Union Of India & Another vs Ved Prakash
2009 Latest Caselaw 2169 Del

                                REPORTABLE

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(C) No. 7754 of 2009

                                         Reserved on   : April 21, 2009
%                                        Pronounced on : May 29, 2009.

UNION OF INDIA & ANOTHER                                       . . . Petitioners
                    through :            Mr. R.N. Singh with Mr. A.S. Singh,
                                         Advocates.

                                VERSUS

VED PRAKASH                                                   . . . Respondent
                    through:             Mr. S.K. Sinha, Advocate.

CORAM :-
   THE HON'BLE MR. JUSTICE A.K. SIKRI
   THE HON'BLE MR. JUSTICE SURESH KAIT

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The issue involved in this case relates to the effect of application for

voluntary retirement submitted under Rule 48 of the CCS Pension

Rules, but withdrawn before the stipulated date and it is actually

accepted. The petitioners have also raised the issue of limitation in

filing OA by the respondent herein before the Tribunal which

according to the petitioner has not been rightly decided, as the OA

was time barred.

2. The facts are simple and largely remain undisputed. The respondent

herein was working as LDC with the petitioner and had rendered 30

years of service when he submitted the application dated 31.08.2006

seeking voluntary retirement with effect from 30.11.2006. He stated

that he was under depression on account of ailment of diabetic high

blood pressure and cardiac problem. Before this application of the

respondent containing proposal for voluntary retirement could be

accepted, the petitioner had a mind-change, which resulted in making

another request by the respondent to the petitioner in the form of

letter dated 10.10.2006 deciding to withdraw his request for voluntary

retirement. The petitioners considered his request for withdrawal and

rejected the same vide Office Order 29.11.2006. His initial request for

voluntary retirement was, thus, accepted and he was retired on

31.11.2006. He made a representation in this regard, which was also

turned down.

3. The respondent, therefore, approached the Tribunal and he filed OA

No. 581/2008 under Section 19 of the Administrative Tribunal Act on

27.02.2008. He challenged the rejection of his request for withdrawal

of voluntary retirement and contended that since he had withdrawn

his request, he could not have been retired on 30.11.2006. The

petitioners herein filed detailed counter reply contesting the aforesaid

plea of the respondent. After hearing the learned counsel for the

parties, the Tribunal vide its judgment dated 15.12.2008 has allowed

the OA by setting aside the impugned order holding that the

respondent is deemed to be in service with effect from 30.11.2006

and shall be entitled to all consequences including back wages,

seniority promotion and the intervening period to be treated as

qualifying service for pension.

4. Submission of the learned counsel for the petitioner before us was

that as per Rule 48(2) of CCS Pension Rule, 1972, a Government

servant who has elected to retire and has given the necessary

intimation to that effect to the Appointing Authority is precluded from

withdrawing his election subsequently except with the specific

approval of such authority, provided that the request for withdrawal is

also made within the intended date of his retirement. It was

submitted that the request of the respondent was turned down by the

Competent Authority after consulting the Department of Personnel

and Training. It was also contended that the OA was not

maintainable as time barred inasmuch as impugned office order

refusing the withdrawal, was passed on 29.11.2006 and the

respondent retired on 30.11.2006, whereas he had approached the

Tribunal only in February 2008. Learned counsel further submitted

that the issue of limitation was not even discussed and considered by

the Tribunal, though while taking note of the submissions of the

petitioner herein, which has specifically been taken note of in Para 5

of the impugned judgment.

5. It is not in dispute that plea of limitation was raised by the petitioners

herein, which has not been decided. On this ground, normally we

could have remitted the case back to the Tribunal. However, counsel

for both the parties submitted that this issue may be decided by this

Court itself as it is based on admitted factual position on record. We,

therefore, proceed to discuss this in the first instance.

Re: Limitation

6. Relevant dates for this purpose, some of which have already been

noted above, may be reiterated. On 29.11.2006 request for

withdrawal of voluntary retirement contained in letter dated

10.10.2006 was rejected; on 30.11.2006, orders for voluntary

retirement were passed accepting the request of the respondent

contained in his application dated 31.08.2006 (these two orders were

challenged in OA); on 23.12.2006, the respondent submitted his

representation/appeal to the Director General, Health Services for

setting aside the orders dated 29.11.2006 and on 30.11.2006

reinstating the respondent in service with all consequential benefits

followed by representations dated 07.04.2007, 24.07.2007 and

06.12.2007; on 31.01.2008, request of the respondent was rejected

stating as under:

"Rule 48 of CCS (Pension) Rules provides that a Government Servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the Appointing Authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority. Provided that the request for withdrawal shall be within the intended date of his retirement.

In view of the above position, the action taken by the Joint Director, CGHS, Meerut is in accordance with the Rules. He is not bound to consider the request for withdrawal of VRS notice in favour of Government employee."

7. On 27.02.2008, OA was filed. If the time is to be computed from

30.11.2006, the date of filing of the OA, the respondent took about 15

months in filing the OA from the date of impugned orders. Limitation,

which is provided under Section 21 of Administrative Tribunal Act, is

one year. However, Section 20 provides that before approaching the

Tribunal, the Departmental remedy should be exhausted. These two

provisions are reproduced below:

"Section 20: Application not to be admitted unless other remedies exhausted.- (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.

(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -

a) If a final order has been made by the government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or

b) Where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.

Section 21: Limitation - (1) A Tribunal shall into admit an application,-

a) In a case where a final order such as is mentioned in Clause (a) of Sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, on which such final order has been made.

b) In a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in Sub-section (a), where -

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and

(b) No proceedings for the redressal of such grievance had been commenced before the said date before any High Court.

The application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of Sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of Sub-section (1), or, as the case may be, the period of six months specified in Sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period."

8. A conjoint reading of the aforesaid provisions would demonstrate that

when the appeal/representation is filed, the aggrieved employee has

to approach the Tribunal within one year from the date of decision on

the said representation. If the representation/appeal is not decided

the concerned employee is required to approach the Tribunal after

waiting for six months, which would mean that he has to file the

application under Section 19 of the Administrative Tribunal Act within

18 months from the date of the decision. The aforesaid position is

authoritatively laid down by the Supreme Court in catena of

judgments interpreting Section 20 and 21 of the Administrative

Tribunal Act. Such position is well explained by the Supreme Court in

the case of S.S. Rathod Vs. State of Madhya Pradesh, AIR 1990

SC 10 in the following words:

"18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.

20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under Sub-section (3). The Civil Court's jurisdiction has been taken away by the Act and therefore as far as Government servants are concerned, Article 58 may not be evocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article

58.

22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of case of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed as representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."

9. Thus, if we proceed on the basis that first representation made was

not decided within six months, the respondent should have filed OA

within 18 months from the date of the impugned orders. On this

reckoning, the OA filed was within limitation.

10. In the present case, however, representation was specifically rejected

as late as on 31.08.2008. If one year period is given from this date,

then also OA filed by the respondent was within limitation. Thus,

from any angle the matter is looked into, the respondent‟s application

was not time barred and was rightly entertained by the Tribunal on

merits.

Re: On Merits:

11. Insofar as legal position de hors Rule 48 of CCS (Pension) Rules is

concerned, it is that a resignation or request for voluntary retirement

can be withdrawn by the employee before its acceptance by the

employer, provided it is withdrawn within the time fixed before the

proposed date of retirement. This principle is laid down by the

Supreme Court in canton of judgments followed by this Court in a

heap of case law. In the case of J.N. Srivasatava Vs. Union of Indi,

AIR 1998 (9) SCC 559, the Supreme Court was pleased to hold as

under:

"It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India, 1987 Supp SCC 228. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12- 1989 and when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age."

This view was reiterated by the Supreme Court in the case of

Sahmbhu Murari Sinha Vs. Project & Development India Ltd. and

Anr. , 2002 (3) SCC 437. As is clear from the following observations:

"18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end.

19. We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service."

12. At this stage, we refer to the issue involved, viz., what would be the

position having regard to Rule 48 (2) of the CCS (Pension) Rule, i.e.,

when a Government servant had elected to retire withdraws his

application but he is permitted to do so only with the specific approval

of Appointing Authority.

13. Rule 48 deals with the retirement on completion of 30 years of

qualifying service. This Rule permits such a government servant to

retire from service. For this purpose, he can give three months notice

in writing to the Appointing Authority. Certain contingencies are

stipulated in which choice to retire is not conferred upon a

government servant. We are not concerned with those

circumstances. Rule also provides that in case a government servant

is under suspension, it shall be open to the Appointing Authority to

withhold permission to such government servant to retire under this

Rule. Then comes Sub-rule (2) of Rule 48 CCS (Pension) Rules

which stipulates that a government servant, who has elected to retire

and has given the necessary intimation to that effect to the Appointing

Authority, is precluded from withdrawing his election subsequently

except with the specific approval of such authority. It is couched in

the following manner:

"Rule 48 (2): A government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the Appointing Authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority:

Provided that the request for withdrawal shall be within the intended date of his retirement."

14. Taking shelter of this Rule, submission of the petitioner is that it was

not open to the respondent to withdraw his notice of retirement and

specific approval of the Appointing Authority was necessary, which

approval was categorically denied. The Tribunal in the impugned

order has, however, observed that orders passed on 29.11.2006 not

allowing the respondent to withdraw his notice of retirement and

accepting his original request for retirement is non-speaking and

shows lack of application of mind. No doubt, in those cases where

the government servant after giving notice of retirement withdraws

the same within the intended date of his retirement and the

Disciplinary Authority does not grant approval to such a withdrawal, it

should record reasons for not accepting the plea of such government

servant. However, that would be when government servant gives the

ground on the basis of which there was a change of mind and on the

basis of which election to retire was sought to be withdrawn. In the

present case, the respondent did not give any such reasons in his

request dated 10.10.2006. When no ground was stipulated in the

communication dated 10.10.2006, the Appointing Authority could not

have given reasons as to why purported grounds were not found to

be proper, as no such ground was, in fact, stated in the application for

withdrawal. Orders of the Tribunal to this extent, does not appear to

be proper. In fact, while holding so, the Tribunal has gone into the

reasons, which were given by the respondent in his

representation/appeal dated 23.12.2006 to the higher authority, i.e.,

Director General, Legal Services. When those reasons were not

before the Appointing Authority to whom the request dated

10.10.2006 was made, how the Appointing Authority could deal with

the same? As fortiorary, the Tribunal also could into comment upon

the rejection dated 29.11.2006 passed by the Appointing Authority

when such reasons surfaced for the first time only in the

representation/appeal dated 23.12.2006.

15. Having said so, we are still of the opinion that in the given case when

the request for withdrawal was made within the intended date of

retirement, it should have been approved by the Appointing Authority.

Rule 48 (1) permits a government servant, on completion of 30 years

qualifying service, to opt for retirement from service. For this

purpose, he has to give three months notice and even if within this

period, the request is not accepted by specific orders, deeming

provision is made as per which it is presumed that such a request is

accepted and government servant retires on the expiry of three

months notice period. Second proviso to Sub-rule (1) of Rule 48

stipulates that the Appointing Authority can withhold permission to

retire in case government servant is under suspension. Likewise, in

the third proviso thereto, certain contingencies are mentioned in

which a government servant is not permitted to make a request for

his retirement. The intention is thus clear. If case does not fall under

the aforesaid categories, normally request for voluntary retirement is

to be accepted. Choice for this is left to the government servant. It is

for this reason, the Supreme Court also held in number of cases,

some of which have been taken note of above, that a government

servant has a right to withdraw the request for voluntary retirement

before it is accepted. Thus, when the government servant has a right to

withdraw his request once it is made within the intended date of retirement

and before its acceptance, there should be strong and justifiable reasons

for rejecting such a request for withdrawal. Otherwise such a refusal on

the part of the Appointing Authority would be arbitrary and irrational. It

is not explained as to why in the present case, the Appointing Authority

was compelled to reject the request of withdrawal made by the

respondent. Even if in the present case, it was not necessary to pass a

speaking order, there should have been some reasons in the file, at

least, before refusing to grant permission to withdraw the request of

voluntary retirement having regard to the fact that it is normally a right of

such a government servant to withdraw his request before its

acceptance. At least, before the Appellate Authority, the respondent

had stated that as he was suffering from multiple diseases, being fed up

with those diseases, he had made request for voluntary retirement in a

huff and thereafter good sense prevailed and he decided to withdraw his

request. Even when his representation/appeal was rejected by the

higher authority vide orders dated 31.08.2008, it is not clear as to

whether any consideration was bestowed on the ground given by the

respondent. In the case of Balbir Singh Negi Vs. Union of India &

Others, 1996 (1) SCC (L&S) 900, which was also a case under Rule 48

of the Pension Rules, the Supreme Court held that when the petitioner

had submitted his application in a huff for voluntary retirement and

thereafter came forward with an application for withdrawal, he should be

entitled to withdraw his resignation.

16. We are, therefore, of the opinion that decision of the Tribunal is right in

concluding that rejection of his request for voluntary retirement by the

petition was not proper. Therefore, orders dated 30.11.2006, retiring

the respondent from service has to be set aside.

17. At the same time, while giving relief, we have to keep in mind that the

respondent has also contributed to the situation, in which he has

landed himself. He moved representation dated 20.12.2006 and

thereafter for quite some time he did not approach the Tribunal.

Though the OA is not time barred, the respondent was also not

diligent in pursuing his remedy immediately after he was allowed to

retire from 30.11.2006. It has resulted in a situation where he has not

worked for all these period. In these circumstances, we are of the

view that though the respondent is entitled to reinstatement, seniority,

promotion, etc. and this intervening period should also be granted as

qualifying service for pension, insofar as salary for intervening period

is concerned, he is not entitled to the same on the principle of „no

work no pay‟ under the given situation. He, however, shall be paid

his salary with effect from 15.12.2008 when the Tribunal passed the

orders in his favour by allowing the OA.

18. Subject to the aforesaid modifications, the writ petition filed by the

petitioner is dismissed.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE May 29, 2009.

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