Allahabad High Court
Kishan Kumar Gupta vs State Of U.P. And Others on 23 August, 2023
Bench: Kshitij Shailendra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:170869
Court No. - 10
Case :- WRIT - A No. - 19947 of 2003
Petitioner :- Kishan Kumar Gupta
Respondent :- State of U.P. and Others
Counsel for Petitioner :- V.K. Goel,Ajay Rajendra,Amit Sthalekar
Counsel for Respondent :- C.S.C.
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Ajay Rajendra, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.
2. The petitioner was appointed in 1965 on the post of Demonstrator at Polytechnic, Jhansi, and confirmed on the post in 1979 whereafter he was promoted as Senior Instructor in 1981 and thereafter he was transferred from one place to another.
3. The case of the petitioner is that since he was suffering from various physical ailments, he moved an application dated 11.7.1994 seeking voluntary retirement and since no approval or disapproval was communicated to him insofar as his application is concerned, he, as per Rule 56 (C) of the Fundamental Rules (Financial Hand-book Part-2) stood voluntarily retired immediately after expiry of three months period from the date of submission of application.
4. It is contended that certain communications were exchanged in between the petitioner and the departmental authorities, however, nothing happened thereafter, but in the meantime, certain orders were passed directing the petitioner to join duties. The petitioner filed Civil Misc.Writ Petition No.32024 of 1998 challenging the orders dated 9.6.1997 and 5.2.1998, whereby he was asked to join duties. The said writ petition was dismissed by the Division Bench by following order dated 7.10.1998:
"Petitioner K.K. Gupta was asked to join duly by both orders, one is dated 9.6.1997 and the other dated 5.2.1998 and both the orders have been challenged in writ petition.
The grounds taken by Sri R.K. Nigam learned counsel for the petitioner in the writ petition are that since the petitioner had given a notice of voluntary retirement on 11.7.1994, it should be deemed that petitioner is if so fact retired.
From the averments made in the writ petition, it is no where stated that the respondents have ever accepted the offer of the petitioner.
No case of interference under act 226 of the constitution of India is made. The writ petition is hereby dismissed with the observation that the petitioner can always approach by a suitable representation before the authority concerned."
5. It is contended that though Division Bench declined to interfere in the orders impugned before it, it permitted the petitioner to approach by a suitable representation before the authority concerned and when the petitioner submitted a representation dated 15.3.1999, again relying on his voluntary retirement with effect from 6.10.1994 by the order dated 14.11.2003, the request of the petitioner has been rejected. The said order has been challenged by way of amendment.
6. Shri Ajay Rajendra, learned counsel for the petitioner, submits that once after the expiry of three months period from the date of submission of application, the petitioner stood voluntary retired by deeming fiction contained under Rule 56 (C), no other proceedings shall be looked into and, therefore, rejection of the petitioner's claim on the ground that he was unauthorizedly absent for 10 years (w.e.f. 15.7.1990 to 31.12.2000) is not according to law. Reference to various communications exchanged between the parties to the lis has been made. He has also placed reliance upon a judgment of Division Bench of this Court in Dr.Hari Prasad Singh vs. State of UP and others, 2014 (1) ESC 110 (All) (DB).
7. Per contra, learned Standing Counsel argued that the claim of the petitioner is hit by the principle of res judicata as well as barred by Order II Rule 2 CPC inasmuch as when the petitioner filed writ petition in the year 1998 challenging the orders dated 9.6.1997 and 5.2.1998, claim for voluntary retirement had already been rejected by order dated 20.3.1997 and the petitioner chose not to challenge the same before the Writ Court. He further submits that while rejecting the claim of the petitioner, the Director had taken into consideration unauthorized absence of the petitioner and moving of successive applications from 1992 to 1993 requesting grant of leave and considering the same, every claim of the petitioner was rejected and, therefore, it is not open for the petitioner to reopen the closed issue.
8. Having heard learned counsel for the parties, I find that when the petitioner submitted application dated 11.7.1994, the department raised a dispute as if the said application was not received and by letter dated 21.7.1995 (Annexure-5 to the writ petition), the original application was not found available on record. Thereafter, the petitioner again sent its copy on 10.1.1995 and stuck to his stand that he would not withdraw the application for voluntary retirement.
9. It is further brought to the notice of the Court that the authorities asked the petitioner as to whether any departmental proceedings were pending against him or not and the petitioner satisfied the authorities by sending the letter that no departmental enquiry was pending or conducted. At one point of time, certain post retiral benefits were also computed and, therefore, it has been argued that once the respondents proceeded to compute the post retiral benefits, it would be deemed that they were treating the petitioner as voluntary retired and, therefore, whatever letters or orders were issued thereafter, become invalid and insignificant in view of deeming fiction attached to Rule 56 (C) of the Rules and as per the decision of the Division Bench in the case of Dr.Hari Prasad Singh (supra) and the judgment of Supreme Court in the case of State of Haryana and others vs. S.K. Singhal, 1999 (3) UPLBEC 2246; and various other decisions considered in the judgment of Dr. Hari Prasad Singh (supra).
10. Having heard learned counsel for the parties, I find that rejection of the claim of the petitioner by the order impugned dated 14.11.2003 on the ground that he was absent for certain period of time unauthorizedly appears to be in-ignorance of all the aforesaid aspects including the statutory mandate contained under Rule 56 (C) and the chronology of events, that is various letters exchanged in between the parties.
11. I also find that though the Division Bench dismissed the writ petition against the orders directing the petitioner to join the duties, it left it open to the petitioner to approach the authorities by means of a suitable representation and considering the contents of the order passed by Division Bench, in the opinion of the Court the issue of consideration of voluntary retirement pursuant to the application dated 11.7.1994 was also open to be pressed before the authorities.
12. In view of the above discussion, considering the reasoning assigned in the order impugned, the same appears to suffer from non-consideration of all the above aspects.
13. The writ petition is, accordingly, allowed in part setting aside the order impugned dated 14.11.2003 and the matter is remanded to respondent No.2-Director Technical Education, UP, Kanpur, to pass a fresh order in accordance with law in the light of Rule 56 (C) of the Rules vis-a-vis the correspondence exchanged in between the parties and also the law referred herein above.
14. The said decision shall be taken within four months from the date, a certified copy of this order is produced before the Director Technical Education, UP, Kanpur, along with a fresh application.
Order Date :- 23.8.2023
LN Tripathi
