ORDER
M. Ramachandran, J. (Vice Chairman)
1. The applicant has impugned the Memorandum dated 17.09.2007 issued to him by the Deputy Secretary (Admn.), Land and Building Department of the Government of NCT of Delhi, which could be extracted as hereinbelow:
Sub: Regarding notice for Voluntary Retirement under Rule-48.
Reference his notice for voluntary retirement under Rule 48 dated 09/07/2007, Sh. Dharam Vir Singh, Gr.II (DASS)/Head Clerk is informed that the notice has been considered and not accepted by the Competent Authority.
The legality of such communication is challenged and the applicant has prayed that the same be set aside. Further prayer is for directing the respondents to accept the notice of the applicant for voluntary retirement and for directing payment of retirement dues that might be due to him.
2. During the course of hearing, Mr. Khurana, Sr. Counsel, has submitted that the applicant also prays that there should be a declaration that applicant stands retired from service, effective from 09.10.2007, obviously noticing that acceptance of notice for voluntary retirement, as prayed for, may not be the correct way of shaping the reliefs as per the statutory rules.
3. The factual details are not at all in dispute. It is admitted that applicant had commenced service as LDC on 14.6.1976, and he had joined the NCT of Delhi in the Land and Building Department on 28.12.1979. He had given Annexure A-2 notice for voluntary retirement under Rule 48 of the CCS (Pension) Rules, 1972, on 09.07.2007. The question, in the light of the above and taking note of the rules as might be applicable, is as to whether Annexure A-1, which is issued in response to Annexure A-2, could be considered as sufficient or valid for restricting the rights of the applicant to any extent, as otherwise available to him.
4. A reply has been filed by the respondents. The submission is that there is a charge sheet as of now pending as against the applicant consequent to Memo dated 18.10.2006. Disciplinary proceedings are contemplated. Therefore, the request for voluntary retirement required to be and has been rightly turned down vide Annexure A-1 order. The counsel contends that it is open to the Government to `postpone the superannuation’ so as to facilitate continuation of the pending disciplinary proceedings and the right of a Government servant is restricted to that extent, as could be gatherable from general instructions, which are necessary to be followed in such matters.
5. In the above background, Mr. Khurana had invited our attention to the relevant rules so that it may be possible to examine whether there is substance in the objections raised by the respondents. His principal submission is that, as provided in Chapter VII of the Pension Rules, there is essential difference between the prescription and procedure to be noticed and to be followed when an application for voluntary retirement is made under Rules 48 and 48-A of the Pension Rules. Although Annexure A-1 refers to the application as made under Rule 48, without bonafide, and application of mind, the procedure to be followed under Rule 48-A are pressed into service. He points out that under Rule 48, at any time after a Government servant completes thirty years’ qualifying service, he may retire from service. In such cases of retirement, the Government servant shall be entitled to retiring pension. The only preconditions prescribed are that he should give notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire. A proviso restricts, of course, such rights, the counsel submits, in a circumstance where the Government servant is under suspension. In this contingency, the Appointing Authority will have the right to take a decision to withhold permission for going on retirement under the rule. According to him, this is the only restriction, on the right of a Government employee.
6. As far as the present case is concerned since applicant is not a restricted person coming under the second proviso of the rules where there is a separate procedure prescribed. Counsel also invites our attention to sub-rule 1-A (a), which gives certain amount of relaxation in the prescription of three months notice even, namely, that a Government servant is enabled to make a request in writing to the Appointing Authority to accept notice of less than three months giving reasons therefor. The Appointing Authority under sub-rule 1-A (b) is given discretion to consider such request for the curtailment of the period of notice and only on his satisfaction, and in public interest, relaxation could be given on conditions. As far as this case is concerned, the cumulative position, according to the counsel, is that when three months are completed from the date of written application submitted, the applicant is to be deemed as having retired from service. Annexure A-1 order issued is, therefore, without jurisdiction in usurpation of power and perhaps on a misconception of the power an authority can exercise under the rules.
7. It is further submitted that the impugned order itself is cryptic and normally it would not have been permissible for the respondents to supplement the order by attempting to give justifiable reasons. But even such reasons given, according to the counsel, are totally unacceptable and may lead to a presumption that there is hardly any application of mind. Mr. Khurana invites our attention to Rule 48-A as well, which is the provision governing retirement on completion of 20 years qualifying service. Evidently according to him, the procedure and instructions as relevant to the said rule are attempted to be interpolated. A Government servant by this Rule is given option to give notice of not less than three months giving his intention to retire from service. However, such right is not absolute, applicant points out, because of the presence of Rule 48-A (2), wherein there is a specific stipulation that such notice given shall require acceptance by the Appointing Authority. This is the essential difference. Of course, the proviso to rule provides that when request is not refused, the retirement would become effective from the date of expiry of the said period. According to the counsel, the same principle that the retirement becomes operative and effective from the expiry of three months is to be understood as emanating from the wording of Rule 48. The expression is that he may retire from service, on giving notice in writing at least three months before the date of which he wishes to retire. He submits that Rule 48 is silent about presence or absence of any disciplinary proceedings, as pending, and the restrictions could be enforced, only in the case of a suspended officer, in the discretion of the appointing authority.
8. The respondents have, of course, adverted to the guidelines prescribed by the Decision of the Government of India appended to Rule 48-A. It is, therefore, submitted that Annexure A-1 cannot be faulted, as it is very much in public interest and an erring officer should not be permitted to go scot-free. Even the proceedings have been initiated at the intervention of the High Court, when serious irregularities in allotment of plots were unearthed.
9. But in the face of the specific Rule, we have to examine the rival contentions. The counsel for the applicant may be right when he submits that guidelines referred to are intended to deal with a contingency where Government has discretion to accept or reject the application. When disciplinary proceedings are pending or contemplated, of course, the Government is given power to reject the application by Rule 48-A. We are satisfied that such a discretion and procedure can have relevance only in a case where Government is expressly given the right and discretion to accept the request for voluntary retirement. So long as such a prescription is not there with reference to Rule 48 request, the stand of the respondents obviously is without legal basis. In the above background, perhaps we may not be required to advert to Fundamental Rules 56, although our attention had been drawn to the above as well. We also notice that the two decisions cited by the counsel, namely, Dinesh Chandra Sangma v. State of Assam and Ors. and B.J. Shelat v. State of Gujarat and Ors. fully support the contentions that have been raised by him.
10. In the reply affidavit filed, counsel for the respondents had adverted to observations made by the Supreme Court in Union of India and Ors. v. A.N. Saxena and especially Paragraph 11 thereof, and counsel reiterates the contentions. But such observations could not have clothed the respondents for adopting a stand that they had the inherent right to reject an application filed under Rule 48 of the Pension Rules in public interest notwithstanding that the rules did not authorize adoption of such a procedure. The application of the applicant was valid when tested with Rule 48, and the legal position, according to us, will be that he had to be deemed as retired by 09.10.2007. Annexure A-1 order, therefore, would not have any impact disabling him from going on voluntary retirement. It has been issued without authority of law and we have no hesitation in setting aside the aforesaid order.
11. Consequently, the O.A. stands allowed. It is declared that the applicant is no more in Government service, having retired from service, effective from 09.10.2007. We direct the Government to extend to him retiral benefits as admissible under the Rules.
12. However, we make it clear that such declaration will not preclude the respondents from pursuing the disciplinary action that is in progress and at their discretion as admissible. We make no order as to costs.