{"id":225848,"date":"1998-11-17T00:00:00","date_gmt":"1998-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-s-sokhanda-vs-union-of-india-ors-on-17-november-1998"},"modified":"2015-05-19T17:40:15","modified_gmt":"2015-05-19T12:10:15","slug":"m-s-sokhanda-vs-union-of-india-ors-on-17-november-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-s-sokhanda-vs-union-of-india-ors-on-17-november-1998","title":{"rendered":"M.S. Sokhanda vs Union Of India & Ors. on 17 November, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
M.S. Sokhanda vs Union Of India & Ors. on 17 November, 1998<\/div>\n
Equivalent citations: 1999 IIAD Delhi 546, 78 (1999) DLT 68<\/div>\n
Author: A Kumar<\/div>\n
Bench: A Kumar, M Sarin<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT <\/p>\n
Arun Kumar, J. <\/p>\n
1.      The petitioner was holding the post of Joint Secretary in the Ministry of defense. On 24th April, 1998 he applied for seeking voluntary retirement under Rule 48 of the CCS (Pension) Rules, 1972 w.e.f. 16th May, 1998 (F\/N). The  request  of the petitioner for voluntary retirement w.e.f.  16th  May, 1998 was accepted by the Government on 8th May, 1998. On 12th May, 1998 the Government announced its decision to enhance the retirement age of  Govern-ment  servants from fifty eight years to sixty years. On the same  day  the petitioner applied seeking permission to withdraw his request for voluntary retirement.  The request of the petitioner for permission to  withdraw  his notice  of voluntary retirement was rejected on 16th May, 1998.  The  petitioner  challenged the said rejection through an application  filed  before the Central Administrative Tribunal on 19th May, 1998. The Tribunal by  its impugned  judgment dated 16th July, 1998 dismissed the application  of  the petitioner.  The petitioner has fled the present petition challenging  the said decision of the Tribunal.\n<\/p>\n
 2.   The short point for consideration in the present case is the  validity of  the decision of the Government rejecting the request of the  petitioner to  permit him to withdraw his notice of voluntary retirement. The  learned Counsel for the petitioner has relied on a judgment of the Supreme Court in Balram  Gupta Vs. Union of India, . In the said  case,  the Supreme Court had occasion to consider the validity of the decision of  the Government  in  refusing the request for permission to withdraw  notice  of voluntary  retirement. The only ground given by the petitioner in the  said case  for seeking permission to withdraw his request for voluntary  retirement  was  “on account of persistent and personal requests from  the  staff members,  the  appellant had changed his mind and consequently had  by  his letter  dated 31st January, 1981 withdrawn his notice of voluntary  retirement”.  The request for withdrawal of notice of voluntary  retirement  was rejected by the Government and the officer was relieved from his post.  The petitioner  challenged  the decision of the Government. The  Supreme  Court observed: “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 that the appellant  had not indicated his reasons for withdrawal. This, in our opinion, sufficiently  indicated that he was prevailed upon by his friends and  the  appellant had  a second look at the matter. This is not an unreasonable  reason.  The guidelines for purposes of arriving at a decision in such matters are:\n<\/p>\n
   \"(2) A question has been raised whether a Government servant  who      has given to the Appropriate Authority notice of retirement under the  para 2(2) above has any right subsequently (but  during  the currency of the notice) to withdraw the same and return to  duty. The  question  has been considered carefully and  the  conclusion reached  is that the Government servant has no such right.  There would, however, be no objection to permission being given to such a  Government servant, on consideration of the  circumstances  of  his case to withdraw the notice given by him, but ordinarily such permission  should not be granted unless he 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.  \n \n\n      Where  the notice of retirement has been served by Government  on the  Government  servant, it may be withdrawn if so  desired  for adequate  reasons, provided the Government servant  concerned  is agreeable.\"   \n \n\n 3.   The  Supreme Court was clearly of the view 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. On the facts of the  case,  the Court  found that there was no valid reason for withholding  permission  by the respondents.  \n \n\n<\/pre>\n
 4.   It follows from the above decision of the Supreme Court that the  only point  for consideration before the Government in such matters ought to  be as  to  whether  there is any material change in  the  circumstances  which earlier  led  the officer to seek voluntary retirement. In  his  notice  of voluntary retirement dated 24th April, 1998, the petitioner stated that  he had  completed thirty three years of qualifying Government service and  was left with one year of service before he was to superannuate. He also stated his  intention to participate in the National mainstream and for that  purpose  he  intended to join the BJP and strengthen the hands  of  the  Prime Minister.  He  requested that the decision for being allowed to  retire  be taken  immediately in order to enable him to contest an election which  was due to be held in October\/November, 1998.\n<\/p>\n
 5.   In the notice dated 12th May, 1998 requesting for permission to  withdraw  the notice of voluntary retirement, the petitioner stated that  there had  been  a  material change in the circumstances since  his  request  for voluntary retirement because the Government had in the meanwhile decided to increase the age of superannuation for Government employees to sixty  years with  immediate  effect.  This would give him three  years  of  service  as against  less than a year of service at the time of submission  of  request for  voluntary retirement. According to the petitioner this was a  substantial  change  in the terms and conditions of service in his case.  The  increase  in  retirement age would give him certain  further  benefits.  This would also give him ample opportunity to pursue his case for promotion.  In view of this, he sought permission to withdraw notice for voluntary retirement  with immediate effect. The Central Administrative  Tribunal  rejected the application of the petitioner whereb he had challenged the  Government decision  in  refusing to grant approval to his request for  withdrawal  of notice  of  voluntary retirement. The learned Counsel  for  the  petitioner relying on the decision of the Supreme Court in Balram Gupta’s case (supra) emphasised  the fact that there had been a material change in  the  circumstances of the petitioner between the date of request of voluntary  retirement  and  the date of request for permission to withdraw  the  notice  for voluntary  retirement inasmuch as the Government had increased the  age  of retirement  by  two years. The increase in age of retirement  gave  various benefits  to  the  petitioner which amounted to a material  change  in  the circumstances.\n<\/p>\n
 6.   The  learned Counsel for the petitioner also raised a point  that  the Raksha  Mantri (defense Minister) was the Competent Authority to  take  the decision  regarding refusal of request to withdraw the notice of  voluntary retirement. According to him in the present case he had not taken the  said decision  and, therefore, the impugned order was liable to be  struck  down for that reason also. We have perused the Government records in relation to this  aspect  and we find that there is no merit in the contention  of  the learned Counsel for the petitioner in this behalf. The defense Minister had been a party to the impugned decision.\n<\/p>\n
 7.   Regarding  the main issue about the validity of the rejection  of  request for withdrawing the notice of voluntary retirement, Mr. C.S.  Vaidyanathan, the learned Addl. Solicitor General, submitted that the  petitioner had clearly given his intention to join a political party which showed that he  had compromised his neutrality which a Government servant had to  maintain  and, therefore, the Government decision in refusing his  request  was justified  and correct. He tried to distinguish Balram Gupta’s case on  the ground  that in that case, the request for voluntary retirement was as  per Rule  48A of the CCS (Pension) Rules whereas the present case  fell  within the  ambit  of Rule 48 of the said Rules. Under Rule 48A,  the  notice  for voluntary retirement itself has to be approved by the Government because it is after twenty years of qualifying service and a Government servant is not under the said Rule permitted to retire as a matter of right whereas  under Rule  48  in which the present case flls the  voluntary  retirement  after thirty  years of qualifying service is as a matter of right. We are  unable to  appreciate  the  distinction sought to be drawn by  the  learned  Addl. Solicitor  General.  In our view what is material is the  validity  of  the decision refusing to accept the request for withdrawal of notice of  voluntary  retirement and not the request for voluntary retirement  itself.  For approval  of the request for withdrawal of notice of voluntary  retirement, the  provision in both the Rules is similar. The Rules differ only  on  the question of request for voluntary retirement.\n<\/p>\n
 8.   We feel that the ratio in Balram Gupta’s case squarely applies in  the facts of the present case. This leads to examination of whether there was a material change in the circumstances of the petitioner between the dates of request  for  voluntary retirement and the request for  withdrawal  of  the request for voluntary retirement. According to the petitioner the  material change  was the Government decision in increasing the age of retirement  of Government service by two years. In our view this was a material change  in the circumstances. In Government service, two years additional service  can mean a lot to Government servants. When the petitioner gave the notice  for voluntary retirement, he was left with about one year service. The  Government  decision  to increase the age of retirement gave him  additional  two years  of service, which in our view was substantial and sufficient  reason to seek withdrawal of the request for resignation. In Balram Gupta’s  case, the only reason by way of change o circumstances given by the officer  was persistent  and personal requests from the staff members. This  reason  the Supreme Court accepted as a material change in circumstances of the Government servant. In our view the present case is on a much stronger ground  so far  as  the factor material change in the circumstances is  concerned.  In this context, it is important to note the proximity between the  Government decision  announcing increase in age of retirement and the request  of  the petitioner  for  withdrawal of his notice for  voluntary  retirement.  Both happened  the same day and in quick succession. This shows that it was  the Government decision to increase the age of retirement which really impelled the petitioner to change his mind and request the Government to permit  him to withdraw his notice of voluntary retirement. It may be that the material change  in  the  circumstances has to be objectively  considered,  yet  the subjective feeling of the officer concerned at the relevant time, as demontrated by the facts of the present case, cannot be overlooked. The proximity  between  the Government decision to increase retirement  age  and  the petitioner’s  request to withdraw his notice of voluntary retirement  shows the  state  of mind of the petitioner and what really led him to  take  the said decision.\n<\/p>\n
 9.   The learned Addl. Solicitor General has strongly tried to justify  the Government  decision on the basis of intention of the petitioner to join  a political party as disclosed in his notice for voluntary retirement. It was submitted  that in view of expression of the said mention,  the  petitioner did not deserve to be in Government service. On this aspect, we would  only like  to say that expression of an intention does not really mean that  the petitioner  has actually joined politics. Besides the expression of  intention  to  join politics has to be viewed in the context  of  the  impending retirement of the petitioner. The same cannot be made the basis of arriving at a conclusion that petitioner had compromised his neutrality,  especially in the absence of any past inclination. The petitioner is a senior  officer in  the  Government and is well aware of the Government  rules  prohibiting Government  servants from participating in political activity. We are  sure that he can maintain his neutralit so long as he is in Government service. Secondly,  if  the petitioner is found to be compromising  his  neutrality, suitable  action can be taken in accordance with Government rules.  In  our view,  the expression of intention in the letter for  voluntary  retirement ought not to have been the sole determining factor in refusal to grant  the request for withdrawal of notice of voluntary retirement.\n<\/p>\n
10.  Lastly, the learned Counsel for the respondents raised the question of scope of judicial review. According to him this Court should not review the Government  decision in rejecting the request for withdrawal  of  voluntary retirement.  According  to him, the decision has been taken  in  accordance with  law  by  way of a speaking order. The Court should not  go  into  the correctness  of the decision. As observed in Balram Gupta’s case, in  these matters  the Government decision cannot be based on the ipse dixit  of  the Government.  Rule  48  Sub-rule (2) envisages a specific  approval  of  the Appointing  Authority regarding the withdrawal of notice of  voluntary  retirement. There are guidelines on the basis of which the Government has  to take such a decision. The Government, therefore, cannot act arbitrarily  or according  to its whims and caprices. The Government decision must  satisfy the test of reasonableness. Therefore, it cannot be said that the  decision of the Government in such matters i beyond the scope of judicial review.\n<\/p>\n
 11.  The Tribunal has given certain reasons for its conclusion in  dismissing the application of the petitioner whereby he had challenged the Government  decision of rejecting the request for withdrawal of notice of  voluntary  retirement. We have considered each reason given by the Tribunal.  We are unable to agree with the reasons given by the Tribunal in its  impugned judgment.  It was not necessary for the petitioner to state in his  request for  permission to withdraw the notice of voluntary retirement that he  has changed  his  mind about entering politics or that he  was  not  contesting election. This follows by virtue of being a Government servant and need not necessarily  be explicitly stated in the request letter.  Similarly  whether the  petitioner  would  get an opportunity to contest an  election  on  his retirement after three years was too far fetched and ought not to have been a  relevant consideration. Thirdly, the Tribunal has noted that  additional two  years  service may not from a prctical point of view make much  of  a difference  in the amount of pension. This again is something which in  our view  the  Tribunal even need not have mentioned. Two years service  for  a Government servant means a lot of other benefits and not merely the benefit of increase in rate of pension. Even if this may not make any difference in the  rate at which he will get pension after retirement, further two  years Government  service is a very important factor. The fourth reason given  by the  Tribunal  is  the petitioner’s mention in the  request  of  withdrawal letter  that  he would get further time to pursue his case  for  promotion. This  again  is  a totally irrelevant consideration. The  main  factor  for consideration was the additional two years Government service which in  our view was a material change in the circumstances.\n<\/p>\n
 12.  For  all  these reasons, this writ petition is allowed.  The  impugned judgment of the Tribunal is set aside. The Government decision in  refusing to  approve the request of the petitioner for withdrawal of his notice  for voluntary retirement is quashed. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M.S. Sokhanda vs Union Of India & Ors. on 17 November, 1998 Equivalent citations: 1999 IIAD Delhi 546, 78 (1999) DLT 68 Author: A Kumar Bench: A Kumar, M Sarin JUDGMENT Arun Kumar, J. 1. The petitioner was holding the post of Joint Secretary in the Ministry of defense. On 24th April, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-225848","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM.S. 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