V.Radhika vs The State Of Telangana,
2023 Latest Caselaw 3160 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                  WRIT PETITION NO.23810 OF 2023


                               ORDER

In this Writ Petition, the petitioner is seeking a Writ of Mandamus

declaring the action of the 2nd respondent in not accepting and approving

the application of the petitioner dt.01.07.2023 for voluntary retirement

with effect from 31.07.2023 in terms of the Second Proviso to Rule

43(1) of the Telangana Revised Pension Rules, 1980 as well as the

impugned rejection order Rc.No.2317/2023-E1 dt.12.09.2023 issued by

the 2nd respondent, as illegal, without jurisdiction and violative of

Articles 14, 16 and 21 of the Constitution of India and to set aside the

same and consequently to direct the respondents to accept and approve

the voluntary retirement application of the petitioner dt.01.07.2023 and

to declare the petitioner as retired with effect from 31.07.2023, i.e., the

date mentioned in the application for voluntary retirement with all

consequential benefits and to pass such other order or orders in the

interest of justice.

W.P.No.23810 of 2023

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioner joined the service of Government of Andhra Pradesh

in the year 1995 and she is presently working as Assistant Director of

Handloom and Textiles Department, Hanamkonda. The petitioner has

applied for voluntary retirement on 01.07.2023 requesting to treat her

retirement with effect from 31.07.2023. The respondents have received

the said application on 14.07.2023. The petitioner has obtained the 'no

due certificate' on 19.07.2023 and also a certificate on 25.07.2023 to the

effect that there are no disciplinary cases against her. The 2nd

respondent, vide letter dt.14.08.2023, has also recommended the case of

the petitioner for voluntary retirement from Government service. Since

the petitioner intended to contest the elections and no decision was taken

by the 1st respondent on her voluntary retirement application, the

petitioner has approached this Court and filed the present Writ Petition.

3. Vide order dt.05.09.2023, this Court had directed the 2nd

respondent to consider the application of the petitioner and take a

decision thereon and communicate the same to the petitioner within a

period of one week from the date of the order. Consequent thereto, the

respondents have passed the impugned order dt.12.09.2023 rejecting the W.P.No.23810 of 2023

request of the petitioner for voluntary retirement on the ground that her

services are required for weavers' community in the State. Challenging

the same, an amendment petition in I.A.No.2 of 2023 has been filed

which has been allowed and therefore, the letter dt.12.09.2023 also is

impugned in this Writ Petition.

4. Learned counsel for the petitioner, while reiterating the

submissions made in the writ affidavit, has submitted that when the

application for voluntary retirement is made under Rule 43 of the

Telangana Revised Pension Rules, 1980, the respondents ought to have

taken into consideration only whether there were any dues from the

petitioner or whether there were any disciplinary proceedings pending

against the petitioner. After issuing 'no objection certificate' and also

'no disciplinary cases certificate' in favour of the petitioner, the

respondents should have undertaken the task of accepting the

application and could not have rejected the same in public interest or in

weavers' interest as stated in the impugned order.

5. Learned Government Pleader, on the other hand, relied upon the

averments made in the counter affidavit and submitted that under Rule

43 and Sub-Rule (4) thereof, the Government may accept or reject the W.P.No.23810 of 2023

application for voluntary retirement within the notice period, i.e., 3

months in this case which is yet to expire. It is submitted that it is only

as per the directions of this Court that the application of the petitioner

has been considered and thereafter, in public interest, it has been

rejected. He placed reliance upon the judgment of the Hon'ble Supreme

Court in the case of State of Uttar Pradesh and others Vs. Achal

Singh1 to submit that the Government can reject the application of the

employee seeking voluntary retirement if there is public interest

involved in the matter.

6. The learned counsel for the petitioner, however, submitted that

the said decision is not strictly ipso facto applicable to the present case

as the facts in the said case are distinguishable. He submitted that in the

case of State of Uttar Pradesh and others Vs. Achal Singh (1 supra),

the rules provided for rejection of voluntary retirement application in

public interest, whereas in the Telangana Revised Pension Rules, 1980,

there is no such provision. He further submitted that in the said case, the

Hon'ble Supreme Court was considering the case of the doctors who

wanted to resign en bloc and it was in such circumstances, the Apex

(2018) 7 SCC 578 W.P.No.23810 of 2023

Court has held that the health of the public was also an issue to be

considered before accepting or rejecting the application for voluntary

retirement.

7. Having regard to the rival contentions and the material on record,

this Court finds that Rule 43 of the Telangana Revised Pension Rules,

1980 deals with voluntary retirement of Government Servants. For the

sake of convenience and ready reference, the same is reproduced

hereunder:

"43. Retirement on completion of 20 years of qualifying service :--(1) A Government servant shall have the option to retire from service voluntarily after he has put in not less than twenty years of qualifying service:

Provided that he gives a notice in writing of his intention to retire voluntarily of at least three months to the authority which has power to make a substantive appointment to the post from which he retires:

Provided further that, a notice of the less than three months may also be accepted by the competent authority.

Provided also that, not withstanding anything in Rule 21, extraordinary leave availed on any ground other than for prosecuting higher studies within the State/outside the State/country without receiving any payment except stipends during the period of such leave from any source, but including on medical certificate, shall not be W.P.No.23810 of 2023

reckoned as qualifying service for purposes of arriving at the qualifying service of twenty years referred to in this rule.

Note :--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.

(2) A Government servant retiring under sub-rule (1) shall be entitled to a retiring pension :

Provided that such retiring pension shall be subject to the provisions of the Rules 6, 8 and 9.

(3) Where a Government servant opts to retire under sub-rule (1) while on leave not due, retirement in such cases shall take effect from the date when the leave not due commenced and the employee shall refund the leave salary paid in respect of such leave not due availed of by the employee.

(4) A Government servant opting for retirement under sub-rule (1) shall not retire unless the notice given by him as per proviso to sub-rule (1) is accepted by the competent authority :

Provided that the competent authority shall issue an order before the expiry of the notice period accepted or rejection of the notice.

(5) Government servants opting for retirement under sub-rule (1) shall be entitled to addition of service for purpose of pension, a W.P.No.23810 of 2023

service equal to the difference between the qualifying service actually put in by him and the service he would have put in on the date of superannuation had he continued in service or the difference between such qualifying service and thirty three years, whichever is less, subject to the condition that such addition shall be limited to the maximum of five years :

Provided further that such Government servant shall not be eligible for weightage under Rule 29 of these rules.

(6) The option under sub-rule (1) shall not be admissible to a Government servant on deputation to autonomous bodies/ corporations/companies/public sector undertakings or institutions wholly or substantially owned by Government who get absorbed in such undertakings/autonomous bodies or institutions, as the case may be.

(7) A Government servant retiring voluntarily under sub-rule (1) of this rule shall be subject to Rule 10 of these rules.

Note :--Orders permitting/requiring a Government servant to retire after completing twenty years qualifying service should, as a rule, not be issued until the fact that the officer has indeed completed qualifying service for twenty years has been verified in consultation with Pay and Accounts Officer, Hyderabad/Head of Department/Head of Office, as the case may be, who maintains Service Particulars/Book of the Government servant, concerned."

8. From a literal reading of the above Rule, it is clear that once the

Government Servant puts in not less than 20 years of qualifying service,

he has the option of retiring from service voluntarily and the only other W.P.No.23810 of 2023

requirement is that he has to give notice in writing of his intention to

retire voluntarily of at least three months to the authority which has the

power to make a substantive appointment to the post from which he

retires. Further, a notice of less than three months may also be accepted

by the competent authority. There is no other restriction or requirement

under the said Rule which has to be satisfied. However, it is settled law

that a person shall be deemed to have retired only when his application

has been accepted by the authority within the time allowed under the

Rules. The Government may either accept or reject the application

within the time provided under the Rules, i.e., within 3 months under

Rule 43 of the Telangana Revised Pension Rules, 1980. Even though the

Government has power to either accept or reject the application, it can

do so only under the circumstances mentioned in the Rules.

9. The learned counsel for the petitioner has drawn the attention of

this Court to the judgment of this Court in the case of The State of

Andhra Pradesh rep. by its Secretary, Infrastructure and

Investment Department, Hyderabad and another Vs. The Andhra

Pradesh Administrative Tribunal at Hyderabad rep. by its W.P.No.23810 of 2023

Registrar and another 2, wherein a Division Bench of this Court has

analysed Rule 43 of the Revised Pension Rules, 1980 and has held that

the said Rule confers discretion on the competent authority to reject the

request for voluntary retirement, but that the Rule must be read in

conjunction with the scheme and not in derogation thereof. It was

observed that if it were the intention of the State Government which

framed the Pension Rules that they must override voluntary retirement

scheme, there would have been a provision, such as a non obstante

clause and in the absence of incorporation of such a provision, no

discretion other than the one which is vested in the competent authority

under sub-clause (vii) of Clause-3 could be read into the Rules. The

Court was considering whether there is any conflict between the Pension

Rules and the Voluntary Retirement Scheme and it was held that the

competent authority is bound to act within the confines of the voluntary

retirement scheme, framed under G.O.Ms.No.413 dt.29.11.1977.

10. As regards the judgment of the Hon'ble Apex Court in the case of

State of Uttar Pradesh and others Vs. Achal Singh (1 supra), relied

upon by the learned Government Pleader, this Court finds that it was in

(2016) 5 ALD 679 (DB) W.P.No.23810 of 2023

respect of service rules in the State of U.P. and the said rules are not in

pari materia similar to the Rules of the Telangana Revised Pension

Rules, 1980. Further, as rightly pointed out by the learned counsel for

the petitioner, there was a provision in the said Rules itself that the

application for voluntary retirement can be rejected where public

interest is involved. Even if the said cause of public interest is to be

taken into consideration, in the present case, it is seen that the petitioner

has been on leave for almost one and a half years and there is another

officer posted to look after the work of her post. Further, it is also

noteworthy that the Government has not taken any steps to cancel the

leave or require the petitioner to attend to her duties for the last one

year. Therefore, it appears that the respondents have taken the cause of

public interest only to deny the application of the petitioner.

11. In view of these facts, this Court is inclined to set aside the

impugned order dt.12.09.2023 and to direct the respondents to pass

orders accepting the voluntary retirement application of the petitioner

dt.01.07.2023 with effect from the date which is mentioned in the

application, i.e., 31.07.2023 with all consequential benefits. The W.P.No.23810 of 2023

respondents are directed to pass orders within a period of one week from

the date of receipt of a copy of this order.

12. The Writ Petition is accordingly allowed. No order as to costs.

13. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 13.10.2023

Note: Issue C.C. by 16.10.2023 B/o Svv