their applications remained pending much beyond the period of three months, with no orders passed. They then approached the High Court, saying that their voluntary retirement has become effective at the expiration of three months of service of notice under Rule 56(c), which this Court accepted on the construction of Rule 56(c) and its provisos, the way the petitioner wants this Court to do. The State of Uttar Pradesh challenged the judgment and order of the Division Bench of this Court dated 27.11.2017 by Special Leave, that was granted. Allowing the Appeal of the State of Uttar Pradesh, in State of U.P. v. Achal Singh, it was held:

"11. The Explanation attached to Rule 56 makes it clear that the decision of the appointing authority under clause (c) of Rule 56 to retire a government servant shall be taken if it appears to be in public interest. The Explanation is applicable to both the exigencies viz. when the Government retires an employee or when an employee seeks voluntary retirement, not only when Government desires to retire an employee in public interest. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh is clear and precise.

14. It was submitted that despite the absence of any identical language, the rule involved in Dinesh Chandra Sangma [Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 : 1978 SCC (L&S) 7] is comparable with the Uttar Pradesh Fundamental Rules and therefore, the judgment is binding. The submission based upon the same cannot be accepted and Rules 56(b) and (c) came up for consideration was somewhat different and there was no such Explanation to Rule 56.

15. In Dinesh Chandra Sangma [Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 : 1978 SCC (L&S) 7] he was the District and Sessions Judge at Dibrugarh in the State of Assam. On account of domestic troubles, he did not want to continue after attainment of the age of 50 years. He served a notice under Rule 56(c) as amended by the Governor of Assam under Article 309 of the Constitution by the Notification dated 22-7-1975. The formal notice was served upon by him. The Government allowed him to retire from the State Government service and then there were certain developments in the Government and the Government sought to retrace its steps and passed an Order on 28-7-1976, countermanding its earlier order allowing him to retire from service. The High Court dismissed the writ application filed by him. The Fundamental Rule as applicable in the State of Assam came up for consideration. In our opinion, it was quite different. It is provided in Fundamental Rule 56(b) as applicable in the State of Assam that public interest was germane when a government servant retires. Under Rule 56(c), a government servant may retire by giving notice of not less than three months. Hence, it was observed that there was no question of acceptance of the request for voluntary retirement by the Government when the government servant exercises his right under Rule 56(c). Not only the Rule was different it was passed on the concession also, however, the Explanation given to Rule 56 in the State of Uttar Pradesh makes it completely different and the provisions in F.R. 56(c) are also quite different. The rules as applicable in Assam for the purpose of retirement by the Government are contained in F.R. 56(b) which require retirement in public interest whereas no such rider exists in F.R. 56(c) when an employee seeks voluntary retirement, whereas rule in the State of Uttar Pradesh both provisions are conjointly read, not only the language is different and the Explanation makes out the whole difference.

16. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh makes it clear that when a decision is taken by the authority under clause (c) of Rule 56, the right of an employee to retire cannot be said to be absolute as in the case of resignation, voluntary retirement is with retiral benefits whereas it may not necessarily follow in case of resignation. The decision under the rules in U.P. is to be based upon considering the public interest, whether it is a case of retirement by the Government or a case of a government servant seeking voluntary retirement. The decision rendered in Dinesh Chandra Sangma [Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 : 1978 SCC (L&S) 7] is distinguishable and was based on the differently couched rule. The Explanation added makes the provisions different in the State of Uttar Pradesh. The decision in Dinesh Chandra Sangma [Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 : 1978 SCC (L&S) 7] cannot be said to be operative being quite distinguishable.

19. Reliance was also placed on the decision rendered by this Court in State of Bombay v. United Motors (India) Ltd. [State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252] and Bengal Immunity Co. Ltd. v. State of Bihar [Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661] , in which it has been observed that Explanation can be read as proviso and it explains the scope of the main provision and the Explanation becomes part of the main section. There is no dispute with the aforesaid proposition. The Explanation in the Rules in question has to be applied to both the situations as contemplated in Rule 56(c) and is applicable to both the exigencies not only when the Government decides to retire an employee, but also applicable where voluntary retirement is sought by an employee. It cannot be said that no further restriction by Explanation has been added in a case where an employee has decided to obtain voluntary retirement. The public interest is the prime consideration on which authority has to decide such a prayer as per the rules applicable in the State of Uttar Pradesh.

27. In our considered opinion, under Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months' period. Under the Rule in question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.

28. In our opinion, Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement. In view of the aforesaid dictum and what is held by this Court, we find that the prayer made to make a reference to a larger Bench, in case this Court does not follow the earlier decision is entirely devoid of merit as on the basis of what has been held by this Court in the earlier decisions, we have arrived at the conclusion. This Court has authoritatively laid down the law umpteen number of times.

33. There is no doubt about it that Rule 56(d) provides that where a disciplinary enquiry is pending or contemplated and in the case of contemplated disciplinary enquiry, the government servant shall be informed before the expiry of notice that it has not been accepted. The proviso to Rule 56(d) has no application where a disciplinary enquiry is not contemplated or pending. When the proviso itself is not applicable, in no case it will dilute the provisions of the Explanation with respect to exigencies mentioned in clause (c) of Rule 56.

34. The submission made upon principle of liberty and its curtailment, the law must be just, fair and reasonable can also not be accepted as the Fundamental Rules are statutory rules and have been made by the Governor under Section 241(2)(b) of the Government of India Act, 1935 and the provisions of rule in question cannot be said to be unfair, unreasonable and oppressive."

(Emphasis by Court)

20. In view of the aforesaid holding of the Supreme Court in State of U.P. v. Achal Singh (supra), there cannot be any doubt that the exercise of option to retire voluntarily is subject to the Government/ employer's scrutiny and its acceptance on the anvil of public interest. It is not an absolute right of the employee that fructifies on the expiry of three months' notice period under Rule 56(c) of the Rules. Therefore, it has to be held that the Nigam had authority and jurisdiction to decline the petitioner's application/ notice to retire voluntarily.

21. The second limb of the submission is about the decision carried in the impugned orders being vitiated by the vice of arbitrariness. Public interest, that has been pleaded in justification of the orders impugned, it is true, is no cloak to shield the Administrator's arbitrary and whimsical decision, based on whims and caprice. It has to be a decision by the primary decision maker, that is to say, the Administrator taken bona fide to qualify for a valid decision. It has to be one that is free from the vice of arbitrariness and taken in public interest. The Administrator must act on relevant and objective material. The assessment and conclusion from that material to judge public interest is the Administrator's determination. That would not be re-assessed and trampled upon by the Court to step into the Administrator's role as the primary decision maker, unless the Administrator's conclusion be perverse. This is a principle, too well-acknowledged, to merit any further elucidation.

22. Here, the consideration on which the impugned orders are sought to be supported, appears in a few but meaningful words carried in the order dated 24.02.2021. These are recorded in Hindi and read:

"माह नवम्बर 2020 की तुलना में विभाग में समूह "क" के कार्यरत अधिकारियों की संख्या में और कमी आयी है। ऐसी स्थिति मे आपकी स्वैच्छिक सेवानिवृत्ति के अनुरोध को स्वीकार किये जाने का अवसर सक्षम प्राधिकारी द्वारा परिलक्षित नहीं पाया गया हैं। तद्नुसार आपको अवगत कराया जाता है।"

23. The parties at ad idem about the fact that the Nigam is in a precarious financial position. At the same time, the Nigam is a public body charged with the duty of managing water supply and sewerage all over the State. The petitioner is obviously a Senior Engineer and experienced in the particular nature of work, that is involved in the operations of the Nigam. If the Nigam say that there has been a reduction in the work force of their Class-A Officers (which implies Engineers), it would certainly and pre-eminently be the Nigam's decision to judge whether public interest would suffer if the petitioner is allowed to retire voluntarily and abandon post. It also cannot be ignored that the petitioner is not an entry-level Engineer or a fresh recruit, who can be replaced with another like him at short notice and before his scheduled retirement. Therefore, in the circumstances, the discretion exercised by the Nigam to refuse voluntary retirement, cannot be said to be arbitrary, whimsical, capricious or perverse. The decision is one taken in public interest, which does not warrant interference by this Court.

24. The decision in Radha Saran (supra) relied upon by the petitioner to canvass a case of unreasonableness by the respondents in declining the petitioner's notice of voluntarily retirement is clearly distinguishable, because that decision was rendered in the context of a Voluntary Retirement Scheme for servants of the Indian Railways governed by the Circulars of 1977 and 1981. The employers in that case were left option-less in the matter of declining a notice of voluntary retirement, in view of the phraseology of Clause (vii) of the 1977 Circular, where the expression used was "such acceptance may be generally given in all cases except......" as would appear from Paragraph 4 of the report in Radha Saran. The exceptions there were pending or contemplated disciplinary proceedings involving the imposition of a major penalty, or a case where prosecution was contemplated or launched in a court of law. Else, the employer was without option but to accept the notice. This is not the position under Fundamental Rule 56(c) read with the Explanation, as held by the Supreme Court in State of U.P. v. Achal Singh.

25. In the result, this petition fails and is dismissed.

26. There shall be no order as to costs.

Order Date :- 7.12.2021

Anoop

(J.J. Munir, J.)

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