IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29674 of 2008(G)
1. DR.K.S.RADHAKRISHNAN AGED 53 YEARS
... Petitioner
Vs
1. DIRECTOR OF COLLEGIATE EDUCATION
... Respondent
2. SENIOR ADMINISTRATIVE ASSISTANT
3. STATE OF KERALA,. REP. BY THE SECRETARY
For Petitioner :SMT.SARITHA DAVID CHUNKATH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :21/10/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.29674/2008-G & 1411/2009-R
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Dated this the 21st day of October, 2010.
JUDGMENT
The petitioner herein was the Vice Chancellor of Sree Sankaracharya
University of Sanskrit, Kalady. He was in the service of Government
Collegiate Department since 1.6.1983 and his appointment was regularised
vide order dated 2.8.1983 of the Director Collegiate Education. He was
appointed as Reader by order dated 29.10.2002 of the Director of
Collegiate Education. The documents are referred to as produced in W.P.
(C) No.1411/2009.
2. As per Ext.P1 notification dated 7.12.2004 the petitioner was
appointed as the Vice Chancellor of the above University with effect from
10.12.2004 and the period was to expire on 9.12.2008. Ext.P4 is the
communication dated 4.10.2007 addressed to the Director of Collegiate
Education intimating that he would like to voluntarily retire from service
with effect from 9.12.2008 from the University in the present cadre and
further requesting to take necessary steps to transfer his service in
Collegiate Education Department and remit the required pension
contribution to the University. Ext.P5 is the letter addressed by the
wpc 29674/2008 &
1411/2009 2
Registrar of the University to the Director of Collegiate Education,
forwarding Ext.P4 further requesting to pass appropriate orders on the
petitioner’s request. The Government by Ext.P6 order dated 5.4.2008
accorded sanction for the remittance of Rs.16,76,127/- with simple interest
at the rate of 5% from the date of acquittance to the date of remittance.
Ext.P7 is the further communication issued by the Director of Collegiate
Education according sanction for payment of Rs.19,55,481/-, i.e.
Rs.16,76,127/- as pro-rata pension + Rs.2,79,354/- as interest in respect of
the petitioner. Sanction was accorded to draw the amount from the District
Treasury Trivandrum and to pay the amount by way of Demand Draft drawn
in favour of Finance Officer of the University.
3. Subsequently the Government by Ext.P9 letter, directed the
petitioner to approach the Chancellor by forwarding the representation, for
the orders of the Chancellor who is the appointing authority of the Vice
Chancellor and accordingly the petitioner forwarded a request as Ext.P10.
Later, the Chancellor by Ext.P11, along with the Government Letter dated
29.9.2008, replied to the petitioner directing him to approach the parent
department for seeking voluntary retirement. Ext.P12 is the said letter
addressed by the Principal Secretary to Government to the Deputy
wpc 29674/2008 &
1411/2009 3
Secretary, Governor’s Secretariat wherein the Government has taken the
stand that as the appointment of the petitioner is on deputation, the parent
department will have to examine the matter. Even prior to that, the
petitioner had approached this Court by filing W.P.(C) No.29674/2008
seeking for a direction to disburse the amounts as sanctioned, within a
specified time limit. The writ petition was amended later, when Ext.P12
proceedings were issued wherein the Government took the view that it is
for the parent department to deal with the matter.
4. Subsequently, the Government passed an order whereby the order
sanctioning pro-rata pension was set aside. Ext.P16 produced in W.P.(C)
No.1411/2009 is the order passed by the Government cancelling Ext.P6
order. After the date 9.12.2008 was over, the Director of Collegiate
Education issued a communication Ext.P18 dated 2.1.2009 requesting the
petitioner to report for duty in the Department of Collegiate Education. It
is in these circumstances the petitioner has filed W.P.(C) No.1411/2009
seeking for various reliefs.
5. Mainly it is prayed that a declaration may be granted that the
voluntary retirement exercised by the petitioner has taken effect with effect
from 9.12.2008.
wpc 29674/2008 &
1411/2009 4
6. In W.P.(C) No.1411/2009 this Court passed an interim order dated
14.1.2009 staying all further proceedings pursuant to Ext.P18 which
stands extended until further orders on 27.8.2009.
7. Heard the learned counsel for the petitioner and learned Govt.
Pleader appearing for the respondents.
8. Learned counsel for the petitioner mainly contended that the notice
given by the petitioner to voluntarily retire from service was well in time.
The same is under Rule 56 of Part III K.S.R. Going by sub-rule (iv) of
Rule 56 and the proviso therein, the voluntary retirement of an employee
shall become effective on the date on which he wishes to retire from service
as specified in the notice, if no refusal is communicated to him. Herein, as
the refusal was never communicated, it has become effective from
9.12.2008. Therefore, the proceedings issued requesting the petitioner to
rejoin duty, as per Ext.P18 cannot be supported. Reliance is placed on the
decisions of the Apex Court in Dinesh Chandra Sangma v. State of
Assam and others (AIR 1978 SC 17) and Tek Chand v. Dile Ram
{(2001) 3 SCC 290} and that of a Division Bench of this Court in
Venugopal v. State of Kerala (2010 (2) KLT 111). It is also pointed out
by the learned counsel for the petitioner that the petitioner was asked to
wpc 29674/2008 &
1411/2009 5
approach the Chancellor by the Government itself. Subsequently, the said
stand has been changed by the Government by making it clear that it is for
the parent department to take action. Ultimately, the application was never
refused. It is also pleaded that the orders cancelling the sanction earlier
given to remit Rs.19,55,581/- to the University, is issued without notice to
the petitioner and hence the same is bad in law.
9. Learned Govt. Pleader mainly contended that as the petitioner was
on deputation, the Government could have granted permission to voluntarily
retire, only after the petitioner joins duty. It is therefore pointed out that as
the Chancellor is not the appointing authority, the parent department alone
could have taken action in the matter and only after rejoining duty any
action could have been taken. Therefore, it is pointed out that it was
obligatory on the part of the petitioner to rejoin duty and the challenge
against Ext.P18 is not sustainable.
10. Certain subsequent developments, also will be relevant here.
Going by the counter affidavit, the date of birth of the petitioner is
3.10.1954. The date of superannuation is 31.10.2009 and the date of
retirement is 31.3.2010. Therefore, at this stage the direction to report back
to duty cannot obviously be implemented. Learned counsel for the
wpc 29674/2008 &
1411/2009 6
petitioner submitted that the petitioner is not interested also in reckoning the
period from 9.12.2008 till 31.3.2010 as service and he sticks to the stand
that in the light of the refusal to grant permission, he should be deemed to
have been retired from service on 9.12.2008. Accordingly it is prayed that
a direction may be issued to disburse the pensionary benefits without further
delay.
11. The whole question turns upon the effect of the relevant rules
considered by a Division Bench of this Court in Venugopal’s case (2010
(2) KLT 111). The scheme under Rule 56 of Part III K.S.R. shows that a
person who has got the qualifying service of 20 years, can give notice in
writing to retire at least three months before the date on which he wishes to
retire. Going by sub-rule (iv), voluntary retirement shall become effective
on the grant of permission to retire by the authority competent to make
appointment to the post. The proviso therein is important here. If the
authority 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) provides that
“permission to retire shall be given in all cases except those in which
wpc 29674/2008 &
1411/2009 7
disciplinary proceedings are pending for imposition of a major penalty,” etc.
etc.
12. In the decision of the Apex Court in Dinesh Chandra
Sangma’s case (AIR 1978 SC 17), which arose from Rules 56(b) and 56(c)
of Assam Fundamental Rules, it was held that the sub rule gives a right to
the Government servant to voluntarily retire from service by giving the
Government three months notice in writing. In Venugopal’s case (2010
(2) KLT 111), this Court considered the question in the light of various
decisions of the Apex Court. It was held that Rule 56(iv) and proviso binds
the employer and employee. The legal position was laid down thus in
para 6:
“The proviso to R.56(iv) comes into operation on the date notified
by the employee as the date on which he wishes to retire as
specified in the notice under clause (i). The effect of the proviso is
that unless the authority competent to make appointment to the post
refuses to grant permission for retirement before the date on which
the employee wishes to retire as specified in the notice under clause
(i), the retirement shall become effective from the date specified in
the notice. The said provision is clear and categoric. It is part of
the statutory rules made by the State in exercise of authority under
the Kerala Public Services Act, 1968, germinating from the
Constitution. It is a rule which binds the employer and the
wpc 29674/2008 &
1411/2009 8employee.”
13. Therefore, going by the said dictum, in the light of the proviso to
Rule 56(iv), unless the authority competent to make appointment to the post
refuses to grant permission for retirement before the date on which the
employee wishes to retire as specified in the notice, the retirement shall
become effective from the date specified in the notice. Learned counsel for
the petitioner therefore submitted that the petitioner will be deemed to have
been retired from service from 9.12.2008. The Bench in the above decision,
relied upon an earlier decision of the Apex Court in State of Haryana v.
S.K. Singhal {(1999) 4 SCC 293}. In the said decision, the Apex Court
examined a similar question in the light of the positive provision similar to
the one contained in the proviso to Rule 56(iv) and after analysing the
same, the Division Bench held thus in para 12:
“So proceeding, S.K. Singhal (supra) was decided holding that
when there is a positive provision that where the appointing
authority does not refuse to grant the permission before the expiry
of the notice period, the retirement shall become effective from the
date of expiry of the said period, it becomes one on a stronger
footing than Dinesh Chandra Sangma (supra). The plea of the
State to the contrary was accordingly turned down. Thus, among
the rules deducible as the ratio decidendi of S.K.Singhal (supra)
wpc 29674/2008 &
1411/2009 9supported by Dinesh Chandra Sangma (supra) and B.J. Shelat
(supra) is the principle that when there is a positive provision that
the voluntary retirement of an officer shall become effective from
the date specified by the officer in his notice in terms of the rules, if
the competent authority does not refuse such permission before that
date, the retirement of that officer shall become automatically
effective from the date of expiry of the notice period. This is, thus,
the settled law on the point.”
Therefore, in the absence of a refusal by the appointing authority before the
date specified in the notice, the retirement of that officer will be
automatically effective from the date of expiry of the notice period. The
decision of the Apex Court in Tek Chand’s case {(2001) 3 SCC 290}
followed the decision of the Apex Court in S.K. Singhal’s case {(1999) 4
SCC 293}.
14. Therefore, herein as the petitioner’s request Ext.P4 which is
dated 4.10.2007, was well in time and as he requested for permission to
retire with effect from 9.12.2008, the notice is valid in law.
15. Herein, the learned Govt. Pleader pointed out that the petitioner,
in those letters, actually also wanted to transfer his service under the
Collegiate Education Department to the University, so as to draw pension
from the University and therefore they cannot be treated as proper notices
wpc 29674/2008 &
1411/2009 10
under the relevant rules. It is therefore pointed out that as directed in
Ext.P18, as he was on deputation, he had to join back to the parent
department and normally the refusal after the period of deputation will
invite other consequences also.
16. Herein, two things are important. The contention whether the
notice Ext.P4 which was followed by Ext.P3, in any way, is defective, is
the question and while considering it, how the same were understood by the
Government and the parent department, also is relevant in this context.
That he was on deputation as Vice Chancellor, is beyond dispute. Even
though the respondents maintain that the petitioner ought to have joined
back after the period of deputation is over, so as to consider his applications
no specific rule or other provisions are relied upon in support of the above
plea. The petitioner had been maintaining that there is no law which states
that deputationists cannot seek voluntary retirement. In the counter
affidavit also no particular provision is relied upon. The notice Ext.P4 is
addressed to the Director of Collegiate Education who is the appointing
authority. In para 4 it is clearly stated that “I would like to voluntarily retire
from the service with effect from 9.12.2008 from this University in the
present cadre and prefer to claim pensionary benefits from this University.”
wpc 29674/2008 &
1411/2009 11
Clearly, the same is really a notice conveying his intention to voluntarily
retire from service with effect from 9.12.2008. No particular form is
prescribed under the Rules to give notice. True that he had requested to
transfer his service in the Collegiate Education Department and remit the
required pension contribution to the University. But that will not defeat the
purpose of the notice and the same is separable. This was forwarded
through the Registrar of the University, as evident from the covering letter
Ext.P5. The same was acted upon by the Government also as evident
from Ext.P6 dated 5.4.2008 by the Government according sanction for the
remittance of Rs.16,76,127/- with interest. Ext.P7 is the proceedings of the
Director of Collegiate Education according sanction for payment of an
amount of Rs.19,55, 481/-. In the meanwhile, the petitioner by Ext.P3
D.O. letter dated 11.4.2008 again communicated his intention to voluntarily
retire, to the Principal Secretary, Higher Education Department. It is
stated that he would like to voluntarily retire from service with effect from
9.12.2008 as Vice Chancellor of the University and further requested to
take necessary steps to grant permission to retire from service. There is no
case for the respondents that the above letter was not received.
17. When things stood as such, the Government felt that the
wpc 29674/2008 &
1411/2009 12
petitioner should approach the Chancellor since according to the
Government, he is the appointing authority of the Vice Chancellor which
fact was conveyed by Ext.P9 letter and the petitioner was thus compelled to
approach the Chancellor as per Ext.P10 solely because of the above letter.
This was answered by the Chancellor as per Ext.P11, communicating a
letter dated 29.9.2009 of the Government itself (Ext.P12) wherein the
Government changed its earlier stand abruptly and conveyed the opinion
that it is for the parent department to take a decision.
18. Even going by Ext.P12, there is no refusal by the Government or
by the parent department to consider his request. After stating the fact that
his appointment to the post of Vice Chancellor is on deputation and that he
has to return to his parent department, in the last portion, it is stated that “in
the light of the above, the request of Shri K.S. Radhakrishnan will be
examined by Government as per rules after he rejoins duty in the parent
Department.” Therefore, this evidences the fact that there was no refusal
also. Actually, no such refusal was communicated to the petitioner prior to
9.12.2008. The direction issued by the Director of Collegiate Education to
the petitioner to rejoin duty is dated 2.1.2009 (Ext.P18) which is after the
crucial date, i.e. 9.12.2008 chosen by the petitioner to voluntarily retire
wpc 29674/2008 &
1411/2009 13
from service. Therefore, the said letter cannot also be taken as a refusal to
grant permission to retire from service.
19. The entire scheme of Rule 56 does not contain any provision that
a person who is on deputation, will have to report back before submitting
an application for voluntary retirement. The rules concerning deputation
contained in Part I K.S.R. also do not prohibit a person who is on
deputation, to submit an application for voluntary retirement. Therefore,
the insistence by the respondents that the petitioner should have joined back
after 9.12.2008 on expiry of his term as Vice Chancellor, is evidently
unsupportable. The petitioner wanted to retire from service co-inciding
with the expiry of the tenure of the term as Vice Chancellor. There was
nothing in law preventing him to opt for that date. Herein, learned counsel
for the petitioner submitted that the meaning of the term “notice” is to give
information which should be actually communicated and that part was over
as far as the petitioner is concerned. Evidently, the notice will imply in the
legal sense communication of a fact to an authorised person. Herein,
Ext.P4 is evidently addressed to the appointing authority itself and Ext.P3 is
also a reminder sent to the Government also. It can therefore be safely held
that valid notice was served by the petitioner. Merely because there
wpc 29674/2008 &
1411/2009 14
was a request to transfer various amounts to the University, that does not
affect the validity of the notice. At the most it can only be said that, that
part could not have been acted upon by the Government. But herein, that
was readily accepted by the Government and sanction was accorded which
was followed by a competent proceedings issued by the Director of
Collegiate Education.
20. Herein, one more aspect is relevant. The petitioner filed W.P.(C)
No.29674/2008 on 6.10.2008, well before the date 9.12.2008. In the
counter affidavit filed therein, in para 3 while referring to Ext.P4, it is stated
that “In Ext.P4 representation dated 4.10.2007 addressed to the Director of
Collegiate Education the petitioner has expressed his willingness to retire
voluntarily from service on 9.12.2008 only.” In pare 4 also it is stated that
“the petitioner had approached the Government for permitting him to retire
voluntarily with effect from 9.12.2008.” Therefore, evidently the averments
will show that such letters were treated as expressing his willingness to
retire voluntarily from service with effect from 9.12.2008. Therefore, the
contrary stand taken now disputing the validity of the notice cannot be
justified. The contention raised in the counter affidavit therein is that it is
not the Chancellor to grant permission, but the parent department and
wpc 29674/2008 &
1411/2009 15
therefore he has to return to the parent department and then only the
authority can grant permission.
21. Even after filing of W.P.(C) No.29674/2008 well before
9.12.2008, no communication was issued to the petitioner refusing to grant
him permission to voluntarily retire from service.
22. A similar situation was considered by the Apex Court in Tek
Chand’s case {(2001) 3 SCC 290}. In para 33 similar rules have been
examined by the Apex Court. It was held thus:
“It is clear from sub-rule (2) of the Rule that the appointing
authority is required to accept the notice of voluntary retirement
given under sub-rule (1). It is open to the appointing authority to
refuse also on whatever grounds available to it but such refusal has
to be before the expiry of the period specified in the notice. The
proviso to sub-rule (2) is clear and certain in its terms. If the
appointing authority does not refuse to grant the permission for
retirement before the expiry of the period specified in the said
notice, the retirement sought for becomes effective from the date of
expiry of the said period.”
The same is the position herein.
23. In the decision of the Apex Court in Dinesh Chandra Sangma’s
case (AIR 1978 SC 17), while examining the effect of F.R. 56(c), it was
wpc 29674/2008 &
1411/2009 16
held that “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 F.R. 56(c) to voluntarily retire from
service by giving the Government three months’ notice in writing. ”
Therefore, the legal effect of the notice is therefore clear and the notice will
become effective if there is no refusal by the appointing authority before the
date on which the employee wishes to retire.
24. In that view of the matter, the petitioner will be deemed to have
retired from service with effect from 9.12.2008 itself. The subsequent
events also will show that he has already attained the age of superannuation
and would have retired from service actually on 31.3.2010. Therefore, at
any rate, Ext.P18 cannot be implemented at this distance of time.
25. For all these reasons, the writ petitions are allowed. There will
be a declaration that the petitioner will be deemed to have been retired from
service with effect from 9.12.2008 as the voluntary retirement exercised by
the petitioner has become effective from that date. Ext.P18 is therefore
quashed. There will be a further direction to the respondents to sanction
pension and other retirement benefits of the petitioner and appropriate
orders will be passed within a period of two months from the date of receipt
wpc 29674/2008 &
1411/2009 17
of a copy of this judgment and the retirement benefits will be disbursed
accordingly. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/