IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1391 of 2010()
1. SUMANGALA.K., H.S.A.(HINDI),
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE HEAD MASTER/MISTRESS,
5. ACCOUNT GENERAL OF KERALA (A & E),
6. STATE PROJECT DIRECTOR (SSA) KERALA,
7. DISTRICT PROJECT OFFICER,
For Petitioner :SRI.M.K.PRADEEPKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :04/11/2010
O R D E R
"CR"
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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W.A.No.1391 of 2010.
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Dated this the 4th November, 2010.
J U D G M E N T
Basheer, J.
Appellant who is a member of the Kerala General
Education Service was sent on deputation in July 2004, as a
Block Resource Centre Trainer to impart training to school
teachers at Alappuzha. The above training programme was
being conducted by the Sarva Shiksha Abhiyan (SSA), a
project sponsored by the Central Government. At the time
of deputation, appellant was working as High School
Assistant (Hindi) in Government High School, Paravoor in
Alappuzha district.
2. While continuing on deputation appellant
submitted a request to her appointing authority, the Deputy
Director of Education, Alappuzha to allow her to retire from
service voluntarily, with effect from March 31, 2008. The
said request was made by the appellant on February 8,
W.A.No.1391 of 2010.
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2008 as could be seen from Ext.P2. But, on April 2, 2008
appellant submitted Ext.P5 application before the Deputy
Director requesting him to drop all further proceedings on
her application for voluntary retirement and allow her to
continue in service.
3. It is on record that appellant continued as Block
Resource Centre Trainer in Sarva Shiksha Abhiyan even
thereafter. In the meanwhile in September, 2008 and June,
2009 the Deputy Director is seen to have issued notice to
the Headmistress of the Government High School, the
parent institution where the appellant had been working as
High School Assistant prior to her deputation, to take steps
to recover the salary and allowance paid to the appellant
after March 31, 2008, the date on which the appellant
wished to retire from service.
4. Appellant filed the writ petition before the learned
Single Judge under Article 226 of the Constitution of India
at that stage with a prayer to declare that her continuance
in service beyond March, 31, 2008 was lawful and proper
W.A.No.1391 of 2010.
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and that Ext.P2 application submitted by her seeking
voluntary retirement had become infructuous.
5. The learned Single Judge did not allow the
primary prayer made in the writ petition. However, the
respondents were directed not to recover any amount
received by her by way of salary and allowance after March
31, 2008 till January 31, 2010. It was further directed that
the respondents shall disburse all her pensionary benefits
reckoning her date of retirement as March 31, 2008. The
above judgment is under challenge in this appeal to the
extent the learned Single Judge has refused to grant the
entire reliefs prayed.
6. The questions that arise for consideration in this
case may be formulated thus:
Can a request by a Government servant for
voluntary retirement be treated as ab initio
invalid and inoperative for want of requisite
minimum notice period as contemplated in Rule
56(1) of Part III Kerala Service Rules?
W.A.No.1391 of 2010.
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Is not the Government justified in rejecting the
plea of an employee to allow him to withdraw the
request for voluntary retirement if such plea is
made after the intended date of retirement?
7. As has been noticed already the appellant
submitted Ext.P2 seeking voluntary retirement with effect
from March 31, 2008. Admittedly, appellant submitted
Ext.P5 application seeking to withdraw her request for
voluntary retirement only on April 2, 2008 viz. after the due
date of intended retirement.
8. Rule 56 in Part III Kerala Service Rules deals with
retiring pension. Relevant clauses of the above rule are
extracted hereunder:
“56. A retiring pension is granted to an
employee who retires voluntarily after 20 years of
qualifying service subject to the following
conditions:-(i) He shall give notice in writing to the
appointing authority or the pension
sanctioning authority of his intention to
retire at least three months before the date
on which he wishes to retire:
W.A.No.1391 of 2010.
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Provided that the employee may make a
request in writing to the appointing authority to
accept notice of less than three months giving
reasons therefor. On receipt of such request the
appointing authority may consider it for the
curtailment of the period of notice of three months
on merits and if it is satisfied that the curtailment of
the period of notice will not cause any
administrative inconvenience, the appointing
authority may relax the requirement of notice of
three months on the condition that the employee
shall not apply for commutation of a part of his
pension before the expiry of the period of notice of
three months.
(emphasis supplied)
xxx xxx xxx
xxx xxx xxx
(iv) Voluntary retirement of an employee shall
become effective on the grant of
permission to retire by the authority
competent to make appointment to the
post:
Provided that where the authority competent to
make appointment to the post does not refuse to
grant permission for retirement before the date on
which the employee wishes to retire specified in the
notice under clause (i), the retirement shall become
effective from the date specified in the notice.”
A perusal of clause (i) extracted above will show that the
employee has to give notice in writing indicating his
intention to retire at least three months before the date on
W.A.No.1391 of 2010.
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which he wishes to retire. The proviso under clause (i)
postulates that on receipt of such request from an employee
the authority may consider it even if the notice is of less
than three months, if the authority is satisfied that the
curtailment of the period of notice will not cause any
administrative inconvenience. The appointing authority
may relax the requirement of notice of three months on the
condition that the employee shall not apply for commutation
of a part of his pension before the expiry of the period of
notice of three months.
9. The proviso to clause (iv) makes it clear that the
retirement of the employee shall become effective from the
date specified in his notice if the competent authority does
not refuse to grant permission for retirement before the
date on which he wishes to retire.
10. In the case on hand the appellant had not given
three months’ notice as contemplated under clause (i). It is
contended by the appellant that her retirement would not
have become effective with effect from March 31, 2008 for
W.A.No.1391 of 2010.
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the above defect in the notice. Therefore, even if the
subsequent request made by the appellant was beyond the
proposed date of retirement, it was of no consequence, it is
contended.
11. But, the case of the respondents is that the
application received from the appellant was forwarded by
the appointing authority to the Accountant General with
Service Book for verification of admissibility of service after
treating it as a valid application albeit it was defective, in as
much as three months’ notice as contemplated under clause
(i) was not given. It is further contended that since the
request for grant of permission to retire was not refused
before the date of retirement, the appellant ought to have
retired from service in the afternoon of March 31, 2008 as
provided under clause (iv) of Rule 56.
12. However, it is contended by learned counsel for
the appellant that forwarding of the Service Book is only for
the purpose of verification of the service records being
maintained by the Accountant General’s office with
W.A.No.1391 of 2010.
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reference to the number of years of service as provided
under Ruling No.1 in Rule 56. There was no other
significance to this routine procedural formality. Therefore,
according to the learned counsel, the administrative or
procedural formality performed by the appointing authority
will not cure the inherent defect in the application.
13. We are not impressed with the above contention
for two reasons. Firstly, as is explicit from clause (iv)
referred to above, the employee who seeks voluntary
retirement is bound to retire on the date specified in the
notice, if the competent authority does not refuse to grant
permission for retirement. In this context Ruling No.2 in
Rule 56 is relevant, which reads thus:
“Ruling No.2: An employee who has
elected to retire under this rule and has given
necessary intimation to that effect to the
competent authority, shall be precluded from
withdrawing his election subsequently except
with the sanction of the Government under
the recommendation of the authority
competent to fill the appointment, provided his
request for withdrawal is made within the
intended date of his retirement.”
W.A.No.1391 of 2010.
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The above ruling makes it abundantly clear that once an
employee makes a request to allow him to retire voluntarily,
he shall be precluded from withdrawing his election. But of
course, he would be entitled to do so provided the request
for withdrawal is made “within the intended date of
retirement” and that too only if the Government accords
sanction on a recommendation to be made by the “authority
competent to fill the appointment”. Therefore, since the
competent authority had not refused to grant permission to
the appellant to retire voluntarily, and also since Ext.P5
application seeking withdrawal of the request for voluntary
retirement was after the date of retirement specified in
Ext.P5, we have no hesitation to hold that the voluntary
retirement of the appellant had become effective from
March 31, 2008 itself. More importantly the appellant has
no case that the Government had accorded sanction to her
to “withdraw her election” as provided in Ruling No.2
extracted above. In that view of the matter also the
appellant would not have been entitled to continue in
W.A.No.1391 of 2010.
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service beyond the “intended date”, viz. March 31, 2008.
14. But, the crucial question is whether the
application seeking voluntary retirement “had become
infructuous” (as appellant would put it) since the appellant
had not given at least three months’ notice as stipulated in
Rule 56(i) of Part III Kerala Service Rules. According to the
appellant, ExtP2 application was inconsequential and
invalid and therefore the authorities were not bound to act
upon it. It is further contended that even assuming any
action had been taken pursuant to the above application, all
such actions would be inconsequential and unenforceable.
15. But, it has already been noticed that the proviso
to sub rule (i) of Rule 56 KSR confers discretionary power
on the appointing authority to accept the request for
voluntary retirement with less than three months’ notice.
However, the proviso makes it clear that the employee must
give reasons for the shorter notice period. The latter part of
the proviso elucidates further that the authority may relax
the requirement of notice of three months’ on condition that
W.A.No.1391 of 2010.
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the employee shall not apply for commutation of a part of
pension before the expiry of the period of notice of three
months’.
16. A conjoint reading of sub rule (i) and (iv) of Rule
56 with the provisos and Ruling No.2 thereunder, will
unambiguously show that reasonable flexibility or balance
has been given by the rule making authority to ensure that
an employee is not put to any kind of heartburn or prejudice
even if a decision is taken by him to retire voluntarily on an
impulse. There is enough “play in the joints”, if we may say
so.
17. It is true that appellant had not given three
months’ notice. But, still the appointing authority had
accepted the request and forwarded the same to the higher
authorities for further follow up action. Admittedly,
appellant had second thought only after the due date of
“intended retirement” was over. Having regard to the
entire aspects of the matter, we have no hesitation to hold
that the authorities were justified in acting on Ext.P2
W.A.No.1391 of 2010.
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application for voluntary retirement.
18. But, the materials available on record would show
that there was some unfortunate lapse or communication
gap between the parent department of the appellant and
the Sarva Shiksha Abhiyan in which the appellant had been
working since 2004 on deputation basis. As rightly pointed
out by learned counsel for the appellant, the respondent
could not have pretended ignorance as regards the
continuance of the appellant in service. The learned
counsel has invited our attention to Ext.P12 dated
September 18, 2009 by which the period of deputation of
the appellant was extended by the government till March
31, 2010. Similarly Annexure-A3 will show that the
appellant had been granted a refundable advance of
Rs.83,900/- from her General Provident Fund account. This
order was issued by the District Educational Officer,
Alappuzha on March 17, 2010 with copy to the Accountant
General, Director of Public Instruction, etc. Further,
appellant had been making contribution to General
W.A.No.1391 of 2010.
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Provident Fund account every month. The annual account
statement for the years 2008 to 2010 will show that
subscription amount was being credited every month from
the salary of the appellant during the period referred to
above.
19. However, learned Government Pleader points out
that the Deputy Director had issued Ext.P7 notice as early
as on September 8, 2008 to the Headmistress of the school
in which the appellant had been working calling for her
explanation as to why appellant was being allowed to
continue as Block Resource Centre Trainer after March 31,
2008. Ext.P7 further shows that a copy of this
communication was sent to the appellant also. Similarly
Ext.P11 notice was also issued by the Deputy Director on
June 20, 2009 calling for the explanation of the
Headmistress as to why the appellant was being allowed to
continue in service after March 31, 2008. The attempt of
the learned Government Pleader is apparently to highlight
the fact that the Deputy Director had taken some action in
W.A.No.1391 of 2010.
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the matter.
20. But, it is evident from the records that apart from
issuing these notices the Deputy Director, Headmistress or
any other authority had not taken any steps to terminate the
deputation of the appellant in the Sarva Shiksha Abhiyan.
The appellant continued as Block Resource Centre Trainer
till March 31, 2010 as could be seen from Ext.P17, though
she was paid salary and allowance only till January 31,
2010. Obviously, salary and allowance during the period of
deputation were paid from the funds made available by the
Central Government under the Sarva Shiksha Abhiyan
scheme. Any how, the fact remains that the appellant was
paid her dues for the services rendered by her in Sarva
Shiksha Abhiyan even though she could not have continued
in service as High School Assistant beyond March 31, 2008.
It is in the above facts and circumstances the learned Single
Judge directed the respondents not to recover the salary
and allowance received by the appellant after March 31,
2008 till January 31, 2010. In view of the fact that the
W.A.No.1391 of 2010.
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above direction issued by the learned Single Judge has not
been challenged by the State and also keeping in view the
fact that the appellant’s service had been utilised by the
Sarva Shiksha Abhiyan, we are satisfied that the direction
issued by the learned Single Judge need not be disturbed.
The appeal fails and it is accordingly dismissed.
A.K.BASHEER,
(Judge)
P.Q.BARKATH ALI,
(Judge)
Kvs/-