Delhi High Court
Sh. Bibhu Dutt Mishra vs Union Of India And Ors. on 26 May, 2022
$~J-1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on 01.12.2021
Judgment pronounced on 26.05.2022
+ W.P.(C) 4424/2019 & CM Nos. 19694/2019 & 1653/2021
BIBHU DUTT MISHRA ..... Petitioner
Through: Petitioner in-person
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr Hanu Bhaskar, CGSC.
W.P.(C) 4438/2019 & CM Nos. 19716/2019 & 1668/2021
BIBHU DUTT MISHRA ..... Petitioner
Through: Petitioner in-person
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr Hanu Bhaskar, CGSC.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE TALWANT SINGH
RAJIV SHAKDHER, J. :
TABLE OF CONTENTS
Preface: ............................................................................................................................... 1
Background
: ........................................................................................................................ 2
Submissions of the petitioner ............................................................................................ 13
Submissions advanced on behalf of the respondents ........................................................ 15
Analysis and Reasons ....................................................................................................... 16
Conclusion ........................................................................................................................ 28
Preface:
1. Although the above-captioned writ petitions are directed against the
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orders passed by the Central Administrative Tribunal [in short 'the
Tribunal'] in two separate Original Applications (OAs), they are not only
interconnected but also the parties to the lis are common.
2. The first writ petition i.e., W.P.(C)No.4424/2019 assails the order
dated 04.04.2019 passed by the Tribunal in O.A.No.3025/2017. The second
writ petition i.e., W.P.(C)No.4438/2019 lays a challenge to the charge memo
dated 08.03.2018 issued by respondent no.3 i.e., Chairperson, Central Board
of Direct Taxes (CBDT) [hereafter referred to as CBDT, unless the context
requires otherwise] as also the order dated 04.04.2019 passed by the
Tribunal in O.A.No.1381/2018.
3. It is pertinent to note that the short issue which arises for
consideration in the first writ petition is: whether the petitioner stood
voluntarily retired from service on expiry of his notice period i.e., w.e.f.
10.02.2016?
3.1. It is because the respondents contend to the contrary which has led to
the petitioner being issued the aforementioned charge memo dated
08.03.2018. Thus, the only charge levelled against the petitioner is that he
has remained absent from duty w.e.f. 11.02.2016.
3.2. Therefore, quite logically, if we were to conclude that the petitioner
had completed his qualifying period of service i.e., the period of 20 years as
of 10.02.2016, the impugned charge memo would fall by the wayside i.e.,
would have to be set aside.
Background:
4. To appreciate the issues that have been raised in the above-captioned
matters before us, the following broad facts are required to be noticed :
4.1. On 02.01.1996, the petitioner joined the Indian Revenue Service
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(IRS).
4.2. The petitioner on an understanding that he would complete 20 years
in service on 10.02.2016, served a notice on 06.11.2015, as required, on the
respondents under Rule 48A of the Central Civil Services (Pension) Rules,
1972 [in short "CCS(Pension) Rules"], seeking voluntary retirement.
4.3. According to the petitioner, on 10.02.2016, he had completed 20
years, 1 month and 10 days in service.
4.4. It appears that, on 07.01.2016, respondent no.3/CBDT advised the
petitioner, to serve a fresh notice, albeit after 02.01.2016, when, according to
him, the petitioner would have completed 20 years in service. This
communication though was forwarded to the Petitioner through the Principal
Chief Commissioner of Income Tax [hereafter referred to as " PCIT"]. In
other words, according to respondent no.3/CBDT, the notice dated
06.11.2015 was premature.
4.5. The petitioner responded to this communication that emanated from
respondent no.3/CBDT, via a reply dated 03.02.2016. In this reply, the
petitioner, in brief, took the position that as long as the petitioner retires
from service after completing the stipulated period, the fact that notice of
intent seeking voluntary retirement from service is served earlier than
provided under the extant regime would not render it untenable in law.
4.6. Given this position, respondent no.3/CBDT via communications dated
07.01.2016, 08.03.2016 and 12.09.2016 sought the advice of the Department
of Personnel and Training (DoPT). Concededly, the response of DoPT
[which is dated 23.12.2016], was in line with the stand taken by the
petitioner in his letter dated 03.02.2016. For the sake of convenience, the
relevant portion of DoPT's advice is set forth hereafter :
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"Department of Revenue may refer to their O.M. dated A-
38012/40/2015-AdVI(A) dated 12.09.2016 seeking clarification
regarding Voluntary Retirement notice of Sh. Bibhu Dutt Mishra,
CIT(DR), ITAT, New Delhi under Rule 48(A) of CCS (Pension
Rules), 1972.
2. Though the officer rendered VRS notice two months before
the completion of qualifying service, however, his intended date of
retirement was after [the] completion of twenty years of qualifying
service which is well under the rules. Hence, the Administrative
Department may not hold the permission to grant him voluntary
retirement and the officer may be allowed deemed retirement from
Govt. service w.e.f. 10.02.2016. In terms with [ sic: of ] sub-rule
(2) of Rule 48(A) of CCS (Pension) Rules, and[sic] his pensionery
benefits may be released.
3. This issues with the approval of Joint Secretary (GDT)."
4.7. The record shows that despite the advice tendered by the DoPT, the
matter concerning the date from which the petitioner would be deemed to
have voluntarily retired from service remained unsettled, as respondent
no.3/CBDT thereafter sought clarification from the PCIT qua the order
dated 03.11.2015, whereby respondent no.3/CBDT had, inter alia,
recommended conversion of Extraordinary Leave (EOL) [between
17.09.2003 to 31.10.2003 & 21.12.2003 to 04.02.2004] to Leave Not Due
(LND), albeit without a medical certificate.
4.8. Concededly, on 18.05.2017, the PCIT clarified that the
recommendation made vide order dated 03.11.2015 to, inter alia, convert
EOL to LND was made having regard to the note appended to Rule 10 of the
Central Civil Services (Leave) Rules, 1972 [in short "CCS (Leave) Rules].
4.9. Despite the clarification given by the PCIT on 18.05.2017, respondent
no.3/CBDT went ahead and revised its earlier order dated 03.11.2015, via
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order dated 24.08.2017. The impact of this order i.e., order dated 24.08.2017
was, that the petitioner fell short of the prescribed qualifying service i.e., 20
years as of 10.02.2016 by 32 days; although the total period which was
excluded from EOL, which was commuted to LND was 72 days.
5. It appears with the issuance of the order dated 24.08.2017 by
respondent no.3/CBDT, the petitioner was put in a tizzy, albeit briefly, and
hence, on 01.11.2017, he submitted a fresh notice of voluntary retirement
under Fundamental Rule 56(k)1. This was, however, withdrawn on
"F.R. 56
(k)(1) Any Government servant may, by giving notice of not less than three months in
writing to the appropriate authority, retire from service after he has attained the age of
fifty years, if he is in Group „A‟ or Group „B‟ service or post, (and had entered
Government service before attaining the age of thirty-five years), and in all other cases
after he has attained the age of fifty-five years:
Provided that-
(a) Not printed (Since Clause (e) has been Deleted)
(b) nothing in the clause shall also apply to a Government servant, including scientist
or technical expert who (i) is on assignment under the Indian Technical and Economic
Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid
Programmes, (ii) is posted abroad in a foreign-based office of a Ministry/Department and
(iii) goes on a specific contract assignment to a foreign Government unless, after having
been transferred to India, he has resumed the charge of the post in India and served for a
period of not less than one year; and
(c) it shall be open to the Appropriate Authority to withhold permission to a
Government servant, who seeks to retire under this clause, if-
(i) the Government servant is under suspension: or
(ii) a charge-sheet has been issued and the disciplinary proceedings are pending; or
(iii) if judicial proceedings on charges which may amount to grave misconduct, are
pending.
EXPLANATION.- For the purpose of this clause, judicial proceedings shall be deemed
to be pending, if a complaint or report of a police officer, of which the Magistrate takes
cognizance, has been made or filed in a criminal proceedings;
(i-A)(a)A Government servant referred to in sub-clause (1) may make a request in
writing to the Appointing Authority to accept notice of less than three months giving
reasons therefor;
(b) On receipt of a request under sub-clause (1-A)(a), the Appointing Authority may
consider such request for the curtailment of the period of notice of three months on
merits and if it is satisfied that the curtailment of the period of notice will not cause any
administrative inconvenience, the Appointing Authority may relax the requirement of
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29.11.2017. Notice dated 01.11.2017 was, concededly, treated as withdrawn
by the respondents, and since the petitioner had stopped reporting for duty
(based on his understanding) that he had retired from service w.e.f.,
10.02.2016, a notice dated 24.11.2017 was served on him to show cause as
to why the period of his absence from duty w.e.f. 11.02.2016, ought not to
be treated as an unauthorised absence.
5.1. The said notice, thus, proposed action against the petitioner for
violating provisions of Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil
Services (Conduct) Rules, 1964 [in short "CCS (Conduct) Rules"]. The
petitioner filed his response to the show cause notice dated 24.11.2017, on
06.12.2017. It appears that the matter did not rest with the aforementioned
show cause notice dated 24.11.2017. On 09.01.2018, the petitioner was
served with a second show cause notice dated 27.12.2017, which raised the
same issue and proposed a similar action which was suggested in the first
show cause notice.
5.2. Consequently, the petitioner on 12.01.2018 wrote back to respondent
no.3/CBDT stating that his reply dated 06.12.2017 to the first show cause
notice be treated as a reply to the second show cause notice.
6. In the meanwhile, the issuance of order dated 24.08.2017 had
impelled the petitioner to approach the Tribunal; the action filed was
notice of three months on the condition that the Government servant shall not apply for
commutation of a part of his pension before the expiry of the period of notice of three
months.
(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."
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numbered as O.A.No.3025/2017
6.1. The record shows that the petitioner had filed the said action [i.e.,
O.A.No.3025/2017], on 28.08.2017. The Tribunal, initially, allowed the said
O.A., via order dated 10.07.2018. The order was, however, recalled, via
order dated 22.01.2019, on the ground that the communication dated
07.01.2016 whereby respondent no.3/CBDT had asked the petitioner to
submit a fresh notice of voluntary retirement, albeit, after 02.01.2016, was
not brought to its attention.
6.2. Finally, O.A.No.3025/2017 was, as indicated above, ultimately
disposed of via order dated 04.04.2019; giving partial relief to the petitioner.
7. In the interregnum, in O.A. No.3025/2017, which was pending
adjudication, recovery proceedings that were likely to follow on the issuance
of the order dated 24.08.2017 were stayed by the Tribunal via order dated
12.09.2017.
7.1. Importantly, the other consequences of the order dated 24.08.2017
was the issuance of charge memo dated 08.03.2018. The charge memo,
along with a cover letter dated 15.03.2018, was received by the petitioner on
15.03.2018. As indicated right at the beginning of the narration of events,
the only charge levelled against the petitioner concerned his unauthorised
absence from duty since 11.02.2016.
7.2. Resultantly, on 28.03.2018, the petitioner filed a second action with
the Tribunal i.e., O.A. No.1381/2018. On 06.04.2018, the Tribunal admitted
the O.A. and stayed the disciplinary proceedings qua the petitioner, which
had been triggered via charge memo dated 08.03.2018.
7.3. The Tribunal, via its order dated 10.07.2018, allowed O.A.
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No.3025/2017, and, thus, in a sense, vindicated the petitioner's stand, which
is, that he stood retired from service w.e.f. 10.02.2016.
8. As far as O.A. No.1381/2018 was concerned, on 08.10.2018, an order
was passed by the Tribunal which reads as follows :
"This case presents an extraordinary situation. The applicant
submitted an application for voluntary retirement on 6.11.2015,
indicating the effective date of his retirement as 10.02.2016. A doubt
was expressed by the authority competent to accept the request for
voluntary retirement as to whether the application submitted before
completion of 20 years of service, can be accepted. The DoP&T
responded promptly on 23.12.2015 and has taken the view that since
the date of retirement is after 20 years, neither the request can be
rejected nor the retirement benefits can be withheld. Even this was not
acted upon by the concerned authority and the applicant had to file
OA 3025/2017.
It is during the pendency of that OA that the department has
chosen to issue a charge memo dated 8.03.2018 wherein the only
allegation is that the applicant did not attend office from 11.02.2016
onwards. There cannot be more arbitrary and vindictive exercise of
power than this. It also indicates the level to which an officer can be
harassed by his own department.
It is relevant to mention that OA 3025/2017 was allowed by this
Tribunal on 10.07.2018. Till today, no counter is filed by the
respondents in the present OA, nor the pensionary benefits are being
released to the applicant.
We direct that the entire file shall be produced before this
Tribunal so that we may fix the responsibility on the officer concerned
for this entire episode. List on 26.10.2018."
8.1. The said OA was, thereafter, taken up by the Tribunal on 26.10.2018.
Since on 26.10.2018, the record, as directed on the previous date, was not
produced, a direction was issued that the Chairperson, CBDT will remain
present before the Tribunal on 30.10.2018.
8.2. The record shows that on 30.10.2018, the Tribunal dispensed with the
personal presence of the Chairperson, CBDT.
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8.3. Since there was non-compliance with the Tribunal's judgement dated
10.07.2018, passed in OA No.3025/2017, which, as a consequential relief,
directed the respondents to release to the petitioner, the retirement benefits, a
contempt petition was filed by the petitioner i.e., CP No.671/2018, in and
about 01.11.2018.
8.4. It appears that the respondents apprehending an adverse order in the
contempt petition, preferred a review application i.e., RA No. 260/2018 qua
Tribunal's order dated 10.07.2018, passed in OA No.3025/2017. The review
application was accompanied by an application for condonation of delay i.e.,
MA No.5247/2018. As noticed above, the Tribunal via its order dated
22.01.2019 recalled its order dated 10.07.2018, passed in the
aforementioned O.A., on the ground that respondent no. 3's/CBDT's
communication dated 07.01.2016 had escaped its attention.
8.5. The Tribunal, via its final order dated 04.04.2019 [passed in O.A.
No.3025/2017], set aside the order dated 24.08.2017 passed by respondent
no.3/CBDT on the sole ground that the said order was passed without
issuing a show cause notice to the petitioner.
8.6. Consequentially, the petitioner's notice for voluntary retirement dated
06.11.2015 stood revived and, therefore, the Tribunal granted four weeks to
the respondents to act on the said notice. In effect, the said O.A. was partly
allowed by the Tribunal.
8.7. Resultantly, the second OA i.e., OA No.1381/2018, whereby
challenge had been laid to the charge memo dated 08.03.2018 was also
disposed of on the very same date i.e., 04.04.2019. The relevant part of the
said order is extracted hereafter :
"3. The charge memo is virtually a sequel to the proceedings to
notice for voluntary retirement from service. The applicant filed O.A.
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No.3025/2017 in relation thereto. Today itself, we partly allowed the
said O.A. through [a] separate order. Though several grounds are
urged in challenge to the charge memo, we are not impressed by
them.
4. The question as to whether the absence of the applicant was
authorised or not, needs to be examined on the basis of the
explanation, which the applicant may offer, and the inquiry if any
ordered by the disciplinary authority."
9. The petitioner was dissatisfied with the orders dated 04.04.2019
[passed in OA No.3025/2017 and 1381/2018 respectively], and, hence,
approached this court via the above-captioned writ petitions.
10. Before we proceed further, a short rewind of certain events which
occurred between September 2002 and February 2004 and, thereafter,
between January 2014 and up until 03.11.2015 are required to be noticed.
10.1. The reason why we chose to advert to these events is that these events
would have a bearing on the order dated 03.11.2015, passed by respondent
no.3/CBDT which was, as alluded to hereinabove, revised by respondent
no.3/CBDT via order dated 24.08.2017. It is this order whereby respondent
no.3/CBDT, as adverted to hereinabove, has concluded that the EOL granted
to the petitioner, albeit, without a medical certificate for the period spanning
between 06.11.2003 and 31.12.2003 (i.e., 56 days) as also between
20.01.2004 and 04.02.2004 (i.e., 16 days) cannot be counted as qualifying
service under Rule 21 of the CCS (Pension) Rules.
10.2. Thus, in effect, as of 10.02.2016 i.e., the date from which the
petitioner claims that he retired from service, is short of the prescribed
qualifying period in service by 32 days; the qualifying period of service
being 20 years.
11. Keeping in mind this prefatory note, it would be relevant to record the
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events concerning the saga relating to the application for grant of EOL by
the petitioner and its approval as a qualifying service by respondent
no.3/CBDT.
11.1. On 23.09.2002, the petitioner had applied for EOL commencing from
01.11.2002 up until 31.10.2003. The reason furnished in the application by
the petitioner was that he wanted to undertake self-training in the field of
Information Technology.
11.2. Evidently, respondent no.3/CBDT while approving the petitioner's
application for grant of EOL, based it on the personal requirement of the
petitioner rather than the ground put forth in the application. The petitioner
had no say in the reasons given by respondent no.3/CBDT for the grant of
EOL.
11.3. It appears that the petitioner sought an extension by a further period of
five months, which was approved by respondent no.3/CBDT. The extension
was again pivoted on personal grounds. The extended period would, as is
evident, come to an end on 31.03.2004. The record, however, reveals that
the petitioner rejoined his service little before the extended period of his
leave was to come to an end i.e., on 05.02.2004.
11.4. It is important to note that in the service book concerning the
petitioner, there was no reference to the fact that EOL granted to him would
not count as a qualifying service. However, when after the completion of 18
years in service, a statutory verification was carried out by the concerned
authority i.e., in and about 08.01.2014, based on the request of the petitioner
when the issue concerning treatment of the petitioner's EOL came to the
fore.
12. Accordingly, the petitioner, on 08.01.2014, preferred a representation
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with respondent no.3/CBDT for treating the EOL granted to him as a
qualifying service. Broadly, the petitioner articulated two grounds as to why,
according to him, EOL should be treated as a qualifying service. First, it was
applied for pursuing technical studies. Second, in the service book, there
was no reference, as noted above, to the fact that EOL would not count
towards qualifying service.
12.1. The record reveals that, on this aspect of the matter, the opinion of
DoPT was sought by the Ministry of Finance, Department of Revenue
(CBDT) vide communication dated 30.01.2014.
12.2. The DoPT, having considered the fact that the petitioner was granted
EOL for prosecuting higher technical studies through self-training, advised
on 18.02.2014 that the same would automatically "count" as a qualifying
service for pension as well as for increments without any further sanctions.
In this context, DoPT's Office Memorandum (OM) dated 18.02.1986 was
cited. Reference was also made to Rule 21 of the CCS (Pension) Rules,
which, according to DoPT, also adverted to qualifying service. Thus, in
effect, DoPT advised that decision could be taken based on OM dated
18.02.1986 with input from the Department of Pension & Pensioners'
Welfare insofar as Rule 21 of the CCS (Pension) Rules was concerned.
13. It appears that after the internal discussion as to whether EOL granted
to the petitioner should count towards his qualifying service, the petitioner's
representation dated 08.01.2014 was rejected on 05.11.2014, albeit, without
furnishing any reason. This propelled the petitioner to move the Tribunal
against the rejection of the representation for counting EOL granted to him
towards his qualifying service.
13.1. Consequently, on 28.01.2015, the petitioner instituted an action [i.e.,
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O.A.No.411/2015] in the Tribunal. It is while the aforementioned action was
pending consideration before the Tribunal that respondent no.3/CBDT
passed the order dated 03.11.2015, whereby the petitioner's EOL was
retrospectively commuted into Earned Leave (EL), Half-Pay Leave (HPL)
and LND.
13.2. Once this impediment was out of the way, as noticed above, the
petitioner served a notice dated 06.11.2015 on the concerned authority under
Rule 48-A of the CCS (Pension) Rules seeking voluntary retirement w.e.f.
10.02.2016.
14. Thus, the core issue which arises for consideration is: whether
respondent no.3/CBDT could have revised its order dated 03.11.2015
commuting the EOL granted to the petitioner, via order dated 24.08.2017?
Submissions of the petitioner
15. The petitioner, who appeared in person, after taking us through the
relevant record, submitted that the order dated 24.08.2017 was flawed, as it
failed to take into account the Note appended to Rule 10 of the CCS (Leave)
Rules.
15.1. The argument advanced was that the respondents had erroneously
concluded that the direction contained in the order dated 03.11.2015 which
commuted a part of the EOL as LND was contrary to Rule 31 of the CCS
(Leave) Rules.
15.2. According to the petitioner, the requirement of submitting a medical
certificate for leave categorized as LND would not apply to retrospective
commutation of EOL brought about by respondent no.3/CBDT, in the
exercise of powers under Rule 10 of the CCS (Leave) Rules. In support of
this plea, the petitioner relied upon the Note appended to Rule 10 of the CCS
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(Leave) Rules.
16. It was also the petitioner's submission that the order dated 03.11.2015
was passed after due consideration and, hence, the decision, taken to revise
the same via order dated 24.08.2017, was completely untenable in law. In
this connection, it was pointed out that the order dated 24.08.2017 was
passed by respondent no.3/CBDT, despite DoPT's advice dated 23.12.2016
to the contrary. Emphasis was also laid on the fact that this advice was
reiterated by the DoPT, on 10.02.2017.
16.1. The submission advanced was that once the petitioner had given
notice for seeking voluntary retirement under Rule 48-A of the CCS
(Pension) Rules, it became effective after the expiry of the notice period of
three months stipulated in sub-rule (1) of Rule 48-A of the CCS (Pension)
Rules unless the request was rejected before the expiry of the said period.
16.2. In support of this submission, our attention was also drawn to the
proviso appended to sub-rule (2) of Rule 48-A of the CCS (Pension) Rules
which indicated that the notice of voluntary retirement of not less than three
months had to be given in writing to the Appointing Authority, after the
concerned applicant/employee had completed 20 years of service and that
this notice required acceptance of the Appointing Authority. The proviso of
sub-rule (2) of Rule 48-A was relied upon by the petitioner to demonstrate
that since there was no refusal, the retirement became effective from the date
of expiry of the notice period i.e., 10.02.2016.
16.3. In other words, respondent no.3/CBDT did not have the power to
revise the order dated 03.11.2015 after the retirement became effective from
10.02.2016. As a corollary to this submission, the petitioner argued that the
charge memo dated 08.03.2018 [which is assailed in W.P.(C)No.4438/2019]
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cannot be sustained since the petitioner stood retired from service after
completing 20 years of service w.e.f. 10.02.2016.
16.4. The fact that the Tribunal, to begin with, had agreed that the petitioner
insofar as his deemed retirement and the error committed by the respondents
in issuing the charge memo dated 08.03.2018 was concerned, was sought to
be demonstrated by referring to the order dated 10.07.2018 passed in
O.A.No.3025/2017 as also orders dated 08.10.2018 and 26.10.2018 passed
in O.A.No.1381/2018 by the Tribunal.
16.5. In support of his pleas, the petitioner relied on the following
judgments :
(i) Union of India v. Surender Singh Parmar, (2015) 3 SCC 404
(ii) State Bank of Patiala v. Pritam Singh Bedi, (2014) 13 SCC 474
(iii) State of Haryana v. S.K. Singhal, (1999) 4 SCC 293
(iv) P.C. Sekhar v. New India Assurance Company Limited, 2019 SCC
OnLine Del 6633
(v) Tek Chand v. Dile Ram, (2001) 3 SCC 290
Submissions advanced on behalf of the respondents
17. On the other hand, Mr Hanu Bhaskar, who appeared on behalf of the
respondents, argued that the commutation of EOL by treating a part of the
period as LND without the medical certificate was clearly contrary to the
prescribed rules.
17.1. It was submitted by Mr Bhaskar that the requirement of submitting a
medical certificate can be waived only when LND is granted in continuation
of Maternity Leave or when it is granted to an adoptive mother, or even
when it is granted for Child Care Leave (CCL). It was, thus, Mr Bhaskar's
contention that since the petitioner's case did not fall within any of these
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exceptions, the commutation of EOL by treating 72 days as LND, albeit
without a medical certificate, was contrary to Rule 31 of the CCS (Leave)
Rules.
17.2. Besides this, Mr Bhaskar submitted that the reliance placed on the
Note appended to Rule 10 of the CCS (Leave) Rules was misconceived as
that Note itself made it clear that what was stated therein was subject to the
provisions of Rule 31. In support of his plea, Mr Bhaskar has also relied
upon the DoPT's advice dated 22.10.2018.
Analysis and Reasons
18. Having perused the record and considered the facts appearing in this
case, what emerges is as follows.
18.1. The petitioner had applied for EOL on 23.09.2002 for the period
spanning between 01.11.2002 and 31.10.2003 specifically on the ground that
he wished to carry out self-study in the field of Information Technology.
18.2. Respondent no.3/CBDT, on 18.10.2002, granted EOL to the
petitioner, as requested, albeit, on personal grounds; thus, in effect, altered
unilaterally the reason furnished by the petitioner in his application for grant
of EOL.
18.3. This leave was extended at the request of the petitioner till
31.03.2004. The petitioner, however, before the expiry of the extended
period of EOL, rejoined his duty on 05.02.2004.
18.4. In the petitioner's service book, there was no mention of the fact that
the EOL granted to him would not count towards qualifying service.
18.5. It was only in January 2014 when statutory verification of service
record was being carried out, that the issue concerning the EOL being
counted towards qualifying service came to the fore. The petitioner, as
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noticed above, made a representation for this purpose on 08.01.2014.
18.6. Respondent no.3/CBDT sought DoPT's view on whether or not EOL
sought by the petitioner for carrying out self-study in Information
Technology would count towards qualifying service. The DoPT rendered its
advice on 18.02.2014 holding, quite categorically, that leave granted for
prosecuting higher technical and scientific study in the petitioner's case
would count towards qualifying service for pension and increments without
further sanctions. It is important, therefore, at this stage, to quote the
relevant part of the DoPT's advice :
"3. On perusal of the record, it is revealed that the officer was
granted EOL vide Office Order dated 18.10.2002 & 31.10.2003
on personal grounds but it was not specifically mentioned grant of
reasons of EOL (i.e. for prosecuting higher technical studies).
However, the officer explicitly stated vide his application dated
23.09.2002 that he wished to update in the field of Information
Technology through self training. On the basis of the request, the
EOL was granted to the officer.
4. As per this Department's OM dated 18.02.1986, EOL
granted to a Government servant for prosecuting higher technical
& scientific studies shall automatically count as qualifying service
for pension and for increments without any further sanctions.
However, Rule 21 of the CCS (Pension) Rules, 1972 also explains
about the qualifying service etc.
5. The administrative Department may take administrative
decision as per this Department's OM dated 18.02.1986 and take
a view as to whether EOL was granted for prosecuting higher
technical scientific studies and consult Department of P&PW
regarding rule 21 of the CCS (Pension) Rules, 1972."
19. At this juncture, it would also be apposite to refer to the relevant part
of Rule 21 of the CCS (Pension) Rules :
"21. Counting of periods spent on leave.- All leave during service
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for which leave salary is payable and all extraordinary leave
granted on medical certificate shall count as qualifying service:
Provided that in the case of extraordinary leave other than
extraordinary leave granted on medical certificate, the appointing
authority may, at the time of granting such leave, allow the period
of that leave to count as qualifying service if such leave is granted
to a Government servant,-
(i) omitted
(ii) due to his inability to join or re-join duty on account of civil
commotion; or
(iii) for prosecuting higher scientific and technical studies."
20. Despite DoPT's advice that EOL granted for pursuing the technical
studies would count towards qualifying service, the petitioner's
representation was rejected by respondent no.3/CBDT on 05.11.2014.
20.1. Ultimately, as noted above, after the petitioner had escalated the
matter by filing a petition with the Tribunal, respondent no.3/CBDT vide
order dated 03.11.2015 retrospectively commuted the EOL granted to him
for the period spanning between 01.11.2002 and 04.02.2004, under various
heads including LND.
20.2. It is only thereafter, that on 06.11.2015, the petitioner gave the
prescribed three months' notice in writing to the Appointing Authority under
Rule 48-A of the CCS (Pension) Rules indicating therein unequivocally that
the notice period vis-a-vis his request for voluntary retirement would expire
on 10.02.2016.
20.3. Concededly, the only objection that respondent no.3/CBDT had, at
this juncture, was whether or not the notice dated 06.11.2015 served by the
petitioner was premature. This is evident upon a bare a perusal of the
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respondent no.3/CBDT's letters dated 07.01.2016, 08.03.2016 and
12.09.2016. On this aspect, respondent no.3/CBDT sought the advice of
DoPT.
20.4. The DoPT on two occasions i.e., 23.12.2016 and 10.02.2017
emphatically indicated that, although the petitioner's notice under Rule 48-A
of the CCS (Pension) Rules provided for a longer period for bringing about
employer-employee disengagement than the prescribed period of three
months, however, as long as his intended date of retirement fell after the
completion of qualifying service of 20 years, he would be deemed as having
retired from government service on 10.02.2016, in terms of the aforesaid
Rule. Given this position, DoPT had advised the respondents, in its
communication dated 23.12.2016 to release the petitioner's pensionary
benefits.
21. Therefore, what the record brings to the fore is once respondent
no.3/CBDT could not get its way as regards the validity of the notice dated
06.11.2015 submitted by the petitioner for seeking voluntary retirement, it
added another string to its bow by raking up an issue which stood closed
with the passing of the order dated 03.11.2015, whereby the petitioner's
EOL stood commuted. At this juncture, it may be relevant to refer to the
relevant parts of Rule 48-A of the CCS (Pension) Rules :
"48-A. 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 not less than three
months in writing to the Appointing Authority, retire from service.
xxx xxx xxx
(2) The notice of voluntary retirement given under sub-rule (1) shall
require acceptance by the Appointing Authority.
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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."
21.1. Clearly, a plain reading of the aforementioned rule would show that
all that the petitioner was required to do was to give a notice in writing of
not less than three months to the Appointing Authority of his intention to
retire from service. [See sub-rule (1) of Rule 48-A.]
21.2. Sub-rule (2) of Rule 48-A discloses that notice of voluntary retirement
submitted by the petitioner would not become effective till it was accepted
by the Appointing Authority. This provision, however, comes with a caveat,
which is, that if the Appointing Authority intends to refuse the grant of
permission sought for voluntary retirement, such intention has to be
communicated to the applicant (in this case the petitioner) before the expiry
of the period specified in the said notice failing which the retirement would
become effective from the date of expiry of the said period. [See proviso to
sub-rule (2) of Rule 48-A.]
22. Concededly, the respondents did not refuse in so many words the
permission sought by the petitioner for voluntary retirement; at least not on
the ground that his EOL was wrongly commuted on 03.11.2015. This is
clearly evident upon a plain reading of the relevant portion of respondent
no.3's/CBDT's communication dated 07.01.2016 :
"2. Rule 48 A of the CCS(Pension) Rules, 1972 provide that " at
any time after a Government servant has completed twenty years'
qualifying service, he may, by giving notice of not less than three
months in writing to the Appointing Authority, retire from service"
(copy enclosed). Accordingly, Shri Bibhu Dutt Mishra, CIT(DR),
ITAT, New Delhi had not completed 20 year of Qualifying Service
as on date of giving notice of VRS i.e 06.11.2015.
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3. It is, therefore, requested to advise to Shri Bibhu Dutt
Mishra, CIT(DR), ITAT, New Delhi to give a fresh notice of VRS
after completing 20 year of Qualifying Service under Rule 48 A of
COS Pension Rules, 1972."
22.1. A similar advice was given to the petitioner even on 08.03.2016,
albeit, after he had retired (based on his understanding) from service i.e., as
of 10.02.2016.
22.2. To our minds, the position, which obtained on 10.02.2016 [as
reflected in DoPT's communications dated 23.12.2016 and 10.02.2017], was
that the petitioner had completed his qualifying service.
22.3. Therefore, if this position holds, as correctly argued by the petitioner,
the respondent no.3/CBDT could not have unsettled the order dated
03.11.2015, concerning the commutation of EOL granted to the petitioner.
Thus, if the advice of the DoPT, the order dated 03.11.2015 and the notice
for seeking voluntary retirement dated 06.11.2015 [which was served by the
petitioner on the respondents] are kept in mind, then, one would have to
accept the submission of the petitioner that his retirement became effective
from the date of expiry of the period indicated in the said notice i.e.,
10.02.2016, given the fact that there was no refusal of the request made by
the petitioner before the expiry of the period specified in the notice. This
position is in conformity with the principle enunciated by the Supreme Court
in the judgment rendered in Tek Chand :
"32. Under sub-rule (1) of the said Rule, at any time after completion
of 20 years' qualifying service, a government servant could give
notice of not less than three months' in writing to the appointing
authority for retirement from service. Under sub-rule (2), voluntary
retirement given under sub-rule (1) shall require acceptance by the
appointing authority. In the proviso to sub-rule (2) of Rule 48-A, it is
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clearly stated that in case 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.
33. It is clear from sub-rule (2) of the Rule that the appointing
authority is required to accept the notice of voluntary retirement given
under sub-rule (1). It is open to the appointing authority to refuse also,
on whatever grounds available to it, but such refusal has to be before
the expiry of the period specified in the notice. The proviso to sub-
rule (2) is clear and certain in its terms. If 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 sought
for becomes effective from the date of expiry of the said period. In
this case, admittedly, the appointing authority did not refuse to grant
the permission for retirement to Nikka Ram before the expiry of the
period specified in the notice dated 5-12-1994. The learned Senior
Counsel for the respondent argued that the acceptance of voluntary
retirement by appointing authority in all cases is mandatory. In the
absence of such express acceptance the government servant continues
to be in service. In support of this submission, he drew our attention
to Rule 56(k) of the Fundamental Rules. He also submitted that
acceptance may be on a later date, that is, even after the expiry of the
period specified in the notice and the retirement could be effective
from the date specified in the notice. Since the proviso to sub-rule (2)
of Rule 48-A is clear in itself and the said Rule 48-A is self-contained,
in our opinion, it is unnecessary to look to other provisions, more so
in the light of law laid down by this Court. An argument that
acceptance can be even long after the date of the expiry of the period
specified in the notice and that the voluntary retirement may become
effective from the date specified in the notice, will lead to anomalous
situation. Take a case, if an application for voluntary retirement is
accepted few years later from the date specified in the notice and
voluntary retirement becomes operative from the date of expiry of the
notice period itself, what would be the position or status of such a
government servant during the period from the date of expiry of the
notice period up to the date of acceptance of the voluntary retirement
by the appointing authority? One either continues in service or does
not continue in service. It cannot be both that the voluntary retirement
could be effective from the date of expiry of the period mentioned in
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the notice and still a government servant could continue in service till
the voluntary retirement is accepted. The proviso to sub-rule (2) of
Rule 48-A of the Rules does not admit such situation."
[Also see observations made by the Supreme Court in S.K. Singhal, which
dealt with a pari materia rule i.e., rule 5.32(B) of the Punjab Civil Services
Rules (Vol. II) and was cited with approval in Tek Chand.]
23. However, even if we assume that respondent no.3/CBDT could
review its order dated 03.11.2015, what was needed to be ascertained is
whether the petitioner was required to furnish a medical certificate for the
period which was treated as LND.
23.1. Mr Bhaskar has relied upon Rule 31 of the CCS (Leave) Rules.
Concededly, the requirement to furnish a medical certificate where LND is
granted is waived in three situations i.e., where it is granted in continuation
of Maternity Leave or when it is granted to an adoptive mother and lastly, in
a case where it is granted as CCL.
23.2. However, when Rule 31 of the CCS (Leave) Rules is read in
conjunction with Rule 10 of the CCS (Leave) Rules, which confers powers
on the concerned authority to commute one kind of leave to another, as
correctly argued by the petitioner, it is evident that it has no application
where leave is commuted retrospectively. To appreciate this aspect of the
matter, the relevant rule is extracted hereafter :
"10. Commutation of one kind of leave into another
(1) At the request of a Government servant, the authority
which granted him leave may commute it retrospectively into
leave of a different kind which was due and admissible to him at
the time the leave was granted, but the Government servant
cannot claim such commutation as a matter of right.
Provided that no such request shall be considered unless
received by such authority, or any other authority designated in
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this behalf, within a period of 30 days of the concerned
Government servant joining his duty on the expiry of the relevant
spell of leave availed of by him.
(2) The commutation of one kind of leave into another shall
be subject to adjustment of leave salary on the basis of leave
finally granted to the Government servant, that is to say, any
amount paid to him in excess shall be recovered or any arrears
due to him shall be paid.
NOTE.- Extraordinary leave granted on medical certificate
or otherwise may be commuted retrospectively into leave not due
subject to the provisions of Rule 31."
23.3 A careful perusal of Rule 10 of the CCS (Leave) Rules would show
that if a request is made, the concerned authority which granted leave to the
applicant (in this case the petitioner) may commute the same retrospectively
into different kinds of leaves which were due and admissible to him at the
time when the leave was first granted. Sub-rule (1) of Rule 10 makes it clear
that the commutation of leave of one kind to another is at the discretion of
the authority and, hence, cannot be sought as a matter of right by the
applicant. The other condition that an applicant is required to fulfil is that a
request in this behalf i.e., commutation should be made within 30 days of
the applicant joining his duties on the expiry of the relevant spell of leave
availed by him.
23.4. It is not in dispute that when the petitioner was granted EOL, at that
juncture, there was no indication made that it would not qualify for
qualifying service. That the respondents were required to indicate as to
whether or not EOL granted to the petitioner would count towards the
qualifying service emerges upon a perusal of the Government of India's
decision dated 28.02.1976, as contained in Swamy's Pension Compilation on
page 58.
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"(1) Need for making proper entries for treatment of extraordinary
leave for pensionary benefits.- Under Rule 21 of the CCS (Pension)
Rules, 1972, extraordinary leave granted on [sic: a] medical
certificate qualifies for pension. The Appointing Authority may, at the
time of granting extra-ordinary leave, also allow the period of such
leave to count as qualifying for pension if the leave is granted to a
Government Servant-
(i) due to his inability to join or rejoin duty on account of civil
commotion, or
(ii) for prosecuting higher technical and scientific studies.
Extraordinary leave taken on other grounds is treated as non-
qualifying and, therefore, a definite entry is to be made in the
service records to that effect. Entries regarding service being
qualifying or otherwise are required to be made simultaneously
with the event. Even where this is not done, it should still be
possible to rectify the omission during the period allowed for
preparatory action i.e., from two years in advance of the
retirement date up to eight months before retirement. At the end
of that period, however (i.e., when the actual preparation of the
pension papers is taken in hand), no further enquiry into past
events or check of past records should be undertaken. Specific
entries in the service records regarding non-qualifying periods
will be taken note of and such periods excluded from the
service. All spells of extraordinary leave not covered by such
specific entries will be deemed to be qualifying service."
23.5. It is only when the petitioner applied for service verification, under
Rule 32 of the CCS (Pension) Rules, upon completion of 18 years of service
that the ambiguity came to the fore and, therefore, the petitioner was advised
to seek clarification from the Establishment Section of Ministry of Defence,
where he was posted on deputation, via communication dated 28.01.2014. It
is in this context that the petitioner had earlier made a representation to
respondent no.3/CBDT on 08.01.2014.
23.6. It is important to note that the Ministry of Defence on behalf of the
petitioner also made a reference to respondent no.3/CBDT on 06.02.2014.
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This is an aspect which emerges upon perusal of the petitioner's
communication dated 29.09.2015 addressed to the Member (P&V), CBDT.
23.7. Admittedly, the petitioner, as noted above, had rejoined his duties on
05.02.2004, which was much before the extended period of his EOL was to
expire i.e., 31.03.2004.
23.8. Because of the aforesaid circumstances, the petitioner, to our minds,
correctly assumed up until January 2014 that the EOL granted to him would
count towards qualifying service.
23.9. Therefore, in substance, the second condition provided in the proviso
appended to sub-rule (1) of Rule 10 of the CCS (Leave) Rules also stood
fulfilled or at the very least did not apply to him, as the confusion on this
score was caused by the respondents.
24. This brings us to the third limb of Rule 10, which is captured in the
Note. A careful perusal of the Note would show that Rule 10 permits EOL,
which is granted against a medical certificate or otherwise, to be commuted
retrospectively into LND subject to the provisions of Rule 31 of the CCS
(Leave) Rules.
24.1. Clearly, the expression "otherwise" excludes that part of Rule 31 of
the CCS (Leave) Rules, which requires an applicant to obtain a medical
certificate for commuting EOL to LND. The three exceptions where a
medical certificate is not required, as noticed above, would not apply to an
applicant who seeks commutation of EOL retrospectively into a leave of a
different kind. If the note is read in any other way, it would lead to a strained
construction.
24.2. Therefore, in our opinion, the stand of the respondents that because a
medical certificate was not taken, the retrospective commutation of EOL to
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the extent it was treated as LND via order dated 03.11.2015 was erroneous,
is misconceived.
25. This apart, we have serious doubt as to whether respondent
no.3/CBDT could have revised the order of commutation dated 03.11.2015,
via order dated 24.08.2017, when the petitioner based on order dated
03.11.2015, had taken steps to voluntary retire from service.
25.1. The petitioner was entitled to arrange his affairs after 10.02.2016, as
there was no refusal of the request made by him for being allowed to
voluntarily retire from service. To our minds, the petitioner's belief that he
had completed the prescribed period of qualifying service was correctly
rooted in the certificate dated 25.07.2017, issued by the respondents under
Rule 32 of the CCS (Pension) Rules, which clearly stated that he had put in
20 years 01 month and 10 days in service. The certificate in no uncertain
terms indicated that it shall be treated as "final", and will not be reopened
except when necessitated by a subsequent change in the rules and orders
under which service qualifies for pension.
25.2. Thus, the respondents' past conduct, as captured hereinabove, in our
view, would estop them from revisiting the order dated 03.11.2015. [See
Nandini Nitin Patil v. State of Maharashtra, 2000 SCC OnLine Bom 432.]
"10. The circular, dated 26 September 1988, no where mentioned that the said circular
or the scheme floated therein for voluntary retirement was subject to the approval of the
State Government. There was no such indication in the said circular, dated 26 September
1988. Consequently, petitioner was perfectly justified in accepting the representation
made by respondent 2-Corporation and accordingly she accepted voluntary retirement. In
other words, she accepted it to her prejudice by acting upon the said circular, dated 26
September 1988. In these circumstances, we are satisfied mat the respondent-Corporation
is estopped from denying the said benefit to the petitioner. The petitioner is entitled to
retirement compensation at the rate of three months' salary for each completed year of
service from 6 January 1984 to 6 December 1988 amounting to Rs. 37,500 after
deducting an amount or compensation of Rs. 17,334 which she has already received.
Thus she is entitled to balance amount of Rs. 20,166."
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If the respondents are permitted to revisit such orders, it would lead to
uncertainty for those who would want to arrange their affairs after having
made a request, as per the extant legal regime for seeking voluntary
retirement.
26. What has made the matters worse for the petitioner is the issuance of
the charge memo dated 08.03.2018; which is, concededly, the consequence
of respondent no.3/CBDT passing the order dated 24.08.2017.
26.1. Furthermore, in our view, the petitioner is right that the Tribunal in
setting aside the order dated 24.08.2017 via impugned order dated
04.04.2019 passed in O.A.No.3025/2017, did not address the principal and
core issues, firstly, as to whether the petitioner stood retired from service
w.e.f. 10.02.2016, and, secondly, as to whether respondent no.3's/CBDT's
order dated 24.08.2017 was based on a correct interpretation of Rule 10 read
with Note appended to it and Rule 31 of the CCS (Leave) Rules.
Conclusion
27. Given the reasons set forth above, we are of the opinion that the
prayers made in both writ petitions would have to be allowed.
27.1. Accordingly, the two separate but identical dated orders i.e., orders
dated 04.04.2019 passed in O.A.Nos.3025/2017 and 1381/2018, are set
aside.
27.2. The petitioner will be deemed as having retired from service on
10.02.2016. Consequentially, the charge memo dated 08.03.2018 shall stand
quashed.
27.3. Resultantly, the respondents will release the retiral dues payable to the
petitioner along with interest at the rate of 8% [simple] per annum,
commencing from 11.02.2016 which will run, till the date of payment.
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27.4. Furthermore, the respondents will also pay Rs.20,000/- as a cost, to
the petitioner.
27.5. Insofar as the payment of retiral dues with interest is concerned, the
appropriate amount will be remitted to the petitioner upon fulfilment of
necessary formalities, within four weeks.
27.6. The costs will also be remitted to the petitioner within the same
timeframe.
28. The writ petitions are disposed of in the aforesaid terms.
Consequently, pending applications shall stand closed.
(RAJIV SHAKDHER)
JUDGE
(TALWANT SINGH)
JUDGE
MAY 26, 2022/aj
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