IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15677 of 2007(N)
1. THE MANAGER, ST.AUGUSTIN'S
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DEPUTY DIRECTOR, EDUCATION,
3. DISTRICT EDUCATION OFFICER,
4. THE HEADMISTRESS,ST.AUGUSTIN'S HIGH
5. SRI.NAVEEN CHRISTOPHER,
6. SMT.BEAULA FATHIMA LOPAS,
For Petitioner :SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
For Respondent :SRI.GOPAKUMAR R.THALIYAL
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :18/08/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.15677/2007-N &
17240/2007-B
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Dated this the 18th day of August, 2009.
JUDGMENT
These writ petitions are at the instance of the Manager of a school and
the newly appointed clerk who is seeking approval of appointment. The
relevant facts for the disposal of the writ petitions are the following:
2. The 6th respondent in W.P.(C) No.15677/2007 was working as a
Clerk in the school. She requested for voluntary retirement from service
with effect from 1.9.2006. The request was duly forwarded by the
Headmistress to the Accountant General. After completing the process and
after getting sanction of the Accountant General, by Ext.P3 sanction was
accorded by the second respondent after accepting the voluntary retirement.
The same came into effect on 1.9.2006. In the said vacancy, the 5th
respondent who is the petitioner in W.P.(C) No.17240/2007 was appointed.
Later on, after several months, the second respondent issued Ext.P5
directing not to proceed with Ext.P3. Ext.P6 is the consequential order
passed by the second respondent withdrawing the sanction for voluntary
retirement. These are under challenge in these writ petitions.
wpc 15677/07 &
17240/07 2
3. The apparent reasons shown in Exts.P5 and P6 are that the
Headmaster reported that the 6th respondent has availed a number of loans
from various concerns and she is also a surety to certain other loanees. She
is an indebted person and her pensionary benefits are not sufficient to
compensate these liabilities.
4. Learned counsel for the petitioners submitted that the second
respondent has no power to recall the order sanctioning voluntary
retirement. The 6th respondent had not withdrawn her application for
voluntary retirement before the sanction was granted. Even if there is a
withdrawal, that can be made only before the acceptance of the voluntary
retirement. Herein, the said question therefore does not arise. It is further
pointed out that merely because the 6th respondent is indebted to private
parties and co-operative societies in respect of certain loans, that cannot be
a ground to recall the sanction for voluntary retirement. It is pointed out
that the second respondent has acted arbitrarily and illegally in passing
such an order. Learned counsel for the 6th respondent and learned Govt.
Pleader were also heard. In the counter affidavit filed by the 6th respondent,
the case pleaded is that she was cheated by the Manager in seeking
voluntary retirement. His son is appointed in her place. She has no case
that the application seeking voluntary retirement was withdrawn at any time.
wpc 15677/07 &
17240/07 3
Her plea can only be an after thought.
5. A reading of Ext.P3 shows that when the application for voluntary
retirement was given by the 6th respondent, the proposal was forwarded to
the Accountant General for verification and the same was approved.
Accordingly, sanction was ordered to effect voluntary retirement from
1.9.2006. This order is dated 26.12.2006. It is pointed out in the writ
petition that the 6th respondent had rendered service beyond 1.9.2006 for a
period of two months till the receipt of the order Ext.P3 and the salary
claimed for the said period was also refunded.
6. Thus, it is a case where the voluntary retirement of the 6th
respondent has become final and had taken effect. Hence, the question of
recalling or cancelling the said order does not arise at the hands of the
second respondent who had sanctioned voluntary retirement. The reasons
stated in Exts.P5 and P6 are that she has several number of loans from
various concerns and is a surety to various transactions. The details have
been shown in Ext.P6. The creditors are certain service co-operative banks
and she has also dues in certain chitty transactions. Significantly, even
though she was given an opportunity for hearing, she did not go back on
the application for voluntary retirement. Thus, the action by the 2nd
respondent is perfectly without jurisdiction. It is mentioned in Ext.P6 itself
wpc 15677/07 &
17240/07 4
that the 6th respondent submitted that all outstanding balance will be
remitted by her from her pensionary benefits which is reiterated in her
counter affidavit also. But the second respondent went on to state that the
pensionary benefits are not sufficient to clear all the dues and therefore the
sanction has to be withdrawn. The said reason is not one germane to the
issue. It is beyond the scope of the scheme for grant of voluntary retirement
also. Once the voluntary retirement has been sanctioned in terms of the
application of the 6th respondent, there was no reason for the second
respondent to recall and cancel the same for a reason like the one pointed
out in Exts.P5 and P6. If she is indebted to other private parties and co-
operative banks, it is their look out to realise the amount from her. It is not
a case where there had been any dues to the Government also. Therefore,
the second respondent was not actually concerned with the main question
whether the pensionary benefits are sufficient to satisfy the debts. Once
voluntary retirement has been accepted and the 6th respondent retired from
service, she could not have been ordered to be reinstated in service based on
a report by the Headmaster. It is clear from Exts.P5 and P6 that the 6th
respondent never wanted withdrawal of the application for voluntary
retirement also. It is well settled by various decisions of this court and that
of the Apex Court that even a withdrawal can be made only before
wpc 15677/07 &
17240/07 5
acceptance of the same. Therefore, the impugned orders Exts.P5 and P6 in
W.P.(C) No.15677/2007 are quashed.
7. Hence, both the writ petitions are allowed. There will be a
direction to the District Educational Officer to consider the approval of
appointment of the petitioner in W.P.(C) No.17240/2007 in terms of the
appointment order. Appropriate orders shall be passed within a period of
six weeks from the date of receipt of a copy of this judgment.
Consequential benefits also will be sanctioned to the petitioner therein.
8. Learned counsel for the 6th respondent submitted that she had
rejoined duty pursuant to Ext.P6 and therefore she is entitled for grant of
salary and other benefits. This is opposed by the learned counsel for the
petitioner who submitted that in the light of the interim order, the said
contention cannot be accepted. At any rate, the said contention cannot be
accepted since she has accepted voluntary retirement from 1.9.2006.
Therefore, such a claim cannot be countenanced at all and the plea is
rejected.
The writ petitions are disposed of as above. No costs
(T.R. Ramachandran Nair, Judge.)
kav/