Manvendra Singh Rawat vs Union Of India & Ors.
2013 Latest Caselaw 3337 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) No.99/2012
%                                       Date of decision: 31st July, 2013
     MANVENDRA SINGH RAWAT                                      ..... Petitioner
                          Through    Mr.Dheeraj Kumar Nayal, Adv.

                          versus

     UNION OF INDIA & ORS.                             ..... Respondents

                   Through           Mr.Prasouk Jain, Adv.

     CORAM:
     HON'BLE MS. JUSTICE GITA MITTAL
     HON'BLE MS. JUSTICE DEEPA SHARMA

     GITA MITTAL, J (ORAL)

1. While serving as an Assistant Engineer (E & M) with the Field

Workshop of the General Reserve Engineer Force (GREF) of the Border

Security Force (BSF), the petitioner in the instant case sent a letter dated

17th August, 2010 to the Secretary of the Border Road Development

Board (BRDB) submitting that he had decided to take voluntary

retirement from service w.e.f. 1st December, 2010 (FN). The petitioner

stated in this application that he was giving three months notice of

voluntary retirement commencing from 1st September, 2010.

2. It is claimed that the petitioner withdrew this letter by a

communication dated 23rd November, 2010. In the present writ petition,

he is aggrieved by the refusal of the respondents to permit the withdrawal

and their decision to proceed in the matter having accepted the

resignation by an order passed on 15th November, 2010.

3. We have heard learned counsel for the parties and have also

perused the available records. Before us, the petitioner has filed a copy

of a letter dated 10th August, 2010 which he claims to have addressed to

the Secretary, BRDB informing him that he had rendered thirty years

qualifying service with the department and had decided to take voluntary

retirement from service w.e.f. 1st December, 2010 (FN) "at my own due

to my domestic compulsions". The petitioner also sought relaxation of

the requirement of three months notice and acceptance of the retirement

forthwith due to ill health. The petitioner pressed that the notice may be

accepted at the earliest and he may be allowed to proceed on voluntary

retirement.

4. The petitioner claims that due to his domestic problems, he had

proceeded on 26 days sanctioned leave w.e.f. 4 th October, 2010. While

he was on this leave, he had fallen ill due to his domestic problem and

intimated to the respondents vide an application dated 29th October, 2010

seeking extension of leave on medical ground. As he could not recover

from the illness again due to domestic problems, he intimated to the

respondents vide an application dated 16th November, 2010 requesting for

extension of leave on medical grounds. The petitioner claims that he

continued to be sick due to domestic problem and again intimated to the

respondents vide a communication dated 17th December, 2010 requesting

for extension of leave on medical grounds.

5. In the writ petition, the petitioner has claimed that finding

improvement in his family circumstances, he submitted an application

dated 23rd November, 2010 for withdrawal of his aforesaid application for

voluntary retirement. This application dated 23rd November, 2010 was

submitted under the provisions of Rule 48-A of the Central Civil Service

(Pension) Rules, 1972. The petitioner also sought further extension of

leave vide his application dated 29th December, 2010 on medical grounds.

6. The grievance of the petitioner is that the respondents issued a

memorandum dated 14th January, 2011 which was never served upon

him. It is complained that the respondents thereafter passed an order

dated 20th January, 2011 whereby he was discharged from service with

effect from the afore-noted date and intimated the petitioner, at his home

address that he has been discharged. The petitioner submits that as he

was on medical leave/extraordinary leave, he was unable to hand over the

charge.

7. It is noteworthy that even in the writ petition, the petitioner claims

to be seriously ill and needs treatment in the hospital and that he had

intimated the respondents vide an application dated 24th January, 2011

requesting for extension of leave on medical grounds.

8. The petitioner has also complained that the respondents have

passed the impugned order dated 1st February, 2011 whereby they have

intimated him that his application for withdrawal of voluntary retirement

had not been approved by the respondent no.1.

9. Though the above facts are not essential for adjudication of the

present writ petition, however, we have noted the same inasmuch as they

are indicative of the conduct of the petitioner and clearly manifest the

lack of intention on his part to continue to serve the respondents.

10. So far as the case of the respondents is concerned, it is contended

that the respondents accepted the petitioner's request for voluntary

retirement from service vide an order passed on 15th November, 2010.

11. The respondents submit that the order dated 15th November, 2010

was served upon the petitioner vide a letter dated 20th November, 2010.

To support their plea that the petitioner has been duly served with the

order of acceptance of his request for VRS, Mr. Prasouk Jain, learned

counsel for the respondents, has handed over a speed post receipt bearing

no.RLA No.3703 dated 23rd November, 2010 whereby the letter was

despatched to the petitioner.

12. It has further been contended by the respondents that the request

for withdrawal of voluntary retirement application has been processed in

accordance with Rule 48-A(4) of the CCS Pension Rules and that the

petitioner's request was rejected by the competent authority by its order

dated 14th January, 2011 (page 98)

13. The above narration of facts would show that so far as the

voluntary retirement of the petitioner was concerned, as per his request,

the same was to take effect w.e.f. 1st December, 2010 (F/N). The

petitioner made an application for withdrawal of the VRS application

vide his letter dated 23rd November, 2010. The competent authority did

not grant the prior permission for withdrawal of the VRS application.

The petitioner has continued to be on leave throughout the entire period.

14. In support of the writ petition, learned counsel for the petitioner

has placed reliance on the pronouncement reported at (2002) 2 Supreme

391 : AIR 2002 SC 1341 Shambhu Murari Sinha Vs. Project &

Development India Limited. Perusal of this case would show that the

Court has relied upon several binding judicial precedents wherein the

Supreme Court has reiterated the well settled principle that an employee

would be within his right to withdraw his option for voluntary retirement

even after its acceptance but before the actual date of release from

employment. The underlining principle is that the relationship of

employer and employee would come to an end on the date the retirement

would take effect. In this regard, in Shambhu Murari case, the Supreme

Court placed reliance on the Constitutional Bench pronouncement of the

Supreme Court reported at 1978 (2) SCC 301 Union of India Vs. Gopal

Chander& Ors., wherein the court held as follows:-

"In our opinion, none of the aforesaid reasons

given by the High Court for getting out of the ratio of Jai Ram's case AIR 1954 SC 584 is valid. Firstly, it was not a `casual' enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Raj Kumar's case, AIR 1969 SC 180. Secondly a proposal to retire from service/office and a tender to resign office from a future date, for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Ram's case.

15. The court has, therefore, laid down the general principle that in the

absence of a legal, contractual or constitutional bar, the prospective

resignation can be withdrawn at any time before it becomes effective and

it becomes effective when it opts to terminate the employment of the

office tenure of the resignor.

16. In the present case, so far as the voluntary retirement from service

is concerned, the petitioner had communicated an effective date of

voluntary resignation. However, so far as the withdrawal of the request is

concerned, Rule 48-A (4) of the "Central Civil Service (Pension) Rules,

1972 would govern the consideration. There is, therefore, a guiding and

binding legal prescription for consideration of a request for voluntary

retirement from service. This rule bound the respondents while

considering the petitioner's withdrawal application. It certainly binds our

consideration.

17. In view of the present consideration, it will be useful to set out the

Rule 48-A(4) of the CCS (Pension) Rules in extenso which reads as

follows:-

"48-A(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:

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

18. The only judicial pronouncement which has pointed out to us,

which has construed Rule 48-A(4) is reported at (1987) Suppl. 1 SCC

228 Balram Gupta Vs. Union of India. In this case, the appellant

offered to resign from service by the letter dated 24th December, 1980

w.e.f. 31st March, 1981 and according to the appellant, his resignation

would have been effective if accepted only from 31st March, 1981.

Before the resignation could have become effective, the appellant

withdrew the same by a letter dated 31st January, 1981. In the meantime,

however prior thereto, on 20th January, 1981, the respondents had

accepted the resignation through effective from 31st March, 1981. The

competent authority refused to grant approval to Balram Gupta's request

for withdrawal of the resignation or retirement application even though

the application for withdrawal had been made before the intended date of

retirement. (para 8 of the judgment)

The Supreme Court has pointed out that the normal rule which

prevails in 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 approval of

such authority.

19. The petitioner has sought to rely on Balram Gupta case (supra) in

which the appellant had sought to challenge the validity of Rule 48-A (4).

However, this issue was not examined by the court though the question as

to the correctness of the exercise of power under Sub-Rule 4 of Rule 48-

A was examined. The observations and findings of this court on this

aspect deserve to be considered in extenso. The Supreme Court while

referring to yet another prior judicial pronouncement reported at AIR

1981 SC 1829 Air India etc. Etc. Vs. Nirgesh Meerza etc. observed as

follows:-

11. xxx As mentioned hereinbefore the main question was whether the Sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the Sub-rule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether Sub-rule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot withdraw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether Sub-rule (4) of Rule 48-A of the

Pension Rules is valid or not. 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. The guidelines indicated are as follows:

"(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subsequently (but during the currency of the notice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant 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.

Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant concerned is agreeable."

12. In this case the guidelines are that ordinarily permission should not be granted 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. In the facts of the instant case such indication has been given. The

appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant."

20. It was on this background that the Supreme Court held that there

was no valid reason for the competent authority withholding the

permission by the respondent and the court further held that there had

been compliance with the above guidelines because the appellant had

indicated there was a change in the circumstances namely the persistent

and personal request from the staff members and relations which had

changed his attitude towards continuing in service and induced the

appellant to withdraw the notice. The court also noticed the practical

aspect of the issue observing that it was difficult to arrange one's future

with any amount of certainty, a certain amount of flexibility is required

and that if such flexibility does not jeopardize the government or

administration, the administration should be graceful enough to respond

and acknowledge the flexibility of human mind and attitude and allow the

appellant to withdraw his letter of retirement in the facts and

circumstances of the case. Thus, it was the desire of the employee to

continue to serve the organisation which had weighed with the court in

holding that his application for withdrawal of the resignation was

justified.

21. Certain essential facts in the present case which have been pointed

out by learned counsel for the respondents, deserve to be noted. It is

pointed out that the petitioner's application for withdrawal dated 23rd

November, 2010 (sent barely six days before the resignation became

effective) actually was not even sent in original with ink signatures. The

petitioner had directly sent this by a FAX communication to the Secretary

of the BRDB. This was certainly not a proper application in the file.

Several notings in the original record have been pointed out. The

petitioner had, thereafter, submitted an original ink signed application

only on the 28th November, 2010, barely two days before his resignation

took effect.

22. The petitioner being a Government employee, was well aware of

the requirement of Rule 48-A of the CCS Pension Rules which mandated

that he was required to obtain approval and he was precluded from

withdrawing his notice except with the "specific approval of such

authority". The clear rule prescription prohibited withdrawal of the

application without material change in the circumstances.

23. Coming now to the reasons given by the petitioner in his

withdrawal request dated 23rd November, 2010, the petitioner has stated

that he had come to know from reliable sources that he was in the

promotion zone and that a Departmental Promotion Committee was

under consideration of the UPSC which may get through any time within

a month or so. The petitioner stated that he had decided to take post

advantage of this promotion for which he was eligible and entitled before

going on voluntary retirement.

24. It is noteworthy that the petitioner did not make the remotest

suggestion that his domestic problems were over or that he had recovered

his health, the reason for which he had sought the voluntary retirement.

25. The communication dated 23rd November, 2010 was followed by a

letter dated 17th February, 2011 sent by the petitioner. In the letter dated

17th February, 2011, the petitioner had again stated that he was still

recovering from illness and likely to rejoin duties in the last week of the

month. He submitted that considering his "long dedicated and tough

service", he may be allowed to proceed on voluntary retirement w.e.f.

28th February, 2011 (AN). It is evident from the above that the petitioner

had no intention of continuing service. This request was reiterated in the

two legal notices dated 22nd February, 2011 (page 60) and 10th March,

2011 sent by the petitioner again requesting that he may be discharged

w.e.f. 28th February, 2011 (AN).

26. As noted above, the Supreme Court has clearly prescribed the

guidelines and has clearly laid down in Balram Gupta case (Supra) that

ordinarily, the permission should not be granted unless the officer is in a

position to show that there has been a material change in the

circumstances for which the notice of voluntary resignation was

originally given. The petitioner has nowhere stated that his domestic

problems were over or that he has recovered. On the contrary, the claim

in the leave applications of the petitioner was that he was still not well

and he purported to enclose medical certificates in support thereof.

27. Further, the petitioner's leave record would show that he was not in

good health when he submitted application dated 17 th August, 2010. He

was not in good health even on 23rd November, 2010 when he submitted

the application for withdrawal of VRS. As such, there was nothing which

would enable this court to come to the conclusion that there was any

material change in the circumstances in consideration of which the notice

was originally given.

28. Even if we hold that the petitioner's expectation that he would be

favourably considered by the Departmental Promotion Committee (DPC)

and would be entitled to promotion is a material consideration, the same

also loses any significance inasmuch as the petitioner has not prayed that

he may be continued in employment but merely pressed for his VRS to

be postponed to a date thereafter. This reason which is the sole reason set

out in the withdrawal letter dated 23rd November, 2011 is, therefore, of no

relevance so far as the present consideration is concerned.

29. We are pained also to note that in the instant case, we are not

satisfied about the bona fides of the petitioner. He opted to send a FAX

communication dated 23rd November, 2011, which was not a notice in the

eyes of law. He opted to send an ink signed communication on the eve of

his notified date of retirement i.e. 1st December, 2010. The petitioner

consciously and deliberately attempted to deprive the respondents of

reasonable time for a meaningful consideration of the matter in the spirit

and context of the guidelines governing the working of Rule 48-A (4) of

the CCS Pension Rules.

30. The petitioner in his letters does not say that he did not have

domestic problem which he purports to say in the writ petition. It is

dishonesty on the part of the petitioner that he did not join duties, falsely

claimed that he did not receive the communications from the respondents

and respondents were compelled to assume the deemed discharge on 20th

January, 2010 in the circumstances noted above.

In this background, the petitioner is disentitled to any relief as

prayed for.

This writ petition is dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE JULY 31, 2013 aa