IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP No 5682 of 2005
Kishore Kumar Vyas
...Petitioner
VERSUS
1 State of Chhattisgarh
2 CG State Electricity Board
3 Secretary CG State Electricity Board
Daganiya Raipur
...Respondents
! Shri Jitendra Pali counsel for the petitioner
^ 1 Shri Vinay Harit Deputy Advocate General
for the respondent No 1 State
2 Shri A S Gaharwar counsel for the
respondents No 2 and 3
Honble Mr Satish K Agnihotri J
Dated: 29/10/2007
: Order
(Writ Petition under Article 226/227 of the
Constitution of India.)
ORDER
(Passed on 29th October, 2007)
By this petition, the petitioner seeks a writ of
certiorari to quash the impugned order dated 19-9-
2005, whereby the application of the petitioner
to retire voluntarily from services with
effect from 31-10-2005, was granted, despite the fact
that the petitioner had by his subsequent letter
dated 8-9-2005 requested the respondents/authorities
to withdraw his application dated 30-7-2005.
2) The indisputable facts, which are in narrow
compass, are that the petitioner, who was working as
Chief Engineer (Generation) in Chhattisgarh State
Electricity Board (hereinafter referred to as CSEB”),
made an application on 30-7-2005 (Annexure P/1) to the
respondents/Board requesting for voluntary retirement
from services with effect from 31-10-2005. On 8-9-
2005 the petitioner submitted second application
(Annexure P/2) seeking withdrawal of the earlier
application dated 30-7-2005 (Annexure P/1) on the
ground that his health has improved and he would be
able to serve very soon. The respondents/Board
accepted the application of the petitioner dated
30-7-2005 (Annexure P/1) on 19-9-2005, permitting
the petitioner to retire voluntarily from services
with effect from 31-10-2005. The petitioner,
thereafter, again made two representations dated 25-10-
2005 (Annexure P/4) and 5-11-2005 (Annexure P/5)
requesting the respondents/Board to cancel the order
dated 19-9-2005 in view of the fact that prior to
acceptance of his application for voluntary retirement
from services; the petitioner had withdrawn the same
on 8-9-2005.
3) Shri Jitendra Pali, learned counsel appearing for
the petitioner submits that it is well settled that
before the application for voluntary retirement comes
into effect, an employee is at liberty to withdraw the
same. In the facts situation of the case, before the
application dated 30-7-2005 (Annexure-P/1) was
allegedly accepted on 19-9-2005, the petitioner had
made an application on 8-9-2005 to withdraw the
earlier application dated 30-7-2005. Thus, the order
dated 19-9-2005 impugned herein is contrary to law and
deserves to be quashed.
4) Per contra, Shri A.S. Gaharwar, learned counsel
appearing for the respondents No. 2 and 3 relies on
Clause 6 of the Voluntary Retirement Regulations, 1989
(hereinafter, referred to as “the Regulations”), in
support of his contention that under the provisions
of the Regulations, once the petitioner has exercised
his option for voluntary retirement, the same shall be
final and the petitioner would not be permitted to
make second application for withdrawal of the earlier
application for voluntary retirement. He further
contended that the letter dated 30-7-2005 (Annexure
P/1) was accepted before the subsequent letter dated 8-
9-2005 (Annexure P/2) for withdrawal of the earlier
application dated 30-7-2005 (Annexure P/1) on 6-9-
2005. He has produced record and proceedings in
support of his contention.
5) I have heard learned counsel for the parties,
perused the pleadings and documents appended thereto.
It is evident that the petitioner made an application
for voluntary retirement on 30-7-2005 (Annexure P/1)
which was made effective from 31-10-2005, thereafter;
he made second application on 8-9-2005 withdrawing the
first application. The respondents/Board accepted the
application of the petitioner for voluntary retirement
on 19-9-2005.
6) The issue involved in this petition is no longer
res integra. Clauses 3 and 6 of the Voluntary
Retirement Regulations, 1989 read as under:
“3. (i) All permanent employees (class I,
II, III & IV) who have completed 15
years, continuous qualifying service or
more shall have an option for voluntary
retirement before they attain the normal
age of superannuation by giving three
months notice to the appointing
authority.
(ii) It shall be open to the Board either to accept or
reject the option exercised by an employee under
regulation 3(i) in individual cases.
(iii) The weightage upto 5 years will be added to
the qualifying service of the employee who is retired
voluntarily provided that
(a) the total qualifying service including weightage
does not exceed thirty three years;
(b) the period does not go beyond the date of normal
superannuation; and
(c) the weightage is used only for the purpose of
reckoning qualifying service for pension/gratuity and
does not confer any other benefit like notional
increase in pay etc.
6. An option once exercised under these
regulations, shall be final. Any
defective or ambiguous exercise of option
under these Regulations shall be
considered as an exercise of option for
the purpose of these Regulations”.
7) In the matter of Balram Gupta Vs Union of India
and another1, Hon’ble the Supreme Court has held that
the normal rule which prevails in certain cases that
a person can withdraw his resignation before it is
effective would not apply in full force to a case of
this nature where the government servant cannot
withdraw under the provisions of the Rules except
with approval of such authority.
8) In the matter of Power Finance Corporation Ltd.,
Vs. Pramod Kumar Bhatia,2 Hon’ble the Supreme Court
has observed as under:
“7. It is now settled legal
_______________________________
position that unless the employee is
relieved of the duty, after acceptance
of the offer of voluntary retirement
or resignation, jural relationship of
the employee and the employer does not
come to an end. Since the order
accepting the voluntary retirement was
a conditional one, the conditions
ought to have been complied with.
Before the conditions could be
complied with, the appellant withdrew
the scheme. Consequently, the order
accepting voluntary retirement did not
become effective. Thereby no vested
right has been created in favour of
the respondent. The High Court,
therefore, was not right in holding
that the respondent has acquired a
vested right and, therefore, the
appellant has no right to withdraw the
scheme subsequently.”
9) In the matter of Srikantha S.M, Vs. Bharath
Earth Movers Ltd, Hon’ble the Supreme Court has
observed at paras No. 25 and 26 which read as under:
“25. In Shambhu Murari Sinha Vs.
Project and Development India Ltd.,
(Shambhu Murari Sinha II), the view
taken in Shambhu Murari Sinha I, was
reiterated. It was held that when
voluntary retirement was withdrawn by
an employee, he continued to remain in
service. The relationship of employer
and employee did not come to an end
and the employee had locus penitentiae
to withdraw his proposal for voluntary
retirement. He was, therefore,
entitled to rejoin duty and the
Corporation was bound to allow him to
work.
26. On the basis of the above
decisions, in our opinion, the learned
counsel for the appellant is right in
contending that though the respondent
Company had accepted the resignation
of the appellant on 4-1-1993 and was
ordered to be relieved on that day, by
a subsequent letter, he was granted
casual leave from 5-1-1993 to 13-1-
1993. Moreover, he was informed that
he would be relieved after office
hours on 15-1-1993. The vinculum
juris, therefore, in our considered
opinion, continued and the
relationship of employer and employee
did not come to an end on 4-1-1993.
The relieving order and payment of
salary also make it abundantly clear
that he was continued in service of
the Company up to 15-1-1993.”
10) In the matter of HEC Voluntary Retd. Employees
Welfare Society and another Vs. Heavy Engineering
Corporation Ltd., and others, Hon’ble Supreme Court
held that unless a statute or statutory provision
interdicts, the relationship between the parties to
act pursuant to or in furtherance of the voluntary
retirement scheme is governed by contract.
11) In the matter of Ashok Kumar Sahu Vs. Union of
India and others, Hon’ble Supreme Court has divided
the cases of voluntary retirement broadly into three
categories as under:
“29. Cases of voluntary retirement can
broadly be divided into the following
three categories:
(i) where voluntary retirement is automatic and comes
into force on the expiry of notice period;
(ii) when it comes into force, unless an order is
passed within the notice period withholding permission
to retire; and
(iii) When voluntary retirement does not come
into force unless permission to this effect is
specifically granted by the controlling authority.
32. We may observe that an appropriate order should
be passed within a reasonable period. Normally, three
months’ notice is required to be given as the said
period is considered to be reasonable and it is
expected that a decision would be taken within the
said period. But the rule is not an inflexible one.
It would depend upon the facts and circumstances of
each case.”
12) In the matter of Union of India Vs. Gopal
Chandra Misra, the constitution Bench of the Hon’ble
Supreme Court has observed at para 50 which reads as
under:
“50. It will bear repetition that the
general principle is that in the
absence of a legal, contractual or
constitutional bar, a `prospective’
resignation can be withdrawn at any
time before it becomes effective, and
it becomes effective when it operates
to terminate the employment or the
office -tenure of the resignor. This
general rule is equally applicable to
Government servants and constitutional
functionaries. In the case of a
Government servant/or functionary/who
cannot, under the conditions of his
service/or office, by his own
unilateral act of tendering
resignation, give up his service/or
office, normally, the tender of
resignation becomes effective and his
service/or office-tenure terminated,
when it is accepted by the competent
authority. In the case of a Judge of
a High Court, who is a constitutional
functionary and under proviso (a) to
Article 217 (1) has a unilateral right
or privilege to resign his office,
his resignation becomes effective and
tenure terminated on the date from
which he, of his own volition, chooses
to quit office. If in terms of the
writing under his hand addressed to
the President, he resigns in
praesenti, the resignation terminates
his office-tenure forthwith, and
cannot therefore, be withdrawn or
revoked thereafter. But, if he by
such writing, chooses to resign from a
future date, the act of resigning
office is not complete because it does
not terminate his tenure before such
date and the Judge can at any time
before the arrival of that prospective
date on which it was intended to be
effective, withdraw it, because the
Constitution does not bar such
withdrawal.”
13) In the matter of Union of India and another Vs.
Wing Commander T. Parthasarathy, Hon’ble Supreme
Court has observed at para 8 which reads as under:
“8. So far as the case in hand is
concerned, nothing in the form of any
statutory rules or any provisions of
any Act has been brought to our
notice which could be said to impede
or deny this right of the appellants.
On the other hand, not only the
acceptance of the request by the
headquarters, the appropriate
authority, was said to have been made
only on 20-2-1986, a day after the
respondent withdrew his request for
premature retirement but even such
acceptance in this case was to be
effective from a future date namely
31-8-1986, Consequently, it could
not be legitimately contended by the
appellants that there was any
cessation of the relationship of
master and servant between the
Department and the respondent at any
rate before 31-8-1986. While that be
the position inevitably the
respondent had a right and was
entitled to withdraw or revoke his
request earlier made before it ever
really and effectively became
effective.”
14) Clause 3 of the Regulations provides for the
employees to opt for voluntary retirement before they
attain the age of superannuation by giving three
months notice to the appointing authority. Clause 6
of the Regulations provides that once option has been
exercised under the Regulations, the same shall be
final. Any defective or ambiguous exercise of option
under these Regulations shall be considered as an
exercise of option for the purpose of these
Regulations.
15) The petitioner made an application expressing
his desire to take voluntary retirement giving three
months notice from the date of application on 30-7-
2005 to make it effective from 31-10-2005. Exercise
of option cannot be held as complete on 30-7-2005 as
the petitioner has requested for permitting him to
take voluntary retirement with effect from 31-10-
2005. Thus, it cannot be held that the process of
exercise of option is complete before 31-10-2005.
The “exercise of an option” has been defined in P.
Ramanatha Aiyar’s Advanced Law Lexicon, 3rd
Edition, 2005 (page – 1711) as under:
“Exercise of an option – Exercise of
an option means enforcing the right by
the buyer/holder available under the
option contract of buying or selling
the underlying asset at the Strike
Price.”
16) The jural relationship of the employee and the
employer comes to an end on 31-10-2005. The
exercise of an option becomes effective with effect
from 31-10-2005. There was no cessation of
relationship of master and servant between the
respondent -authority and the petitioner had a right
to revoke his request earlier made before it ever
really and effectively became effective in the
present case i.e., 31-10-2005. Thus, the impugned
order dated 19-9-2005 is unjust and improper
and the same deserves to be and is quashed.
17) As a result, this petition is allowed with
consequential relief flowing from this order. Cost
easy.
JUDGE