IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27303 of 2009(G)
1. SUMANGALA K.,
... 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),
7. DISTRICT PROJECT OFFICER,
For Petitioner :SRI.M.K.PRADEEPKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :10/06/2009
O R D E R
C.R
C.T. RAVIKUMAR, J.
--------------------------------------------
W.P.(C). NO.27303 OF 2009
--------------------------------------------
Dated this the 10th day of June, 2010
JUDGMENT
The issue whether the petitioner had locus penetentiae to withdraw
the notice of voluntary retirement from service and certain allied questions
arise for consideration in this case. The facts, in succint sufficient to
decide the said issue, are as follows:
2. The petitioner while working as High School Assistant
(Hindi), under the General Education Department, was sent on deputation
as per Ext.P1 dated 17.7.2004, to the Surva Shiksha Abhiyan Project (for
short the ‘SSA Project’). It is a project under the Central Government.
Later, the petitioner had submitted Ext.P2 application dated 8.2.2008 to the
Deputy Director of Education, Alappuzha to permit her to retire
voluntarily with effect from 31.3.2008. According to the petitioner, there
was no response at all to Ext.P2 application and she continued in the SSA
Project till 31.3.2010. The petitioner was also given salary and other
allowances upto 31.1.2010. However, payment of salary was discontinued
from 31.1.2010 onwards. It was so intimated to the petitioner as per
Ext.P15. Subsequently, Ext.P16 order dated 25.3.2010 was issued by the
W.P.(C) NO.27303/2009 2
District Project Officer (SSA) Alappuzha repatriating the petitioner to the
parent department with instruction to report before the third respondent
forthwith. Ext.P17 dated 31.3.2010 is the relieving order. On being
relieved off the duties of the SSA Project, the petitioner reported to the
third respondent as per Ext.P18. However, the third respondent did not
permit the petitioner to rejoin duty citing the reason that her request for
voluntary retirement with effect from 31.3.2008 was already accepted by
the Department. The said fact is evident from Ext.P19. It is in the
aforesaid circumstances that this Writ Petition has been filed for a
declaration that the petitioner’s continuance in service is lawful and proper
and that Ext.P2 has become infructuous. The further prayer in the Writ
Petition is for the issuance of a writ of mandamus commanding the
respondents to close the file in respect of voluntary retirement made out by
the petitioner vide Ext.P3, as infructuous.
3. A counter affidavit has been filed in this Writ petition by the
third respondent. The main thrust of the contentions therein is that by
virtue of application of proviso to Rule 56 (4) Part III of Kerala Service
Rules, the petitioner should be deemed to have been retired from service
with effect from the intended date of retirement specified in Ext.P2 viz.,
W.P.(C) NO.27303/2009 3
31.3.2008. Therefore, according to the respondents, the continuance of the
petitioner beyond 31.3.2008 is illegal. The respondents are entitled to
recover the salary and other allowances received by the petitioner after
31.3.2008. Earlier, Ext.P7 notice was issued to the petitioner as also to the
Headmistress of Government High School, Paravoor wherein the petitioner
was working when she was deputed to the SSA Project. It is stated in the
counter affidavit that the petitioner had specifically shown 31.3.2008 as
the intended date of voluntary retirement and, on or before that date, the
authority competent to make appointment to the post did not issue any
order refusing to grant the permission for granting voluntary retirement.
Therefore, it became effective with effect from 31.3.2008 itself.
4. The contention of the petitioner is that subsequent to Ext.P2
dated 8.2.2008, the petitioner had submitted Ext.P5 application dated
2.4.2008 requesting to withdraw Ext.P2 application. The specific
contention of the petitioner is that no order was passed by any of the
authorities despite the receipt of Ext.P5 and, that apart, she continued in
the service of SSA Project pursuant to the deputation till 31.3.2010. It is
her specific case that despite the receipt of Ext.P2, the term of deputation
of all the deputationists including the petitioner was extended as per
W.P.(C) NO.27303/2009 4
Ext.P12. In Ext.P12, the name of the petitioner figures at 13. As noticed
hereinbefore, the petitioner was disbursed with the salary and other
allowances till 31.1.2010. The same was discontinued only pursuant to
Ext.P15. Further, she was relieved as per Ext.P17 only on 31.3.2010. In
short, after the intended date of retirement, the petitioner had worked till
31.3.2010. Exts.P16 and P17 would reveal that she was relieved from SSA
Project with a specific direction to report before the third respondent.
According to the petitioner, Ext.P2 application had not taken its effect
either on 31.3.2008 or thereafter and therefore, when she reported before
the third respondent pursuant to Ext.P17, she should have been permitted
to rejoin duty in the parent department.
5. According to me, it is unnecessary to delve into the facts any
more in view of a Division Bench decision of this Court in VenuGopal v.
State of Kerala reported in 2010(1) ILR 867. After referring to the rules
relating to voluntary retirement applicable to employees in different states,
it was held that under certain rules, expiry of the period specified in the
notice would result in automatic retirement of an employee upon the expiry
of the period specified in the employees’ notice. It is further held that
certain rules are couched in such manner that even upon the expiry of the
W.P.(C) NO.27303/2009 5
period specified in the notice, the retirement is not automatic and an
expressed order granting permission is required. That apart, the same has
to be communicated as well. In explicit terms, it has been held that Rule
56 of Part III Kerala Service Rules fall under the first category. In this
context, it is relevant to look into the proviso to Rule 56(iv) of Part III
Kerala Service Rules. As per the same, in case the authority competent to
make appointment to the post held by the concerned employee who applied
for voluntary retirement, does not refuse to grant permission for retirement
before the date on which the employee wished to retire, the retirement
would become effective with effect from the date specified in the notice.
In this case, admittedly, the intended date of retirement was specified as
31.3.2008 by the petitioner. It is also not in dispute that before the said
date, no order refusing to grant permission for voluntary retirement was
passed. The fact that the petitioner had continued in service of SSA even
after the said date cannot be a reason to arrest the automatic operation of
the aforesaid provision. Admittedly, the petitioner had submitted Ext.P5
only after the intended date of voluntary retirement. It was submitted only
on 2.4.2008 whereas the intended date of retirement was 31.3.2008. To
know whether Ext.P5 letter dated 2.4.2008 has got any impact, one has to
W.P.(C) NO.27303/2009 6
look into the relevant provision under the statute viz., proviso to Sub-rule
(iv) of Rule 56 of Part III of the Kerala Service Rules that contains the
doctrine of deemed acceptance. It reads thus:-
“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.”
Sub-rule (v) of Rule 56 also has relevance in the context of the case and it
runs as hereunder:
Permission to retire shall be given in all cases except
those in which disciplinary proceedings are pending
for imposition of a major penalty or the disciplinary
authority, having regard to the circumstances of the
cases is of the view that the imposition of the penalty of
removal or dismissal from service would be warranted
or in which prosecution is contemplated or may have
been launched in a Court of Law against the officer;
A scanning of proviso to Sub-rule (iv) of Rule 56 would undoubtedly show
that it postulates a positive action viz., refusal to grant permission for
retirement, in order to prevent one’s voluntary option for retirement to
become effective by virtue of its operation. Admittedly, none of the
W.P.(C) NO.27303/2009 7
circumstances contemplated under Sub-rule (v) of Rule 56 existed in this
case, warranting denial of such permission. In the circumstances, in the
light of proviso to Sub-rule (iv) of Rule 56 and the Division Bench
decision reported in 2010 (1) ILR 867 (supra), I am of the view that the
inescapable conclusion can only be that the petitioner should be deemed to
have been retired voluntarily on 31.3.2008. Thus, by virtue of legal
provision, the jural relationship has come to an end and it was only
thereafter, Ext.P5 dated 2.4.2008 was submitted for permission to
withdraw Ext.P2 option of voluntary retirement. In the said circumstances,
the petitioner could not claim that he had locus penetentiae to withdraw the
option of voluntary retirement on 2.4.2008. In fact, Ext.P5 dated 2.4.2008
was a request to permit him to withdraw Ext.P2 and to resume duty. In the
light of the proviso to Sub-rule (iv) of Rule 56 of Part III KSR, the said
request could not have been granted. Therefore, the contention of the
petitioner regarding its non-consideration needs no serious consideration.
Evidently, the effective date of voluntary retirement in this case is
31.3.2008 and, therefore, the fact that he was not actually relieved on
31.3.2008 and continued in service cannot have any legal impact and it
cannot by itself make the request for withdrawal acceptable and allowable
W.P.(C) NO.27303/2009 8
in the light of the decision of the Hon’ble Apex Court in J.N.Srivastava v.
Union of India & another reported in 1998 (9) SCC 559 and JT 1997(4)
SCC 300. In this context, it is also to be noted that the petitioner as also
the Headmistress of Government High School, Paravur were issued with
Ext.P7 notice dated 8.9.2008. In the light of Ext.P8 also, the petitioner
cannot be heard to contend that she is legally entitled to resume duty
merely on account of her continuance beyond 31.3.2008. Therefore, the
petitioner is not entitled to get a declaration that her continuance in service
was lawful and that Ext.P2 has become infructuous. So also, the fact that
the petitioner continued in the SSA Project till 31.3.2010 also cannot
nullify the effect of the proviso to Rule 56(iv) of Part III KSR. For all
these reasons, I am of the view that Ext.P2 submitted by the petitioner for
voluntary retirement should be deemed to have been taken its effect from
31.3.2008 and, therefore, the petitioner cannot be granted the relief to
enable resumption of duties.
6. But, in this case, as is obvious from the records, the petitioner
had continued beyond 31.3.2008 under the SSA. In fact, she continued for
more than two years and the said fact is evident from Exts.P16 and P17. It
is also an admitted position that till 31.1.2010, the petitioner was given
W.P.(C) NO.27303/2009 9
salary and other allowances. The petitioner was relieved from SSA
Project only on 31.3.2010. Therefore, the question is, whether in the said
circumstances, the respondents are justified in attempting to recover the
amount already paid to the petitioner. Having exploited her service, the
respondents cannot deny her remuneration. Even if they had engaged
somebody in any capacity, they could not have denied the remuneration.
Therefore, there is absolutely no justification for the respondents to initiate
steps to recover the amount already paid to the petitioner till 31.1.2010.
But, of course, that period is not reckonable for the purpose of granting the
pensionery benefits. The impact of the proviso to Rule 56 (iv) would
definitely disentitle the petitioner from claiming for any other service
benefits beyond 31.3.2008. Though the petitioner was served with Ext.P7
notice, no action was, in fact, taken against the petitioner. Therefore, even
in the absence of a challenge against the recovery proceedings, I think in
the interest of justice, this Court has to interfere and mould the relief
accordingly. Therefore, there will be a direction to the respondents not to
pursue with any kind of proceedings against the petitioner for the purpose
of recovering the amounts received by the petitioner after 31.3.2008 till
31.1.2010. Needless to say that the competent authorities among the
W.P.(C) NO.27303/2009 10
respondents shall take appropriate steps for the disbursement of the
benefits due to the petitioner on account of her voluntary retirement with
effect from 31.3.2008, expeditiously.
The Writ Petition is disposed of as above.
(C.T. RAVIKUMAR, JUDGE)
spc
W.P.(C) NO.27303/2009 11
C.T. RAVIKUMAR, J.
W.P.(C). NO. /2010
JUDGMENT
June, 2010
W.P.(C) NO.27303/2009 12