Hareramacharya vs The Union Of India
2023 Latest Caselaw 155 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.38 of 2022
     ======================================================

Hareramacharya, son of Late Ramchandra Sharma, Resident of Village- Sharwanichak, Police Station-Masaurhi, District-Patna (wrongly mentioned in the Aadhar Card, Son of Ramchandra Sharma, Village-Hulasganj, Police Station-Hulasganj, District-Jehanabad).

... ... Petitioner/s Versus

1. The Union of India through Secretary, Ministry of Human Resources Development, New Delhi.

2. The Vice-Chancellor, Central Sanskrit University, Janakpuri, New Delhi.

3. The Registrar, Central Sanskrit University, Janakpuri, New Delhi.

4. The Managing Committee through its Chairman, Sriswami Parankushacharya Adarsh Sanskrit Mahavidayalay, Hulasganj (Gaya), at present-Jehanabad, Bihar.

5. The Deputy Secretary, Ministry of Education, Senior Secondary, Education Department, Shastri Bhawan, New Delhi.

6. The Deputy Educational Advisor, Ministry of Human Resources Development (Department of Education), New Delhi.

7. Sri Venkatesh Sharma, son of not known to the petitioner, Incharge Principal, Sriswami Parankushacharya Adarsh Sanskrit Mahavidyalaya, Hulasganj (Gaya), at present-Jehanabad, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ramakant Sharma, Sr. Adv.

Mr. Rajesh Kumar, Adv.

For the Respondent/s : Mr. Dr. K. N. Singh ( Asg ) For Respondent No.4&7 : Mr. P.K. Shahi, Sr. Adv.

Mr. Mukesh Kumar-I, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA CAV JUDGMENT Date : 11-01-2023

1. Heard the parties.

2. The brief facts which require to be noticed for

adjudication of this case are that the petitioner was appointed as

a Principal of Sriswami Parankushacharya Adarsh Sanskrit

Mahavidyalaya (hereinafter referred to as the 'Sanskrit College' Patna High Court CWJC No.38 of 2022 dt.11-01-2023

on 22nd February, 1990 and presently has been working on the

said post. The college receives financial assistance under the

scheme for institutions recognized as Adarsh Sanskrit

Mahavidyalaya with the Central Sanskrit University is the nodal

agency working for the Ministry of Education, Government of

India, which provides funds to it.

3. As per Clause 61 of the Revised Adarsh

Scheme, 2012, an employee may, by giving notice of one month,

in writing resign from the services of the institution. However,

the appointing authority may, at its discretion, waive the

condition of one month's notice.

4. The petitioner submitted an application online

vide letter dated 12.11.2021 to the Vice Chancellor of Central

Sanskrit University seeking voluntary retirement from the post

of Principal. The Vice Chancellor vide his letter no.633 dated

12.11.2021, sent a communication online to the Chairperson of

the Managing Committee giving his consent for accepting the

request of the VRS and communicated to the management of the

college to take steps to appoint senior most teacher on the post

of Principal. Accordingly, the Managing Committee held that

voluntary retirement of the petitioner was accepted on

12.11.2021 itself and proceeded to appoint respondent no.7 to Patna High Court CWJC No.38 of 2022 dt.11-01-2023

the post of Principal and communicated to the petitioner and

13.11.2021 the new incumbent joined on the post of Principal.

5. The petitioner sent a request for withdrawal

of his resignation letter on 14.11.2021 to the Vice Chancellor

pointing out that the retirement age has been increased to 65

years, and therefore, he would like to continue on the post of

Principal. The letter was addressed to the Vice Chancellor and

the same was further conveyed to the Management Committee

on 16.11.2021. The Deputy Secretary of the Government of

India conveyed the letter to the Vice Chancellor to take a

decision in view of withdrawal of the letter of voluntary

retirement. The petitioner has thereafter preferred writ petition

before this Court praying to direct the respondent to accept the

withdrawal of earlier request of VRS and he be allowed to

function as Principal.

6. Learned counsel for the petitioner submits

that the petitioner has been deprived to withdraw the voluntary

retirement application and if one month time has been provided

for notice in cases relating to resignation, the voluntary

retirement application filed by the petitioner could not have

been accepted on the same day, when the petitioner has sent it to

the Vice Chancellor at Delhi. Learned counsel submits that the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Central Sanskrit University's Vice Chancellor had only given

consent to allow voluntary retirement to the petitioner with

request to the Chairman of the managing committee to accept

the said voluntary retirement. Thus, on 12.11.2021, it can not be

said that the Vice Chancellor had accepted the voluntary

retirement of the petitioner but had only given his consent with

direction to the Chairman to accept it. However, the Chairman

on 12.11.2021 itself proceeded to pass a notification declaring

that the Vice chancellor has accepted the VRS and proceeded to

appoint respondent Venkatesh Sharma as Principal of the

college. Learned counsel submits that the order does not

mention of accepting voluntary retirement by the Chairman and

he has not been relieved from his duty. Learned counsel submits

that the order appears to have been back dated as it was not

possible as for having passed the order on the same day when

the petitioner has moved the application of voluntary retirement.

The original record of the management was also called for in the

Court and they have not been able to place any letter or facts by

which they were conveyed of the decisions of the Vice

chancellor on 12.11.2021 itself. Learned counsel submits that

the document of taking over charge signed by the new

incumbent dated 13.11.2021 is also wrongly dated as the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Chairman has accepted and received the said document only on

14.11.2021 as clearly seen from Annexure- H filed by the

respondent in their counter affidavit. On 14.11.2021, the

Chairman had already moved an application for withdrawal of

his VRS application filed on 12.11.2021. Within two days, the

respondents have acted in a hasty manner with the only purpose

to remove the petitioner from his post. Learned counsel submits

that the Apex Court in the case of Balram Gupta Vs. Union of

India & Anr. as reported in AIR 1987 SC 2354 has held that

an employee has a right to withdraw within the notice period

his VRS application. He also relied upon a judgment reported in

2001(1) SCC 158 as Union of India and Ors. Vs. Wing

Commander T. Parthasarthy. Learned counsel submits that

the Central Sanskrit University had written a letter on

02.12.2021 to the Chairman directing him to bring to the notice

about the action taken with reference to the letter of withdrawal

submitted by the petitioner dated 16.11.2021, and thus, it is

apparent that the Central Sanskrit University had no knowledge

of what happened with regard to the petition of the petitioner.

6. It is further stated that the VRS has become

effective only from the date it was approved i.e. 30.11.2021.

Before the approval, the petitioner cannot be treated to have Patna High Court CWJC No.38 of 2022 dt.11-01-2023

retired at the intervening period, since has already withdrawn

his application, there was no occasion to approve the voluntary

retirement application dated 12.11.2021, vide order dated

30.11.2021. Learned counsel submits that the orders dated

12.11.2021 and 30.11.2021, therefore deserve to be quashed.

7. Per contra, learned counsel for the college

submits that the college was recognized by the HRD

Government of India and as per the revised scheme issued on

29.06.2012, it was to be regulated as per the rules of Rastriya

Sanskrit Sansthan, a deemed University under the ministry of

Education Department, Government of India. The Managing

Committee of the college was to consist of one Chairperson

nominated by the Vice Chancellor with rest five members to be

nominated by the State Government, University parent body

institution and Rastriya Sanskrit Sansthan respectively. It is

submitted that the petitioner by his own volition had submitted

application seeking voluntary retirement on 12.11.2021

addressed to the Vice Chancellor, Central Sanskrit University.

The Vice Chancellor on the same day gave his consent for

accepting request of VRS with direction to Chairman to accept

the request and further appoint senior most teacher to the post of

Principal. On receipt of such communication, the Chairperson Patna High Court CWJC No.38 of 2022 dt.11-01-2023

accepted the request of the petitioner on 12.11.2021 and

appointed respondent no.7 to the post. Respondent no.7 joined

and took charge of the Principal and submitted his joining report

on 13.11.2021. It is further stated that the institution received a

letter dated 24.11.2021, written by the petitioner, wherein he

mentions about an earlier letter of 14.11.2021 and reminder

dated 16.11.2021, whereby he has withdrawn his request for

voluntary retirement. The Section Officer of the Central Sanskrit

University also communicated to the Managing Committee to

send a report with regard to withdrawal of the VRS. The

respondent has also stated that it is a private institution and run

by a private managing committee, and therefore, would not be

amenable to writ jurisdiction. Learned counsel has relied upon

the judgment reported in 1999(1) PLJR 529, AIR 1976 SC 888,

AIR 1987 SC 1422, 1987 PLJR 962 and 2011 (3) PLJR 120 in

support of his contentions on the ground of maintainability.

8. Learned counsel also relies on 2003 (3) SCC

393 in P. Lal Vs. Union of India to submit that once the

application of VRS has been accepted, the retirement becomes

effective and the master-servant relationship seizes and it would

be no more open to permit employee to withdraw his

application. It is further stated that the petitioner was to inform Patna High Court CWJC No.38 of 2022 dt.11-01-2023

about acceptance of his VRS application but the same was

refused to be acknowledged.

9. Separate counter affidavit has been filed by the

Rastriya Sanskrit Sansthan, which has also taken a preliminary

objection regarding maintainability of the writ petition, as

against them, it is stated that the Central Sanskrit University is

the nodal agency and it is submitted that the application for

voluntary retirement was forwarded to the appointing authority

by the Vice Chancellor on 12.11.2021. In view of clause- 31 of

revised Adarsh scheme, 2012, as the employer of the petitioner

was respondent no.4, who was to take a decision in the matter.

The University had placed the letter dated 12.11.2021 sent to the

college. It is further stated that a email was received on

14.11.2021 withdrawing the VRS application from the petitioner

and the same was forwarded on 16.11.2021 to the Chairman by

the University to take necessary action as per rules. The

ministry of education also conveyed to the University to take

decision with regard to withdrawal of VRS and the same request

letter was also sent to the college for taking necessary action.

The respondent no.4 Chairman has communicated to the

University on 03.12.2021 that there are several complaints

against the petitioner of financial irregularity and corruption, Patna High Court CWJC No.38 of 2022 dt.11-01-2023

and therefore, his application for withdrawal cannot be

accepted. The respondent no.4 had given charge of the Principal

to respondent no.7 and in its meeting held on 30.11.2021

confirmed the acceptance of the voluntary retirement of the

petitioner. The minutes of the meeting dated 30.11.2021 was

approved on 21.12.2021.

10. Apart from the aforesaid aspect it has been

also pointed out by the respondent University that as per bylaws

the retirement age of principal was 62 years and he was duty

bound to initiate process of retirement accordingly but he

continued to perform his duty illegally and therefore the

respondent no.4 accepted his voluntary retirement and

application for withdrawal of voluntary retirement cannot be

accepted.

11. Supplementary affidavit has also been filed by

the respondent no.4 and 7 stating that the petitioner is a non-

Ph.D. holder and a non-Ph.D. holder had to retire at the age of

62 years but he was discharging his duty even thereafter and he

cannot be continued up to the age of 65 years, therefore, when

he has already submitted VRS on 12.11.2021, there was no

occasion to allow withdrawal of his VRS. More so, as it had

been accepted on the same day. It would be apposite to quote Patna High Court CWJC No.38 of 2022 dt.11-01-2023

para-9 and 10 of supplementary affidavit, which are as under:-

"9. That it further transpires that the petitioner again wrote a letter dated 24.11.2021 addressed to the Vice-Chancellor of Central Sanskrit University. On perusal of Letter dated 24,11,2021, it appears that petitioner has tried to develop a concocted story saying that since no decision was taken on his request letter dated 12.11.2021 he withdrew his request on 14.11.2021. He has further mentioned that since no communication was received on his request made on 14.11.2021, he further reminded vide another letter dated 16.11.2021. In his letter dated 24.11.2021 he has made a request to consider his request dated 12.11.2021 as cancelled and permit him to function as principal of the said college. Petitioner also had written a letter to the Hon'ble Minister HRD Govt. of India on 25.11.2021.

10. That it may further be mentioned that none of the Letters dated 14.11.2021, 16.11.2021 and 24.11.2021 were sent to the Chairperson of the Managing Committee of the College."

12. I have considered the submissions.

13. The question whether the writ petition would

be maintainable under law. The question of maintainability of

the writ petition as against the respondents is no more res- Patna High Court CWJC No.38 of 2022 dt.11-01-2023

integra. A seven judges Bench have passed the judgment in the

case of Pradeep Kumar Biswas Vs. Indian Institute of

Chemical Biology & Others reported in (2002) 5 SCC 111.

The question in each case would be whether in the light of

cumulative facts has established that the body is financially,

functionally and administratively dominated by, or under the

control of the Government. Such control must be particular to

the body in question and must be pervasive. If the control is

merely regulatory whether under Statute or otherwise, it would

not serve to make the body within meaning of the State.

14. The aforesaid test, if applied to the present

case, this Court finds that the Sanskrit College is affiliated to the

Central Sanskrit University and the Adarsh Scheme 2012 lays

down the conditions of employment in the Adarsh Sanskrit

Colleges. The Scheme has been promulgated by the Central

Government and the Ministry of Education which provides the

funds.

15. Keeping in view thereto, this Court finds that

there is an administrative, financial and overall control on the

Sanskrit College by the Union of India through the Central

Sanskrit University while individual appointments in colleges may

be made by the governing body. However, the Adarsh Sanskrit

norms under the Scheme of 2012 had to be followed by Patna High Court CWJC No.38 of 2022 dt.11-01-2023

such employees.

16. In view thereof, the writ petition would lie

with regard to the relief claimed by the petitioner and the

objection regarding non-maintainability of the writ petition is

rejected.

17. Record was called for and perused by this

Court. From the averments above, it is apparent that the

petitioner had applied seeking voluntary retirement vide his

letter dated 12.11.2021. The same was sent to the Vice

Chancellor, Central Sanskrit Sansthan, Janakpuri, New Delhi.

The University has received the said letter. The in-charge of the

University has conveyed vide letter dated 12.11.2021 to the

Chairman informing that the Vice Chancellor of the University

has agreed to the voluntary retirement application submitted by

the petitioner and has further directed the Chairman to consider

the voluntary retirement application and sanctioned the same in

terms of para 31 of the regulations. The said letter does not

seem to have been sent by the email or by a fax. The original

record also does not reflect the letter having been sent by mail

or fax to the college. But the Chairman has issued a letter on

12.11.2021 mentioning of Vice Chancellor having accepted the

VRS application. The letter of withdrawal of voluntary Patna High Court CWJC No.38 of 2022 dt.11-01-2023

retirement has been sent on 14.11.2021 by the petitioner, which

has been duly received by mail and noticed on 15.11.2021 by

the office of the University. On 16.11.2021, the in-charge has

sent another letter to the Chairman with the copy to the

petitioner to take decision and further action on the application

seeking withdrawal of VRS. The acceptance of voluntary

retirement was approved by the managing committee in its

meeting held on 30.11.2021. In the said meeting the withdrawal

application moved by the petitioner was not placed by the

Chairman and the minutes of the meeting dated 30.11.2021 were

placed for approval before the managing committee on

21.12.2021. However, from the perusal of the minutes of the

meeting of the managing committee dated 21.12.2021, it

appears that the agenda placed before the managing committee

only refers to appointment of Venkatesh Sharma as Principal on

the voluntary retirement submitted by the erstwhile principal

namely the petitioner. As per the agenda- 6, the voluntary

retirement application was accepted by the managing committee

but it does not mention about the petitioner having withdrawn

his voluntary retirement application dated 12.11.2021 on

14.11.2021. It also does not refer to the subsequent

communication made by the Central Sanskrit University to the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Chairman. Be that as it may, this court finds that the approval of

voluntary retirement of the petitioner has been made only on

21.12.2021. The managing committee had initially approved the

same on 30.11.2021. Before these two dates namely, 30.11.2021

and 21.12.2021 the petitioner had already withdrawn his

voluntary retirement application on 14.11.2021. It would be

apposite to quote the notification dated 12.11.2021 issued by the

Chairman:-

v/;{k izcU/k lfefr] Jh Lokeh ijkMx"kkpk;Z vkn"kZ laLd`r egkfo?kky;] gqyklxat] x;k]fcgkjA

vf/klwpuk

Jh gjsjke "kekZ] izkpk;Z] vkn"kZ laLd`r egkfo?kky;] gqyklxat] x;k us 12-11-2021 frfFk dks vius i= esa dsUnzh; fo"ofo?kky;] ubZ fnYyh] ds dqyifr ls viuh LoSfPNd lsokfuo`fr ds fy, fuosnu fd;k gS] ftls ekuuh;

dqyifr egksn; us vkn"kZ laLd`r egkfo?kky; dh fu;ekoyh dh dafMdk 31 ds vUrxZr fopkj djrs gq, Lohdkj dj fy;k gSA vr% mi;ZqDr egkfo?kky; ds fofj'Bre izk/;kid Jh osadVs"k "kekZ dks lJe inkf/kdkjh ds funsZ"kkuqlkj izkpk;Z in ij fu;qDr fd;k tkrk gSA

(izks0 jke foykl pkS/kjh) v/;{k] izcU/k lfefr Jh Lokeh ijkMx"kkpk;Z vkn"kZ laLd`r egkfo?kky;] gqyklxat] x;k]fcgkj izfrfyfi izsf'kr 1- dsUnzh; laLd`r fo"ofo?kky;

ubZ fnYyh 2- Jh osadVs"k "kekZ fofj'Bre izk/;kid Jh Lokeh ijkMx"kkpk;Z vkn"kZ laLd`r egkfo?kky;] gqyklxat] x;k]fcgkj 3- Jh gjsjke "kekZ] izkpk;Z] Patna High Court CWJC No.38 of 2022 dt.11-01-2023

vkn"kZ laLd`r egkfo?kky;] gqyklxat] x;k 4- v/;{k ekr`laLFkk

18. From perusal of the order passed by the

Chairman, it is apparent that the Chairman has not himself

accepted the VRS application but only mentions that the Vice

Chancellor has accepted the VRS application in terms of para-

31 of the regulation. Whereas the Vice Chancellor had

forwarded the application dated 12.11.2021 to the Chairman for

taking decision at his own level. The letter, therefore, cannot be

treated to be an acceptance by the Chairman of the managing

committee and since specific stand has been taken by the

Central Sanskrit University that the Vice Chancellor will not be

the authority to accept the voluntary retirement application. The

notification issued by the Chairman holding the acceptance of

the petitioner's voluntary retirement by the Vice Chancellor is

found to be erroneous and vitiated the law. This Court further

agrees with the contentions of the petitioner that the VRS

application was a ruse to remove the petitioner as it has come on

record the Chairman has refused to consider the withdrawal of

the VRS application on the ground that there are allegations

against the petitioner. This court has a firm view that withdrawal

of VRS application cannot be rejected on such grounds. In case

of Union of India Vs. Gopal Chandra Mishra reported in Patna High Court CWJC No.38 of 2022 dt.11-01-2023

1978(2) SCC 301, Constitution Bench held as under:-

50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office- tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right, or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his office-

tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such Writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge. can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Constitution does not bar such withdrawal.

19. Thus, a premature retirement would become

effective only from the date the competent authority accepts the

same. As has come on record, the Chairman has not himself

accepted the VRS application but only mentions about the Vice

Chancellor having accepted it, who was not a competent

authority. In view thereof, a presumption cannot be drawn that

the VRS application was accepted by the Chairman.

20. Further, the managing committee has

accepted the voluntary retirement only on 30.11.2021 in its

meeting held on 30.11.2021 and approval of its minutes has

been made on 21.12.2021. Before the said dates, the petitioner

had the locus poenitentiae to withdraw his VRS application. In

case of Union of India Vs. Wing Commander T.

Parthasarthi, reported in (2001) 1 SCC 158, the Supreme court

was seen with a similar issue and he gave a finding as under:-

8. So far as the case in hand is concerned, nothing in the form of any statutory rules or any provision of any Act has been brought to our notice which could be said to impede or deny this right of the appellants. On the other hand, not only the acceptance of the request by the headquarters, the appropriate authority, was said to have been made only on 20-2-

1986, a day after the respondent Patna High Court CWJC No.38 of 2022 dt.11-01-2023

withdrew his request for premature retirement but even such acceptance in this case was to be effective from a future date namely 31-8-1986. Consequently, it could not be legitimately contended by the appellants that there was any cessation of the relationship of master and servant between the Department and the respondent at any rate before 31-8-

1986. While that be the position inevitably the respondent had a right and was entitled to withdraw or revoke his request earlier made before it ever really and effectively became effective.

21. Similar view has been taken by the Supreme

Court in case of J. N. Srivastava Vs. UOI & Anr. reported in

(1998) 9 SCC 559.

22. In case of State Bank of India Vs. P.

Chakravorthy reported in AIR 1999 SC 2282, the Apex Court

has held as under:-

2. While allowing the writ appeal filed by

the respondent the High Court passed the following order:

"In the result, we dispose of this appeal by directing that the Deputy Managing Director (Personnel), Central Office, State Bank of India will take decisions on the voluntary retirement of the appellant and his promotion and his salary and allowances keeping in mind the observations made in this judgment as well as the notice dated 27-6-1994 of the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

appellant revoking his notice to retire voluntarily from service. The said decisions will be taken by the said competent authority within two months from today and the amounts paid to the appellant pursuant to interim orders passed by this Court will be adjusted against the salary or terminal benefits of the appellant, as the case may be."

3. Taking all the facts and circumstances into consideration we do not think that it is appropriate in this case to interfere with the judgment of the High Court in exercise of our jurisdiction under Article 136 of the Constitution.

23. In State of Haryana & Ors. Vs. S. K.

Singhal reported in 1999 (4) SCC 293, the Apex Court has held

as under:-

9. The employment of government servants is governed by rules. These rules provide a particular age as the age of superannuation. Nonetheless, the rules confer a right on the Government to compulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has completed a particular number of years of qualifying service in case it is found that his service has not been found to be satisfactory. The rules also provide that an employee who has completed the said number of years in his age or who has Patna High Court CWJC No.38 of 2022 dt.11-01-2023

completed the prescribed number of years of qualifying service could give notice of, say, three months that he would voluntarily retire on the expiry of the said period of three months. Some rules are couched in language which results in an automatic retirement of the employee upon the expiry of the period specified in the employee's notice. On the other hand, certain rules in some other departments are couched in language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance is communicated; refusal of permission could also be communicated after 3 months and the employee continues to be in service. Cases like Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] , B.J.

Shelat v. State of Gujarat [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] and Union of India v. Sayed Muzaffar Mir [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] belong to the former category where it is held that upon the expiry of the period, the voluntary retirement takes effect automatically as no order of refusal is passed within the notice period. On the other hand H.P. Horticultural Produce Marketing & Processing Corpn.

Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Ltd. v. Suman Behari Sharma [(1996) 4 SCC 584 : 1996 SCC (L&S) 1056] belongs to the second category where the bye-laws were interpreted as not giving an option "to retire" but only provided a limited right to "seek" retirement thereby implying the need for a consent of the employer even if the period of the notice has elapsed. We shall refer to these two categories in some detail.

13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma case [(1977) 4 SCC 441 : 1978 SCC (L&S) 7] by the relevant rules and there is no provision in the rules to withhold permission in certain contingencies the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat case [(1978) 2 SCC 202 :

1978 SCC (L&S) 208] and as in Sayed Muzaffar Mir case [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] the authority concerned is empowered to withhold permission to retire if certain conditions exist, viz., in case the employee is under suspension or in case a departmental enquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation does not result in the notice for voluntary retirement not coming into effect on the Patna High Court CWJC No.38 of 2022 dt.11-01-2023

expiry of the period specified. What is further needed is that the authority concerned must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat case [(1978) 2 SCC 202 : 1978 SCC (L&S) 208] and in Sayed Muzaffar Mir case [1995 Supp (1) SCC 76 : 1995 SCC (L&S) 256] before the expiry of the notice period. Consequently, there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non-

communication of acceptance should be treated as amounting to withholding of permission.

24. In Srikantha S.M. Vs. Bharat Earth

Movers Ltd. reported in 2005 (8) SCC 314, the employee

resigned and sought to be relieved as per rules. The company

granted him casual leave informing that he would be relieved at

the close of the day immediately next to the day of expiry of the

said casual leave period. Before that day, the employee had sent

a letter to the company withdrawing his resignation. The Apex

Court held that he would be treated to have remained in service

and therefore he had a right to withdraw his resignation before

that day.

25. In New Victoria Mills & Ors Vs. Shrikant Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Arya, reported in 2021 SCC online SC 808, the Apex Court

was examining the case where the company had floated a

voluntary retirement scheme. The respondent had availed the

opportunity under the scheme requesting him to accept

resignation of the applicant by making sure that payment of all

benefits of service period be provided to the applicant.

31. We have examined the factual contours of the current controversy in the conspectus of the legal position set forth aforesaid. In fact, if one looks to the different judgments cited from both sides, there are actually factual nuances which have led to one result or the other. The factual nuances have to be most importantly examined in the context of the scheme which applies, as the present case is not one of resignation per se but that of exercising an option available under the MVRS.

26. Thus, from the discussions in the latest

judgment passed by the Apex Court, it is apparent that the case

has to be examined on its own fact.

27. In the present case, there is one other aspect

which is also required to be noticed and i.e. the effect of

superannuation does not deny that the petitioner is a non-Ph.D.

and as per UGC rules, he attains superannuation on completing

62 years of age. The Supreme Court in case of Balbir Singh

Negi Vs. Union of India & Others reported in 1996(8) SCC

283 examined the concept of superannuation as under:- Patna High Court CWJC No.38 of 2022 dt.11-01-2023

1. The SLP is filed against the order of the Central Administrative Tribunal, Chandigarh Bench, Circuit at Shimla made on 17-11-1995 in OA No. 758/HP/91. The petitioner, admittedly, after completing his 33 years of qualifying service submitted, on 18-2-1991, an application for voluntary retirement under Section 48-A of Pension Rules which came to be accepted on 2-5-

1991 w.e.f. 30-6-1991 as requested by him. After the receipt of this letter and acceptance on the even date, namely, 2-5- 1991 and of another letter dated 23-5-1991, he sought to withdraw his application for voluntary retirement which he had submitted but was not accepted by the authorities. Thereafter, he filed OA in the Tribunal contending that he is entitled to withdraw his application before the relationship of master and servant becomes operative, i.e., 1-7-1991. Acceptance of his resignation before that date, i.e., 30-6-1991 is not valid in law. Under Rule 48-A of the Pension Rules, a government servant, on completion of the required period of service, is entitled to make a request for voluntary retirement. Admittedly, that request was acceded to and resignation was accepted. The learned counsel for the petitioner sought to rely upon the judgment of this Court in Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] in which this Court had held that a government servant after making the application but before it becomes effective and the relationship of master and servant ceases to operate, is entitled to withdraw the resignation. In that case, on the facts and circumstances, it was held that he was pressurised in the first instance to voluntarily retire. With a view to get it over he had submitted his application for voluntary retirement. Subsequently, he reconciled. The entitlement to withdraw the application for voluntary retirement was accepted by this Court. It is seen that in this case, admittedly, the petitioner has stated that he was on leave for one year prior to the date of seeking voluntary retirement on Patna High Court CWJC No.38 of 2022 dt.11-01-2023

medical grounds and he was unable to discharge the duties and that, therefore, he had sought to voluntarily retire from service. It would appear that when he was transferred from Shimla to Faridabad, he had submitted his application in a huff for voluntary retirement and that thereafter he came forward with the application for withdrawal. It is true that the petitioner was entitled to withdraw the resignation. But in view of the fact that he has already attained the superannuation in normal circumstances on 28-2-1994, no useful purpose will be served by giving direction to permit him to withdraw his application.

28. Having noticed the law as above, if examined

the factual aspect this court finds that the petitioner's

application for withdrawal of VRS was not considered by the

managing committee before approving his VRS application.

This Court has already noticed that the Chairman has not

accepted the voluntary retirement himself. He has just handed

over the charge of the principal to respondent no.7 assuming

that the Vice Chancellor has accepted the VRS application.

Since the Vice Chancellor had no power to appoint or remove or

to accept the VRS application of the petitioner, it cannot be said

that the petitioner's VRS application dated 12.11.2021 was

accepted on the same day. It has of-course been accepted on the

day when the meeting was held i.e. on 30.11.2021 and approved

on 21.12.2021. Before the date of acceptance he had already

moved an application for withdrawal of VRS application, and Patna High Court CWJC No.38 of 2022 dt.11-01-2023

therefore, in terms of the judgments (supra) his VRS application

could not have been accepted and approved. The action of the

respondents, is therefore, bad in law and deserves to be set

aside.

29. However, question arises whether the relief

can be granted to the petitioner of reinstatement and continuity.

By operation of law, a benefit cannot be extended to a person

who may not be entitled to the same. Admittedly the petitioner

had attained the superannuation age much prior to November,

2021 and he was working as principal although he had crossed

62 years of age. As per UGC regulations, following provision

exists for superannuation and reemployment of teachers:-

16.0.0 superannuation and re-employment of teachers

16.1.0. Teachers will retire at the age of 62. However, it is open to a University or a college to re-employ a superannuated teacher according to the existing guidelines framed by the UGC up to the age of 65 years.

16.2.0 Age of retirement of Registrars, Librarians, Physical Education personnel, Controllers of Examinations, Finance Officers and such other University employees who are being treated at par with the teachers and whose age of superannuation was 60 years, would be 62 years. No re-employment facility is recommended for the Registrars, Patna High Court CWJC No.38 of 2022 dt.11-01-2023

Librarians and Directors of Physical Education.

17.0.0 Superannuation Benefits :

17.1.0 The benefit in service, up to a maximum 3 years, should be provided for the teachers who have acquired Ph.D. degree at the time of entry, so that, almost all teachers get full retirement benefits which are available after 33 years of service, subject to the overall age of superannuation.

17.2.0 other conditions with respect to Superannuation Benefits may be given as per Central/State Government Rules.

30. As there is no reemployment granted to the

petitioner nor he possess Ph.D. degree, he cannot be allowed to

continue after 62 years of age. At best, he has to continue up to

the date when he submitted his VRS application. He therefore,

has to be treated to have retired as on the date and he would be

entitled to the salary up to the date he has worked.

31. Keeping in view Balbir Singh Negi (supra)

therefore, even though this court concludes that the VRS

application could not have been accepted by the respondents as

the same stood already withdrawn, the petitioner will have to be

treated as retired from the day he was relived and charge was

handed over to the respondent no.7 since he had already attained

the age of 62 years and would be treated to have superannuated.

Patna High Court CWJC No.38 of 2022 dt.11-01-2023

32. In view of above discussions, the petitioner is

not entitled to any relief as prayed for.

33. The writ petition is disposed of with direction

to the respondent to release the retiral benefit of the petitioner, if

any. No cost.

(Sanjeev Prakash Sharma, J) amit/-

AFR/NAFR                AFR
CAV DATE                22.12.2022
Uploading Date
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