Nilkanth S/O Ramji Akarte vs State Of Maharashtra, Through Its ...
2006 Latest Caselaw 625 Bom

JUDGMENT

D.D. Sinha, J.

Page 2424

1. Rule. Rule made returnable forthwith by consent of Mr. V.R. Thakur, learned Counsel for the petitioner and Mrs. T.D. Khade, learned AGP for the Respondents.

2. Mr. Thakur, learned Counsel for the petitioner, has submitted that on 17.3.1977 the petitioner was appointed in the post of Lecturer in Biochemistry in the Government Medical College, Nagpur. On 25.7.1994 the petitioner was promoted as Professor in Biochemistry and posted at Government Medical College, Nagpur. It is submitted that the petitioner was to be superannuated on 31.7.2006, however, just less than one year before his superannuation, he was transferred from Government Medical College, Nagpur, to Shri Vasantrao Naik Government Medical College, Yavatmal. The petitioner challenged the said order of transfer before the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur, however, could not get interim relief and therefore, petitioner was relieved by the respondents from Nagpur on 11.8.2005. Therefore, on 22.8.2005 the petitioner had no option but to join his duty at Vasatntrao Naik Government Medical College, Yavatmal.

3. Mr. Thakur, learned Counsel further contended that since the petitioner had to live alone at Yavatmal and being a heart patient, the petitioner find it extremely difficult to stay alone at Yavatmal and therefore, on Page 2425 19.10.2005 the petitioner gave three months notice of voluntary retirement under Rule 66(1) of the Maharashtra Civil Services (Pension) Rules, 1982, to the appointing authority through proper channel. The notice period was to expire on 18.1.2006.

4. Mr. Thakur, learned Counsel for the petitioner further contended that since there was no response/ communication from the respondents pursuant to the notice of voluntary retirement given by the petitioner, the petitioner wrote a letter dated 16.1.2006 to the Respondent No. 3 whereby it was communicated that the petitioner should be relieved on expiry of notice period as there was no refusal to grant permission for voluntary retirement. The counsel for the petitioner further contended that on 18.1.2006 the Respondent No. 3, Dean, Shri Vasnatrao Naik Government Medical College, Yavatmal, communicated to the petitioner that the issue about the voluntary retirement of the petitioner was pending before the Government for taking decision and therefore, his request for relieving from service could not be granted.

5. Mr. Thakur, learned Counsel for the petitioner, has further submitted that on 20.1.2006 petitioner once again wrote a letter to Respondent No. 1 and informed that by virtue of proviso to Sub- Rule (2) of Rule 66 of the Maharashtra Civil Services (Pension) Rules, 1982, his retirement has taken effect after expiry of notice period i.e. on 18.1.2006 and the appointing authority did not refuse the permission to retire voluntarily till 18.1.2006, is evident from the communication received by the petitioner dated 24.1.2006 from Respondent No. 3, wherein it is mentioned that the matter about voluntary retirement of the petitioner was under consideration of the Government and therefore, the petitioner could not be relieved.

6. Mr. Thakur, learned Counsel for the petitioner has contended that on 27.1.2006 the petitioner has moved an application for withdrawal of the case before the Maharashtra Administrative Tribunal since the petitioner stood voluntarily retired w.e.f. 18.1.2006. On 27.1.2006 the Tribunal permitted the petitioner to withdraw the Original Application No. 398/05. The petitioner on 8.2.2006 addressed the communication to Respondent No. 1 for releasing the pension and retiral benefits. On 22.2.2006 the petitioner has sent reminder to the Respondent No. 1 for release of pension and pensionery benefits. It is contended by the learned Counsel for the petitioner that Respondent No. 3 vide communication dated 22.2.2006 directed the petitioner to resume work at Government Medical College, Yavatmal, since the request of the petitioner for voluntary retirement was not granted in view of the shortage of teaching staff in the Medical College at Yavatmal. The petitioner was also threatened with the action if the petitioner fails to join the duties.

7. Mr. Thakur, learned Counsel for the petitioner further contended that since the petitioner stood voluntarily retired from service w.e.f. 18.1.2006, the communication dated 22.2.2006 issued by the respondent No. 3 to the petitioner cannot be sustained in law and therefore, the petitioner has approached this Court by filing the present writ petition for declaration that the petitioner stood voluntarily retired from service Page 2426 w.e.f. 18.1.2006 and for necessary directions to the respondents for release of pension and retiral benefits.

8. Mrs. Khade, learned AGP for respondents, has supported the stand taken by the respondents and has submitted that the request of the petitioner for voluntary retirement was rejected by the respondents and the petitioner was also communicated about the said rejection vide letter dated 3.2.2006 by Respondent No. 3. It is further contended that the request of the petitioner for voluntarily retirement was rejected by the respondents since there was shortage of teaching staff in the Government Medical College at Yavatmal.

9. We have given our anxious thoughts to the various contentions canvassed by the learned Counsel for the petitioner as well as learned AGP for respondents. Perused the Rule 66 of Maharashtra Civil Services (Pension) Rules. In the instant case, the following facts are not disputed.

(i) At the relevant time the petitioner was serving as Professor of Biochemistry and Head of the Department at Government Medical College, Yavatmal.

(ii) On 19.10.2005 the petitioner gave three months notice of voluntary retirement and the said period of three months was to expire on 18.1.2006.

(iii) On 19.10.2005 the petitioner has completed more than 20 years and less than 30 years of service in the Government Medical College.

(iv) On 16.1.2006 the petitioner wrote a letter to the Respondent No. 3 and communicated that he should be relieved on expiry of period of notice as there was no refusal to grant permission for his voluntary retirement.

(v) On 18.1.2006, Respondent No. 3 informed the petitioner that the matter regarding voluntary retirement of the petitioner was under consideration before the Government and the Government has not taken any decision.

(vi) The Respondent No. 3 vide letter dated 24.2.2006 again informed the petitioner that the matter about his voluntary retirement was pending consideration before the Government and therefore, petitioner cannot be released.

(vii) On 22.2.2006, Respondent No. 3, for the first time after the notice of voluntary retirement given by the petitioner, directed the petitioner to resume duty at Government Medical College, Yavatmal, as his request for voluntary retirement could not be considered in view of the shortage of teaching staff in the Medical College.

10. Before we consider the issue on merits, it will be appropriate for us to consider the purport of Rule 66 of the Maharashtra Civil Services Rules. The relevant part of Rule 66 reads thus:

Rule 66. 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 three months in writing to the appointing authority, retire from service.

Page 2427

(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.

11. The plain reading of the above referred Rule makes it implicitly clear that the person who is entitled to get voluntary retirement has to fulfill the following conditions.

(1) On the date of issuance of notice of voluntary retirement, such employee must have completed 20 years of qualifying service;

(2) The notice must be in writing; and

(3) Period of notice is three months.

12. Similarly, though Sub-rule (2) stipulates that the notice of voluntary retirement given under subrule (1) shall require acceptance by the competent authority, however, proviso to Rule 66 makes it clear 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. It is, therefore, evident that in absence of refusal by the appointing authority on or before the expiry of the period of notice, the employee automatically stands retired voluntarily from service on the date such period of notice expires.

13. In the instant case, three months notice of voluntary retirement was given by the petitioner on 19.10.2005. The said period of three months expires on 18.1.2006 and it is admitted position that on or before 18.1.2006 there was no refusal about the request made by the petitioner for voluntary retirement by the appointment authority and in absence thereof, by virtue of proviso to Rule 66, we have no hesitation to hold that the petitioner stood voluntarily retired from service w.e.f. 18.1.2006 and therefore, the further communication issued by Respondent No. 3 is completely misconceived and devoid of substance and cannot be sustained in law.

14. For the reasons stated herein above, we hereby declare that the petitioner stood voluntarily retired w.e.f. 18/1/2006 and we direct the respondents to release the pension and retiral benefits to which the petitioner is legally entitled to within a period of four months.

Rule made absolute in the above term. No order as to cost.