Madhya Pradesh High Court
Ramesh Chandra Suneriya vs The State Of Madhya Pradesh on 1 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 1 st OF FEBRUARY, 2024
WRIT PETITION No. 10347 of 2023
BETWEEN:-
RAMESH CHANDRA SUNERIYA S/O BOULAJI
SUNERIYA, AGED 55 YEARS, OCCUPATION: RETIRED
PANCHAYAT COORDINATOR OFFICER R/O WARD NO.
12, GRAMGAGLAKHEDI, TEHSIL SHUJALPUR,
PATLAWADA, DISTRICT SHAJAPUR (MADHYA
PRADESH)
.....PETITIONER
(SHRI YASH NAGAR, COUNSEL FOR THE PETITIONER).
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, PANCHAYAT AND
RURAL DEVELOPMENT DEPARTMENT, BHOPAL
(MADHYA PRADESH)
2. COLLECTOR SHAJAPUR, DISTRICT SHAJAPUR
(MADHYA PRADESH)
3. COLLECTOR, AGAR MALWA, DISTRICT AGAR
MALWA (MADHYA PRADESH)
4. DISTRICT PENSION OFFICER, DISTRICT AGAR
MALWA (MADHYA PRADESH)
5. CHIEF EXECUTIVE OFFICER, JANPAD
PANCHAYAT NALKHEDA, DISTRICT AGAR
MALWA (MADHYA PRADESH)
6. CHIEF EXECUTIVE OFFICER, JILA PANCHAYAT,
DISTRICT SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
(MS. BHARTI LAKKAD, GOVERNMENT ADVOCATE FOR THE STATE).
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 03-02-
2024 11:15:15
2
following:
ORDER
This petitioner under Article 226 of the Constitution of India has been
filed by the petitioner being aggrieved by the order dated 15.11.2017 passed by
the respondent No.4 in Case No. prakaran/kramank/pension/2017/250.
2. Brief facts of the case are that the petitioner joined service as a Gram
Sahayak in the year 1993. After completing service of 15 years, he gave notice
in Form 28 on 09.04.2008 for voluntary retirement under the provisions of Rule
42 the Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter
referred to as 'Rules of 1976'). The respondent No. 2 accepted the said notice
and granted voluntary retirement to the petitioner vide order
kramank/sthapna/09/2904 dated 22.07.2009. The petitioner was retired from the
post of Panchayat Coordinator Officer and the same post holders are eligible
for grant of pension as per the Rules of 1976. Therefore, he approached the
respondents for payment of pension. However, the request was rejected on the
ground that the Rule 42 of the Rules of 1976 was amended vide letter dated
05.04.2006 and the qualifying service for eligibility of voluntary retirement was
amended to 20 years. Thereafter, he approached the respondents by way of
representations but it all went in vain. Hence, this petition.
3. Learned counsel for the petitioner contended that the respondent No.2
has wrongly passed the order granting him voluntary retirement before
completion of 20 years of services. He further submitted that the non-grant of
pension by taking into account the mistake of the respondent No.2 constituted
recurring cause of action, hence there is no delay in filing the present petition.
In support of his contentions, learned counsel for the petitioner has relied on the
judgment of the Apex Court in case of S.R.Bhanrale vs. Union of India,
(1996) 10 SCC 172; M.R.Gupta vs. Union of India, (1995) 5 SCC 628;
and Union of Inida & Ors. vs. Tarsem Singh, (2008) 8 SCC 648.
4. Per contra, learned counsel appearing for the respondents/State has
denied the contentions of the petitioner by filing a reply. It is contended that the
petitioner gave notice under Rule 42 of the Rules of 1976 when he has
completed only 15 years of qualifying service in the year 2008. However,
amendment in the Rules was already made effective from 05.04.2006 and the
qualifying service to opt for voluntary retirement was enhanced to 20 years.
That being so, in fact the notice of voluntary retirement given by the petitioner
was not to be accepted at all and he was not to be permitted to voluntary retire,
since the petitioner has not completed the qualifying service for the said
purpose. Therefore, the payment of pension was denied to the petitioner. It is
thus contended that the order is rightly passed and the relief claimed in the
petition cannot be granted.
5. Heard learned counsel for the parties.
6. The Rule 42 of the Rules of 1976, as amended on 05.04.2006
prescribes thus :
42. Retirement on completion of [20 years] qualifying service. - [(1) (a) A
Government servant may retire at any time after completing 20 years qualifying
service, by giving a notice in Form 28, to the appointing authority at least three months
before the date on which he wishes to retire or on payment by him of pay and
allowances for the period of three months or for the period by which the notice
actually given by him falls short of three months :
Provided that where the Government servant giving such notice is under suspension, he
shall not be allowed to retire from service without the prior permission in writing of the
appointing authority.
(b) The appointing authority may in the public interest require a Government servant to
retire from service at any time after he has completed [20 years qualifying service or he
attains the age of 50 years whichever is earlier], with the approval of the State
Government by giving him three months notice in Form 29 :
Provided that such Government servant may be retired forthwith and on such retirement
the Government servant shall be entitled to claim a sum equivalent to the amount of his
pay plus allowances for the period of the notice at the same rates at which he was
drawing then immediately before his retirement or, as the case may be, for the period by
which such notice falls short of three months.
Note 1. - Before a Government servant serves notice of retirement under clause (a)
above, he should satisfy himself by means of a reference to the appointing authority that
he has in fact, completed [20 years qualifying service or he attains the age of 50 years]
for pension. Similarly the appointing authority, while giving notice of retirement to a
Government servant under clause (b), above, should also satisfy itself, that the
Government servant has, in fact completed [20 years qualifying service or he attains the
age of 50 years] [xxx]
Note 2. - The period of notice of three months or notice period which is short of three
months, as the case may be, shall be reckoned from the date on which it is signed and
put in communication under registered post. Where the notice is served personally the
period shall be reckoned from date of receipt thereof.
Note 3. - The Government servant, on submission of an application shall be granted such
leave during the period of notice to which he is entitled according to rules :
Provided that no leave shall be granted beyond the expiry of the period of notice].
[Note 4. - The payment of pension for the period for which pay and allowances have
been paid to a Government servant in lieu of notice, shall be regulated by the provision of
sub-rule (2) of Rule 33 of these rules].
(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
on consideration of the circumstances of the case to withdraw the notice given by him :
Provided that the request for withdrawal shall be prior to the intended date of his
retirement.
(3) Where the notice of retirement has been served by appointing authority on the
Government servant, it may be withdrawn, if so desired for adequate reasons, provided
that the Government servant concerned is agreeable.
7. As per the above Rules, it is clear that no public servant could
relinquish the post on voluntary retirement without the permission of the
competent authority. Such permission is required to be granted keeping in view
the circumstances as stated under the Rules. From perusal of the order dated
22.07.2009, it is clear that voluntary retirement of the petitioner was accepted
with effect from 09.04.2008, though he had not completed qualifying service of
20 years on that day. In that case, the respondents were required to refuse the
grant of permission to the petitioner to voluntary retire and the petitioner would
have remained in the employment or could have exercised his option of
resigning from the post. Hence, the said order cannot be treated to be a
justified order by this Court.
8. So far as the issue with regard to entitlement of the petitioner to be
permitted to voluntary retirement prematurely when he has not completed the
requisite service of 20 years is concerned, it is seen that as per Rule 79 of the
Rules of 1976, the rules can be relaxed by the State Government. Specific
powers can be exercised by the State Government to relax a particular
provision of the Rules for a particular person, as special case. Therefore, it
would be appropriate to direct the respondents to consider whether the
petitioner is still to be permitted to voluntary retire with effect from the date he
has been permitted, though he has not completed the qualifying service, by
exercising the power to relax the Rules or to treat as if the petitioner has retired
from the date he had completed qualifying service. In either case, the petitioner
would be entitled to grant of pension.
9. The writ petition stands allowed. The order impugned dated
15.11.2017 is hereby quashed. The respondents are directed to take final
decision in the matter of permitting voluntary retirement of the petitioner as
indicated hereinabove, in exercise of powers of relaxation of Rules, as given in
Rule 79 of the Rules of 1976, within three months from the date of receipt of
the order passed today.
10. The writ petition is allowed to the extent indicated hereinabove. No
order as to cost.
(S. A. DHARMADHIKARI)
JUDGE
vidya
