R.K. Divakara vs The Chief Executive Officer And … on 13 February, 2007

Central Administrative Tribunal – Bangalore
R.K. Divakara vs The Chief Executive Officer And … on 13 February, 2007
Equivalent citations: 2008 1 STJ 70 NULL
Bench: G S Vice, R A Gautam


ORDER

G. Sivarajan, J. (Vice Chairman)

1. The applicant, a News Reader-cum-Translator in the All India Radio, Bangalore while working as such, made an application seeking voluntary retirement from service on 27.4.2005 before the 3rd respondent (Annexure-A1). Since the Appointing Authority of the applicant was the 2nd respondent, the applicant was asked to send the application to the said respondent. Accordingly, the applicant made the request for voluntary retirement to the 2nd respondent as per communication dated 15.7.2005 (Annexure-A2). It is stated therein that having qualifying age of 55 years and 8 months and putting in 29 years and 10 months by August 2005 I may kindly be permitted to retire myself from service voluntarily on 1st September, 2005 with due retirement benefits under Rule 48′. Since the applicant did not give the required notice period (at least 3 months notice) he was asked orally to furnish the reasons. Accordingly the applicant submitted his explanation in his communication dated 24.8.2005 (Annexure-A3). In the said communication he had stated that ‘the conditions and contents of his professional scene have suddenly changed multifold’. Though he is capable of contributing his fullness to the demand, functionally, he feels structural support lacking. Annexure-A3 further shows that he sought permission to retire from service voluntarily effective from 1st or 16th September, 2005 with duly eligible retiral benefits. The applicant thereafter submitted a representation dated 12.9.2005 (Annexure-A4). The subject of the representation shows that he is seeking permission to withdraw his voluntary retirement application dated 15.7.2005. It is stated therein that in the changed circumstances since his voluntary retirement application dated 15.7.2005 the recent News Editor has assured him a qualitative change in the news format and presentation of news events with prime emphasis on Regional News as mainstay of RNU and has sought his creative and intellectual involvement. It is also stated that since a positive response has become inevitable, as per the advise of the News Editor he thereby sought kind permission to withhold his application for now and also stated that he deeply apologise for the inconvenience caused to the Administration by not holding firm to his own previous stand. It is stated that the applicant on 14.10.2005 (Annexure-A5) gave a representation explaining the chronology of events showing the withdrawal where he says that he sought withdrawal of the voluntary retirement application on 12.9.2005. However, the third respondent issued a communication dated 21/26.6.2006 (Annexure-A6) with reference to the representation dated 14.10.2005. It is stated therein that the said request was considered by the Competent Authority namely the 2nd respondent and that the said respondent had again intimated their decision dated 9.6.2006 stating that the application seeking for permission to withhold the application dated 15.7.2005 for voluntary retirement from service has once again considered by the Competent Authority in accordance with the provisions contained under Rule 48(2) and rejected. It is also stated that the voluntary retirement with effect from 1.9.2005 has been accepted by the 2nd respondent. The applicant then made a further representation dated 26.6.2006 (Annexure-A7) where he has stated that he had continued in service, performed all the assigned duties and also received salary, increment and other due benefits even after 1.9.2005 and requested for withdrawing the communication dated 21/26.6.2006. The said request was also rejected by the order dated 27.6.2006 (Annexure-A8) repeating the stand already taken by the 2nd respondent. The applicant was relieved from service with effect from the forenoon of 27.6.2006. Being aggrieved by the said orders the applicant has filed this O.A.

2. The respondents have filed a reply. They have also produced certain documents along with the said reply. Annexure-R4 dated 24.8.2005 is referred to in Paragraph 8 in reply to Paragraph-4(c) of the O.A. A comparison of Annexure-A3 and Annexure-R4 shows that the due date for retirement sought for by the applicant was 16.9.2005 as against the date 1.9.2005/16.9.2005 occurring in Annexure-A3. In other words as per the letter dated 24.8.2005 (Annexure-R4) sent by the applicant and received by the 2nd respondent the due date for voluntary retirement sought was 16.9.2005 only. The respondents in their reply have stated that the applicant had submitted a request for voluntary retirement on 15.7.2005, that the same was forwarded to the 2nd respondent, that since the applicant did not give minimum 3 months notice period as contemplated under Rule 48, reason for voluntary retirement was sought and that the applicant had stated the reasons in his representation dated 24.8.2005 (Annexure-R4). The 2nd respondent has accepted the voluntary retirement application dated 15.7.2005 with effect from 1.9.2005 as per the order dated 6.9.2005 (Annexure-R5). Thereafter the applicant had submitted the representation dated 12.9.2005 for withholding the application dated 15.7.2005, the 2nd respondent had considered and rejected the same on the ground that the reasons stated were not satisfactory and that the subsequent representations were also rejected by the 2nd respondent which fact was known to the applicant also.

3. As against the contention of the applicant that though he had made request for voluntary retirement in the communication dated 15.7.2005 as modified by the communication dated 24.8.2005 seeking voluntary retirement from 16.9.2005, the applicant was not informed of any such acceptance it is stated that the acceptance letter dated 6.9.2005 was received on 8.9.2005 and the same was communicated to the applicant as could be seen from Annexure-R5 itself. It is further stated that the applicant was very much aware of the acceptance of the voluntary retirement by the 2nd respondent in Annexure-R5. It is further stated that the News Editor, who is his immediate superior authority in spite of the acceptance of the voluntary retirement with effect from 1.9.2005, did not relieve the applicant on the ground that the withdrawal application has to be considered for the reason that the applicant is an asset to the organisation and that he must be retained to use his professional skills (evidenced by Annexure-R6). The respondents have not denied the fact that the applicant, notwithstanding the acceptance of his voluntary retirement with effect from 1.9.2005, was allowed to continue in service and that he was relieved from service only after communication dated 27.6.2006 which is impugned in this O.A. Various other averments with regard to the assurance given by the News Editor and the inability of the first respondent to provide such facilities assured are also stated. The respondents in fact sought to justify the order passed by the 2nd respondent.

4. The applicant has filed a rejoinder wherein he had not specifically denied the averments of the respondents that the order dated 6.9.2005 accepting the voluntary retirement with effect from 1.9.2005 has been served on the applicant and that the applicant was aware of the said order. On the other hand the stand taken in the rejoinder, it would appear, is based on communication dated 26.6.2006 (Annexure-A7) submitted by the applicant. The stand is that the applicant submitted the voluntary retirement application on 15.7.2005, that as per the provisions of Rules 48/48-A there is a requirement of minimum of 3 months notice, that the said notice period expires only on 14.10.2005, that the applicant had sought to withdraw the voluntary retirement application well before that date on 12.9.2005 and, therefore, the 2nd respondent was bound to consider the said application.

5. We heard Mr. G.R. Prakash, learned Counsel for the applicant. He submitted that the applicant initially made the application on 27.4.2005 seeking voluntary retirement with effect from 1.9.2005 giving the minimum period of three months notice, that thereafter a proper application was submitted before the 2nd respondent on 15.7.2005 showing the date of retirement as 1.9.2005, that the due date of voluntary retirement was altered to 16.9.2005 in the communication dated 24.8.2005 showing the reasons for voluntary retirement and that before the expiry of the due date for voluntary retirement the applicant made a request dated 12.9.2005 seeking withholding/withdrawal of the voluntary retirement application assigning reasons therefor. Counsel submits that in view of the decision of the Hon’ble Supreme Court in Balram Gupta v. Union of India and other decisions the 2nd respondent was bound to consider the withdrawal application and to accept/approve the same. Counsel submits that the 2nd respondent did not consider the request dated 12.9.2005 submitted by the applicant keeping in mind the decision of the Supreme Court. Counsel further submitted that, even though the 2nd respondent had accepted the request for voluntary retirement with effect from 1.9.2005 the same was kept in abeyance in view of the withdrawal letter dated 12.9.2005 and had permitted the applicant to continue in service without break till June 2006 and, therefore, it must be taken that the respondents had accepted the withdrawal application. Counsel submitted that in the instant case the applicant sought for voluntary retirement only from 16.9.2005 as is evidenced by Annexure-R4 and therefore, the acceptance of the voluntary retirement from 1.9.2005 was unauthorized. Counsel further submitted that the applicant in the letter dated 12.9.2005 had clearly stated the reasons for withdrawal of the voluntary retirement applications and the same is substantiated by the letter of the New Editor also.

6. On the other hand Mr. K.N. Chandrashekar, learned Senior Central Government Standing Counsel appearing for the respondents submits that the applicant’s representation dated 15.7.2005 seeking voluntary retirement was considered by the 2nd respondent and the same was accepted with effect from 1.9.2005 as sought for by the applicant in the order dated 6.9.2005. The Standing Counsel submits that it is well settled position that once the application for voluntary retirement is accepted the applicant cannot seek for withdrawal of the said application or for continuance in service. The Standing Counsel has also relied on the latest decision of the Supreme Court in Chand Mal Chayal v. State of Rajasthan 2007(1) SCC (L&S) 1989. He further submitted that the reasons stated by the applicant in his application for voluntary retirement was that structural support was lacking and that in the withdrawal application he has only stated that the News Editor has given him an assurance to the effect that the situation will be improved but the respondents have no plan to introduce major changes in the infrastructural facilities and format and presentation of news events in the RNUs of AIR including RNU, AIR, Bangalore and therefore, the reasons stated for the change in circumstances is not satisfactory one. The Standing Counsel, in short, submitted that the Competent Authority had considered the matter in all its perspective and had rejected the request for withdrawal of the voluntary retirement application.

7. We have considered the rival submissions and also perused the pleadings in the case. The bare facts required for adjudication of this case are as follows: The applicant made a proper application for voluntary retirement on 15.7.2005 before the 2nd respondent through the 3rd respondent; in response to a query raised regarding the reason for voluntary retirement without giving the full notice period the applicant has explained the circumstances in his letter dated 24.8.2005; in the said communication the applicant has specified the due date for voluntary retirement as 16.9.2005 as against the date 1.9.2005 shown initially; though the applicant had maintained that he had not received any acceptance letter, the fact remains that the 2nd respondent had passed an order on 6.9.2005 accepting the voluntary retirement with effect from 1.9.2005; the said order was received by the 3rd respondent on 8.9.2005; the applicant submitted a representation dated 12.9.2005 seeking to withhold the voluntary retirement application and in the subsequent correspondence he maintained that he sought to withdraw the voluntary retirement application in the changed circumstance; notwithstanding the receipt of the acceptance order the applicant was not relieved; he was allowed to continue in service till 27.6.2006.

8. Rules 48 and 48-A of the Central Civil Services (Pension) Rules read thus:

48. Retirement on completion of 30 years’ qualifying service:

(1) At any time after a Government servant has completed thirty years’ qualifying service-

(a) he may retire from service, or

(b) he may be required by the Appointing Authority to retire in the public interest and in the case of such retirement the Government servant shall be entitled to a retiring pension:

Provided that-

(a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire;

 xxx                 xxx                     xxx
 

(1-A)(a) A Government servant referred to in Clause (a) of the first proviso to Sub-rule (1) may make a request in writing to the Appointing Authority to accept notice of less than three months giving reasons therefor.
 

(b) On receipt of a request under Clause (a), the Appointing Authority may consider such request 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 notcause any administrative inconvenience, Appointing Authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
 

(2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the Appointing Authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority;
 

Provided that the request for withdrawal shall be within the intended date of his retirement.
 xxx                 xxx                       xxx
 

48-A. Retirement on completion of 20 years' qualifying service.
  

(1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
 xxx                 xxx                    xxx
 

(2) The notice of voluntary retirement given under Sub-rule (1) shall require acceptance by the Appointing Authority;
 

Provided that where 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 shall become effective from the date of expiry of the said period.
 

(3-A)
  

(a) A Government servant referred to in Sub-rule (1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reasons therefor.
 

(b) On receipt of a request under Clause (a), the Appointing Authority subject to the provisions of Sub-rule (2), may consider such request 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 Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
 

(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the Appointing Authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:
  

Provided that the request for withdrawal shall be made before the intended date of his retirement.
 xxx                xxx               xxx
 

There is not much material difference in the two rules extracted above. Whereas Rule 48 provides for retirement on completion of 30 years of qualifying service, Rule 48-A provides for retirement on completion of 20 years qualifying service. For retirement under Rule 48, it would appear, does not require any acceptance at all, only thing is that 3 months notice has to be given whereas for retirement under Rule 48A acceptance is required. So far as withdrawal of application is concerned, provisions are identical [See: Rule 48(2) and 48-A(4)]. The request for withdrawal must be within the intended date of retirement and must be with the specific approval of the Appointing Authority.

9. The Supreme Court had occasion to consider the scope of Rule 48-A of the CCS (Pension) Rules almost in similar situation in Balram Gupta v. Union of India, (supra). In that case the appellant who was working as an Accountant in the Photo Division, Ministry of Information and Broadcasting, Doordarshan, New Delhi and had rendered more than 20 years of service sought voluntary retirement from service by his letter dated 24.12.1980. By an order dated 20.1.1981 the respondents allowed the Government servant to retire voluntarily from service prospectively with effect from the afternoon of. 31.3.1981. However, the appellant therein by his letter dated 31.1.1981 withdrew his notice of voluntary retirement. He had stated in the said letter that he had dropped the idea of seeking voluntary retirement on account of persistent and personal request from the staff members, changed his mind and sought to withdraw his notice of voluntary retirement. The request for withdrawal was not granted. He was relieved by an order dated 31.3.1981. It was contended by the appellant before the authority and the High Court that in view of his letter dated 31.1.1981 seeking withdrawal of his letter of voluntary retirement the impugned order dated 31.3.1981 retiring the applicant was illegal and invalid. The writ petition filed by the appellant was dismissed on the ground that the rule enabled the Government servant to withdraw the application for voluntary retirement only with the approval of the Government and that the approval had not been given by the Government. The High Court took the view that the rule had been complied with. The Government again considered and took a view that there is no reason to interfere with the withdrawal of resignation.

10. The Supreme Court summarized the facts in Para 8 of the judgment (page 2356) thus:

8. The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981. Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective. In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31 st March, 1981. The appropriate rule Sub-rule (4) of Rule 48-A of the Pension Rules as set out hereinbefore enjoins that a Government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done. The approval of the authority was, however, not given. Therefore, 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 because here the Government servant cannot withdraw except with the approval of such authority.

Thereafter, it was observed in Paragraph 12 of the judgment as follows:

12. In this case the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people’s choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant’s offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant.

The Court then held in Para 13 thus:

13. We hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty, a certain amount of flexibility is required and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The Court cannot but condemn circuitous ways “to ease out” uncomfortable employees. As a model employer the Government must conduct itself with high probity and candour with its employees.

11. In Chanel Mal Chayal v. Union of India (supra), relied on by the respondents appellant therein a Reader/Court Master in the Magistrate Court, in order to contest for election tendered his resignation on 27.1.1990 which was accepted on 28.1.1990 and he was relieved from the post on 29.1.1990. The appellant by the petition dated 12.2.1990 before the District Judge sought for retaining him in the post. The said application was rejected. Pursuant to a direction in a writ petition, an enquiry was conducted and finally Government rejected the claim for re-employment. The writ petition filed against the same was allowed by the Single Bench but the same was set aside by the Division Bench. In appeal the Supreme Court observed that “By now it is a well settled principle of law that an incumbent is entitled to withdraw his resignation before the acceptance. Once his resignation is accepted there is no jural relationship between the employee and the employer and the employee cannot claim for withdrawal of the resignation nor reinstatement in the post”. The appeal filed by the Government servant was dismissed.

12. Now coming to the present case, the applicant had submitted request for voluntary retirement in his representation dated 15.7.2005 supplemented by his letter dated 24.8.2005. The 2nd respondent did not consider the change in the due date for voluntary retirement shown in the letter dated 24.8.2005 as per which the due date for retirement is 16.9.2005. The 2nd respondent accepted the request only with reference to the representation dated 15.7.2005 in which the due date was shown as 1.9.2005. If the letter dated 24.8.2005 submitted by the applicant pursuant to the query made by the respondents had also been taken into account the position is that the due date of voluntary retirement sought was only 16.9.2005 as against the date 1.9.2005 shown in the representation dated 15.7.2005. Admittedly, the applicant had made a representation dated 12.9.2005 seeking for withholding the voluntary retirement application. The respondents have not denied the receipt of the letter dated 24.8.2005 and the representation dated 12.9.2005. They in fact admitted the receipt of those communications. Even according to the respondents the Competent Authority had issued the order accepting the voluntary retirement effective from 1.9.2005 only on 16.9.2005. If the due date for voluntary retirement mentioned in the representation dated 24.8.2005 was 16.9.2005 in modification of the date shown in the application dated 15.7.2005 then acceptance of the request for voluntary retirement from an anterior date is illegal and unjustified. In that view of the matter, notwithstanding the fact that the request for voluntary retirement with reference to application dated 15.7.2005 was accepted with effect from 1.9.2005 the 2nd respondent was duty bound to reconsider the order dated 6.9.2005 accepting the voluntary retirement with effect from 1.9.2005 and to consider the representation dated 12.9.2005 as provided under Rule 48(2)/Rule 48(4) of the Pension Rules and to take a decision thereon taking into account the reasons stated in the voluntary retirement application and also in the withholding application. Though it is slated that the 2nd respondent had considered the reasons stated, from the orders it could be seen that the view taken by the 2nd respondent is that the voluntary retirement application dated 15.7.2005 has been accepted in the order dated 6.9.2005 and therefore there is no occasion for considering the withdrawal application. We also find that even with regard to the reasons for the withdrawal/withholding it is simply stated that it is not acceptable. Under what circumstances it is not acceptable has not been stated in any of the orders; it is available only in the reply filed by the respondents. We find that in Paragraph-8 in reply to Paragraph-4(c) of the O.A., the stand taken by the respondents is to the effect that the assurance given by the immediate superior of the applicant, namely the News Editor is not binding on the respondents and that the respondents are not proposing to make any changes based on the assurance given by the subordinate. The fact that the News Editor had given the assurance and had also stated that the applicant is an asset to the organization and that it is necessary to retain the applicant in service to use his professional skills is undisputed. From this it is clear that going by the reasons given in the letter dated 24.8.2005 and in the note dated 9.9.2005 (Annexure-A6) there are valid circumstances for the applicant to change his mind with the expectation, that the respondents, keeping in mind the provisions of Article 51A(j) of the Constitution of India, would certainly consider the improvement of the infrastructural facility to enable the applicant to have a creative and intellectual involvement in the matter. If the applicant has believed the assurances given by his superior officer that an improved situation will be created for the applicant to work in an efficient manner and had changed his mind, we are at a loss to understand the circumstances under which the 2nd respondent has taken a view that the reasons staled by the applicant are not satisfactory. The respondents in the reply also has not brought out any circumstances to show that the applicant is an undesirable man in the service of All India Radio and this is an occasion for sending him out. Article 51A(j) of the Constitution of India provides that it shall be the duty of every citizen of India “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement”. The not of the in-charge, RNU, Bangalore in this regard is telling which reads thus:

The undersigned had discussions with Sri R.K. Divakara, Sr. NRT, regarding his voluntary retirement. It is understood from the discussion that the reason behind his application for voluntary retirement is the lack of structural support for innovations in our bulletins. Hence the undersigned assured Shri R.K. Divakara to improve the structural support system and the infrastructure and also will work hard to bring about more professionalism in our bulletins with the positive support from the Station Director, All India Radio. With my assurance Shri R.K. Divakara has agreed to reconsider his decision for voluntary retirement. The undersigned also feels that Shri Divakara is an asset to the organization and we must retain him to use his professional skills. Therefore, Station Director is requested to advice him accordingly and not to relieve him till RNU gives clearance.

This communication dated 9.9.2005 will speak volumes about the reason for the change of mind of the applicant and the submission of the letter dated 12.9.2005.

13. The legal position emerged from the decisions of the Supreme Court discussed earlier is that unless there is a statutory bar a Government servant who has submitted application for voluntary retirement from service from a particular date, if there is good reasons therefor, can withdraw the said application at any time prior to the expiry of the due date of voluntary retirement. It is a right of the Government servant. Whether any riders can be imposed on such right was mooted but not decided. Rule 48(2)/Rule 48-A(4) prevents withdrawal of the request for voluntary retirements except with the specific approval of the Competent Authority. Regarding this provision the Supreme Court in Balram Gupta’s case supra observed thus:

…for the purpose of appeal we do not propose to consider the question whether Sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the Government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This not an unreasonable reason…

14. It must be noted that the reasons stated for withholding the request for voluntary retirement in the present case are much more forceful and acceptable than the reasons found favour with in Balaram Gupta’s case supra. The matters stated in Annexure-R6 produced by the respondents themselves are proof positive of the genuineness of the reasons stated for withholding the request for voluntary retirement. Any ideal employer, in the above circumstances, would have only welcomed it. Thus if the request for withholding/withdrawal of the request for voluntary retirement is made after the acceptance and after expiry of the due date, definitely, by virtue of the decisions of Supreme Court discussed earlier, there is no case for the appellant. However, in the present case that is not the position. The due date for retirement sought by the applicant as admitted by the respondents by producing the letter dated 24.8.2005 (Annexure-R4) was 16.9.2006. The applicant, after assigning the reason for voluntary retirement, in clear terms, had requested to permit him to retire from service voluntarily effective from 16.9.2005 with duly eligible retirement benefits. The applicant had submitted the request for withdrawal/withholding of the request for voluntary retirement on 12.9.2006 (Annexure-R7) four days before the due date. It is seen from Annexure-R7 itself that the 3rd respondent had received the withdrawal application on 12.9.2005 and had immediately forwarded the same to the 2nd respondent for necessary action. In such circumstances the 2nd respondent ought to have considered the said request with reference to Rules 48(2)/48(a)(4) notwithstanding the fact that the request for voluntary retirement was erroneously accepted with effect from 1.9.2005. We find from the orders produced that there was no such consideration all. The orders only sought to maintain the order dated 6.9.2005 accepting the voluntary retirement with effect from 1.9.2005. It is well known that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. A statutory authority, when it acts in terms of a statute is bound by its action. It cannot supplement or supplant the reason later on by way of affidavit [See: Mahinder Singh Gill v. Chief Election Commissioner and N.G. Joshi v. Commissioner, Municipal Corporation of Kalyan ]. As already noted no reasons have been stated in the impugned order. We have noted the reasons stated by the respondents in their reply that they have no idea of improving the structural support system and the infrastructure. We feel that the 2nd respondent did not take the matter in the right spirit. The question is whether the applicant has reasons to change his mind whether the 2nd respondent proposes to improve the situation or not. The applicant has clearly stated that after seeking the voluntary retirement by stating reasons later a request for withdrawing the application for voluntary retirement was made stating reasons supported by the note Annexure R6 produced by the respondents. Here we note that there was some confusion regarding the due date for voluntary retirement sought for by the applicant in Annexure-A3. However, the position was made so clear by the respondents by producing the communication dated 24.8.2005 (Annexure-R4). The date of retirement sought for is 16.9.2005 and not 1.9.2005. The two documents (Annexures-R4 and R6) are enough for us to apply the decision of the Supreme Court in Balram Gupta’s case and to hold that the decisions of the respondents which are impugned in this O.A. cannot be sustained.

15. Notwithstanding the acceptance of the request for voluntary retirement with effect from 1.9.2005 since the due date for retirement specified in the letter dated 24.8.2005 was only 16.9.2005 which date cannot be unilaterally altered by the 2nd respondent and since the applicant had requested for withholding the request for voluntary retirement on 12.9.2005, though the said request may not strictly fall within the purview of the provisions of Rules 48(2)/48-A(4) which contemplated only a case of withdrawal of the request for voluntary retirement, in view of the matters stated in the note of the News Editor (Annexure-R6) the 2nd respondent, as a model employer, ought to have considered the case of the applicant in the right spirit and taken a decision in the matter. Here, it is also relevant to note that the applicant was allowed to continue in service til 26.6.2006 and he was relieved only on 27.6.2006. The respondents did not have a case that the applicant is a dead wood to be weeded out or an uncomfortable employee to be eased out from service. We are reminded of the observation of the Supreme Court in Balram Gupta’s case that “As a model employer, the Government must conduct itself with high probity and candour with its employees.”

16. It is also relevant to note the circumstances stated by the Supreme Court in Balram Gupta’s case Para 12 already extracted viz., alternate arrangements is not made in the present case. To a specific query the Senior Central Government Standing Counsel after consultation with the officer of the respondents submitted that no alternate arrangements have been made yet and that post held by the applicant is still vacant.

17. We have also stated that the applicant has given the reason for the change of mind and this is substantiated by the note of the News Editor (Annexure-R6). Para 13 of the judgment of the Supreme Court which we have extracted earlier comes in to play. The 2nd respondent has also to keep in mind the observation of the Supreme Court in Balram Gupta’s case “The approving authority who has the statutory authority must act reasonably and rationally”, that the reason sufficiently indicated was that he was prevailed upon by his friends and the appellant had a second look at the matter. It was observed that this is not an unreasonable reason.

18. One more important matter brought out by the applicant is that the provisions of Rules 48/48-A of the Pension Rules prescribes a specific procedure for dealing with a situation where minimum notice period of 3 months has to be relaxed, which has not been complied with. We find that proviso to Sub-rule (a) of Rule 48(1) and Rules 48(1A)/48-A(2) proviso and Sub-rule (3-A) of Rule 48-A clearly provide a procedure for relaxing the requirement of notice subject to mandatory conditions specified therein. The order of acceptance of the voluntary retirement dated 6.9.2005 suffers from the vice of non-compliance of the said provisions. The applicant had neither made any request for relaxation nor was it considered by the Competent Authority before passing the order as is evident from the fact that no condition is imposed.

19. It is further noted that strictly speaking, the request for withholding the application for voluntary retirement is that there is no need for considering the said application at all from the date of such request. However, since the effect of withholding the request is that it has to be reviewed by a subsequent application particularly specifying the due date for voluntary retirement, the expression ‘withhold’ has the effect of withdrawing the request.

20. Taking into account all the relevant facts and circumstances of the case we are of the view that this is an eminently fit case for the 2nd respondent to consider and pass appropriate orders on the request dated 12.9.2005 submitted before the due date of voluntary retirement i.e., 16.9.2005 in accordance with law and in the light of the observations made in this order within two months from the date of receipt of this order and report compliance within one month thereafter.

21. The O.A. is disposed of as above. In the circumstances of the case the parlies will bear their respective costs.

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