2. Heard Mr. S. Jagadish, learned counsel for the petitioner;
Mr. M. Suman, learned Government Pleader for Services-II appearing
on behalf of respondent Nos.1 and 3, and Mr. A. Raghuram, learned
Assistant Government Pleader for the State of A.P. appearing on behalf
3. The petitioner herein was appointed as a Women Welfare
24.09.1979. In due course of time, she was promoted to the post of
Child Development Project Officer / Asst. Project Officer in the year
2001. Meanwhile, the health condition of the petitioner got
condition she had to avail medical leave at regular intervals. Since it
moved an application before the controlling authority seeking
permission to retire from service voluntarily w.e.f. 31.08.2008. Since
she had applied for voluntary retirement w.e.f. 31.08.2008, she did
4. Undoubtedly, when the petitioner had moved the application for
State of A.P. The said District still falls within the territories of the
present State of A.P. The authority concerned did not take any steps
she had sought for. The petitioner had been repeatedly corresponding
5. Meanwhile, on papers, upon bifurcation of the two States in
accordance with the A.P. Reorganization Act, 2014 the petitioner was
reflected to be allocated to the State of Telangana. Since on papers,
State of A.P. took a stand that as she is no longer an employee of the
the State of A.P. so far as the claim of the petitioner for pension and
6. It is this action on the part of the respondent-authorities which
7. Some of the admitted factual matrix of the present case, which
b) The petitioner was promoted as Supervisor in the year 1985 and
further promoted to the post of Child Development Project
Officer/ Asst. Project Officer on 13.07.2001;
c) The petitioner on health grounds moved an application for
voluntary retirement on 05.05.2008 and prayed to relieve her
from service w.e.f. 31.08.2008;
d) When the petitioner had submitted her voluntary retirement
application, she was posted at Kurnool District which is an area
still falling within the territories of the residuary State of A.P.;
and
e) Lastly, the petitioner had tendered her application seeking
voluntary retirement long before bifurcation of the two States
under the A.P. Reorganization Act, 2014.
8. In the light of the aforesaid admitted factual matrix of the case,
what is to be now considered is the effect of the application for
voluntary retirement tendered by the petitioner?
9. The application for voluntary retirement is one which was
tendered by the petitioner under the then prevailing A.P. State Revised
Pension Rules, 1980 (for convenience, hereinafter referred to as
'Pension Rules') and the Rule which applies for voluntary retirement as
per the said Pension Rules is Rule 43. The relevant portion of Rule 43
for ready reference is being reproduced hereunder, viz.,
"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.
xxxxxxx xx
(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 8 and 9.
(3) Where a Government servant opts to retire under sub-rule
(1)while on leave not due, the 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 accepting or rejecting the
notice;"
10. In the instant case, the relevant provision which would apply is
Sub-Rule (4) and the proviso to the said Sub-Rule. A plain reading of
Sub-Rule (4) would give an indication that upon an application being
made, the competent authority has to accept the same, and unless it is
accepted, the employee cannot be considered to have retired.
However, the law makers have also added a proviso clause to the said
provision, which mandates the competent authority to take a decision
on the said application filed by the employee either accepting or
rejecting the same. This proviso to Sub-Rule makes it mandatory for
the competent authority to take a decision on the application for
voluntary retirement.
11. Now the second question that comes up for consideration is, in
the event if the competent authority does not take a decision and the
notice period also expires, whether the employee can still be compelled
to discharge the duties? In other words, whether the employee would
still be on the rolls of the employer or whether the employee will be
deemed to have voluntarily retired from service in accordance with the
application which she had made?
12. In the opinion of this Court, once when the rule makers have
added a mandatory provision by way of a proviso, there can be no
other inference drawn other than the fact that, in the event, if the
competent authority having not taken a decision on the application for
voluntary retirement either accepting or rejecting it, it will amount to
deemed acceptance and the employee will be deemed to have retired
from service voluntarily with effect from the notified date in the
application.
13. In terms of the admitted factual matrix as is narrated in the
preceding paragraphs, the petitioner applied for voluntary retirement
on 05.05.2008 with a three months' notice period of her standing to
retire from service voluntarily w.e.f. 31.08.2008. Thereafter, she has
not reported for duty. During this period, she was posted in Kurnool
District which now falls within the territories of the State of A.P. The
competent authority had not taken a decision on her application either
accepting or rejecting it and, therefore, as a consequence of the
inaction on the part of the competent authority to take a decision on
the application for voluntary retirement submitted by the petitioner on
05.05.2008, for all practical purposes as per the proviso clause to Sub-
Rule (4) of Rule 43 of the Pension Rules it has to be considered that
she is deemed to have retired from service w.e.f. 31.08.2008.
14. The Counter-Affidavit filed by the residuary State of A.P. as also
by the State of Telangana would show conflicting and contradictory
stand being taken by both. The State of A.P. has taken a stand that
since there was no acceptance of the application for voluntary
retirement, the petitioner would continue to remain on the rolls of the
Telangana and she also remained unauthorizedly absent from duty and
in due course of time after the two States were bifurcated, the
petitioner was allocated to the State of Telangana. Since the petitioner
was allocated to the State of Telangana she would no longer be in the
rolls of the State of A.P. and any further liability that would arise has
to be made by the State of Telangana alone.
15. Likewise, the State of Telangana also took a similar stand
contending that though the petitioner having been allocated to the
State of Telangana, she has not reported for duty or joined the duty in
the State of Telangana and unless she assumes the duty and takes
charge, she cannot be accepted to be an employee of the State of
Telangana. According to the State of Telangana, the petitioner was
working in Kurnool District in the State of A.P., and unless she upon
allocation joins in the State of Telangana, cannot be considered to be
an employee of the State of Telangana. Nonetheless, for the reason
there was an unauthorized absence, the State of Telangana did initiate
disciplinary proceedings on the charge of inordinate unauthorized
absence. However, subsequently on the ground that she has not joined
in the State of Telangana, the entire disciplinary proceedings were
dropped. Thus, the State of Telangana also refused or accepted the
liability.
16. In the given factual scenario, what needs to be considered is, as
to which State would have the liability for payment of pension in the
event if the writ petition is to be allowed?
17. In the given factual matrix narrated in the preceding paragraphs,
the relevant period is 05.05.2008 to 31.08.2008. During this period,
the petitioner was working at Kurnool District. The said place now falls
under the State of A.P. The petitioner had tendered her voluntary
resignation on 05.05.2008, but no decision was taken on the said
application which was to become effective w.e.f. 31.08.2008 i.e. three
months' notice period that was granted. In the said admitted facts, in
the event if the application for voluntary retirement is not considered,
it would deemed to have been accepted. Then there can be no doubt
whatsoever of the law and liability for grant of pension and pensionary
benefits falling upon the State of A.P. It is only if this Bench reaches to
the conclusion that non-acceptance of the voluntary retirement would
not have a deeming fiction and the concerned employee would remain
on the rolls of the employer, and thereafter being allocated to the
State of Telangana, would shift the liability from the State of A.P. to
the State of Telangana.
18. Now so far as the legal position of non-acceptance of the
application for voluntary retirement is concerned, we have already
reproduced the statutory provision i.e. Sub-Rule (4) of Rule 43 of the
Pension Rules earlier in this order which mandatorily requires the
competent authority to take a decision on the application, both for
accepting or rejecting the same. The very fact that there is a mandate
in the Rule for taking a decision, either ways it has to be inferred and
presumed that in the event of the competent authority not taking a
decision, it would amount to deemed acceptance of the application.
19. One of the earlier decisions on this subject is the judgment of the
Hon'ble Supreme Court in the case of Dinesh Chandra Sangma vs.
State of Assam and Others 1 wherein in paragraph No.8 it has been
held as under:
"8. As is well known government servants hold office during the
pleasure of the President or the Governor, as the case may be,
under Article 310 of the Constitution. However, the pleasure
doctrine under Article 310 is limited by Article 311(2). It is clear
that the services of a permanent Government servant cannot be
terminated except in accordance with the rules made under
Article 309 subject to Article 311(2) of the Constitution and the
Fundamental Rights. It is also well-settled that even a temporary
government servant or a probationer cannot be dismissed or
removed or reduced in rank except in accordance with Article
311(2). The above doctrine of pleasure is invoked by the
Government in the public interest after a government servant
(1977) 4 Supreme Court Cases 441
attains the age of 50 years or has completed 25 years of service.
This is constitutionally permissible as compulsory termination of
service under Fundamental Rule 56(b) does not amount to
removal or dismissal by way of punishment. While the
Government reserves its right to compulsorily retire a
government servant, even against his wish, there is a
corresponding right of the government servant under
Fundamental Rule 56(c) to voluntarily retire from service by
giving the Government three months' notice in writing. There is
no question of acceptance of the request for voluntary retirement
by the Government when the government servant exercises his
right under Fundamental Right 56(c)."
20. The said analogy was subsequently also reiterated by the Hon'ble
Supreme Court in the case of State of Haryana and Others vs. S.K.
Singhal 2 wherein in paragraph Nos.9 and 13, it has been 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
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
(1999) 4 Supreme Court Cases 293
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.
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 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..."
21. The aforesaid two judgments in very categorical terms confers a
right upon an employee to decide whether the employee wishes to
voluntarily retire from service and if the employee opts to retire
voluntarily, unless there is a specific embargo under certain conditions
when it could be refused, there is no reason why the employee cannot
opt for voluntary retirement. The aforesaid principles laid down is also
found to have been followed by the Hon'ble Supreme Court again in
the case of Union of India & Others vs. Sayed Muzaffar Mir 3
wherein in paragraph Nos.4 and 5 it was held as under:
"4. There are two answers to this submission. The first is that
both the provisions relied upon by the learned counsel would
require, according to us, passing of appropriate order, when the
government servant is under suspension (as was the
respondent), either of withholding permission to retire or
retaining of the incumbent in service. It is an admitted fact that
no such order had been passed in the present case. So, despite
the right given to the appropriate/competent authority in this
regard, the same is of no avail in the present case as the right
had not come to be exercised. We do not know the reason(s)
thereof. May be, for some reason the authority concerned thought
that it would be better to see off the respondent by allowing him
to retire.
5.The second aspect of the matter is that it has been held by a
three-Judge Bench of this Court in Dinesh Chandra Sangma v.
State of Assam, which has dealt with a parimateria provision
finding place in Rule 56(c) of the Fundamental Rules, that where
the government servant seeks premature retirement the same
does not require any acceptance and comes into effect on the
completion of the notice period. This decision was followed by
another three- Judge Bench in B.J. Shelat v. State of Gujarat."
In the said decision, the Hon'ble Supreme Court relied upon its
own decision in the case of B.J. Shelat v. State of Gujarat 4.
1995 Supp (1) Supreme Court Cases 76
(1978) 2 Supreme Court Cases202
22. From the aforesaid judicial precedents in the past, what is culled
out is that upon a Government servant giving notice of voluntary
retirement, the competent authority is expected to take a decision by
either allowing or rejecting the application within the notice period of
three months. In the event of the competent authority not taking a
decision, there can be no other inference or presumption that could be
drawn of the voluntary retirement automatically coming into force from
the period mentioned in the application submitted by the employee.
The right to apply for voluntary retirement conferred under the Pension
Rules upon an employee opting for the same with clear three months'
notice and if the employer / competent authority does not reject the
application within three months, it is deemed acceptance. This in other
words means that the competent authority has to pass a specific order
refusing permission from voluntary retirement, that too before expiry
of the notice period; else the retirement becomes effective from the
date of expiry of the period mentioned in the notice given by the
employee. As a consequence, the employee's relationship with the
employer also automatically comes to an end on the notice period.
23. In the aforesaid judicial precedents and the principles laid down
therein, and considering the same in the teeth of the provisions of
Sub-Rule (4) of Rule 43 of the Pension Rules, this Bench has no
hesitation in reaching to the conclusion that non-acceptance of the
voluntary retirement submitted by the petitioner w.e.f. 05.05.2008
would result in deemed acceptance w.e.f. 31.08.2008. The instant writ
petition therefore deserves to be allowed for the said reason.
24. As a consequence, it is ordered that the petitioner shall be
deemed to have voluntarily retired w.e.f. 31.08.2008 and is entitled for
all consequential pension and pensionary benefits which she would
have been otherwise entitled as on 31.08.2008. However, in the event
of the petitioner going on leave after exhausting all the leaves that
were there to her credit, the pensionary benefits and the effective date
of voluntary retirement would be in accordance with the provisions of
Sub-Rule (4) of Rule 43 of the Pension Rules, which prescribes the
situation where the employee retires while on leave. It is further
ordered that the petitioner shall be entitled for all consequential
benefits including arrears of pension from the date of voluntary
retirement becoming effective. The liability, as has been discussed
earlier falls only upon the State of A.P., as on this date the new State
had not been carved out and that the petitioner was working in the
territories which even as on this date is within the State of A.P. i.e.
Kurnool District. Let the entire arrears of pension be calculated and
processed within an outer limit of four (04) months and further
pension also be regularly paid.
25. We are conscious of the fact that the petitioner has been denied
the benefits of retirement unnecessarily for a long time because of the
developments that took place in between. We are not imposing
interest on the arrears of pension. Nonetheless, if the State of A.P.
fails to clear the arrears of pension and other benefits within a period
of four (04) months as directed, the entire pensionary benefits would
carry interest at the rate of 7%.
26. Accordingly, the writ petition stands allowed in the afore given
terms.
27. As a sequel, miscellaneous petitions pending if any, shall stand
closed. However, there shall be no order as to costs.
_____________
P.SAM KOSHY, J
_________________________
NARSING RAO NANDIKONDA, J
Date: 24.03.2025
Note: LR Copy to be marked.
(B/o)GSD
