{"id":40706,"date":"2007-10-29T00:00:00","date_gmt":"2007-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kishore-kumar-vyas-vs-daganiya-raipur-on-29-october-2007"},"modified":"2018-02-02T10:14:58","modified_gmt":"2018-02-02T04:44:58","slug":"kishore-kumar-vyas-vs-daganiya-raipur-on-29-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kishore-kumar-vyas-vs-daganiya-raipur-on-29-october-2007","title":{"rendered":"Kishore Kumar Vyas vs Daganiya Raipur on 29 October, 2007"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Kishore Kumar Vyas vs Daganiya Raipur on 29 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n         IN THE HIGH COURT OF CHATTISGARH AT BILASPUR        \n\n        WP No 5682 of 2005\n\n        Kishore Kumar Vyas\n\n                            ...Petitioner\n\n                               VERSUS\n\n        1 State of Chhattisgarh\n\n        2 CG State Electricity Board\n\n        3 Secretary CG State Electricity Board\n\n          Daganiya Raipur\n\n                            ...Respondents\n\n!       Shri Jitendra Pali counsel for the petitioner\n\n^       1 Shri Vinay Harit Deputy Advocate General\n\n        for the respondent No 1 State\n\n        2 Shri A S Gaharwar counsel for the\n\n        respondents No 2 and 3\n       \n        Honble Mr Satish K Agnihotri J\n\n        Dated: 29\/10\/2007\n\n:       Order\n\n\n        (Writ Petition under Article 226\/227   of the\n\n                Constitution of India.)\n\n\n\n                         ORDER\n<\/pre>\n
           (Passed on  29th  October, 2007)<\/p>\n
                By this petition, the petitioner seeks a writ of<\/p>\n
certiorari  to quash the impugned order  dated  19-9-<\/p>\n
2005,    whereby  the application of  the  petitioner<\/p>\n
to   retire      voluntarily   from   services   with<\/p>\n
effect from 31-10-2005, was granted, despite the fact<\/p>\n
that  the  petitioner  had by his  subsequent  letter<\/p>\n
dated  8-9-2005 requested the respondents\/authorities<\/p>\n
to withdraw his application dated 30-7-2005.<\/p>\n
2)    The  indisputable  facts, which  are  in  narrow<\/p>\n
compass,  are that the petitioner, who was working  as<\/p>\n
Chief  Engineer  (Generation)  in  Chhattisgarh  State<\/p>\n
Electricity Board (hereinafter referred to as  CSEB”),<\/p>\n
made an application on 30-7-2005 (Annexure P\/1) to the<\/p>\n
respondents\/Board requesting for voluntary  retirement<\/p>\n
from services   with   effect from 31-10-2005.  On 8-9-<\/p>\n
2005   the  petitioner  submitted  second  application<\/p>\n
(Annexure  P\/2)  seeking  withdrawal  of  the  earlier<\/p>\n
application  dated  30-7-2005 (Annexure  P\/1)  on  the<\/p>\n
ground  that his health has improved and he  would  be<\/p>\n
able  to  serve  very  soon.    The  respondents\/Board<\/p>\n
accepted the application   of   the petitioner   dated<\/p>\n
30-7-2005  (Annexure P\/1)    on 19-9-2005,  permitting<\/p>\n
the  petitioner  to retire voluntarily  from  services<\/p>\n
with   effect   from  31-10-2005.    The   petitioner,<\/p>\n
thereafter, again made two representations dated 25-10-<\/p>\n
2005  (Annexure  P\/4)  and  5-11-2005  (Annexure  P\/5)<\/p>\n
requesting the respondents\/Board to cancel  the  order<\/p>\n
dated  19-9-2005  in view of the fact  that  prior  to<\/p>\n
acceptance of his application for voluntary retirement<\/p>\n
from  services; the petitioner had withdrawn the  same<\/p>\n
on 8-9-2005.\n<\/p>\n<\/p>\n
3)   Shri Jitendra Pali, learned counsel appearing for<\/p>\n
the  petitioner submits that it is well  settled  that<\/p>\n
before the application for voluntary retirement  comes<\/p>\n
into effect, an employee is at liberty to withdraw the<\/p>\n
same.  In the facts situation of the case, before  the<\/p>\n
application   dated   30-7-2005   (Annexure-P\/1)   was<\/p>\n
allegedly  accepted on 19-9-2005, the  petitioner  had<\/p>\n
made  an  application  on 8-9-2005  to  withdraw   the<\/p>\n
earlier application dated 30-7-2005.  Thus, the  order<\/p>\n
dated 19-9-2005 impugned herein is contrary to law and<\/p>\n
deserves to be quashed.\n<\/p>\n<\/p>\n
4)    Per  contra, Shri A.S. Gaharwar, learned counsel<\/p>\n
appearing   for the respondents No. 2 and 3 relies  on<\/p>\n
Clause 6 of the Voluntary Retirement Regulations, 1989<\/p>\n
(hereinafter,  referred to as “the  Regulations”),  in<\/p>\n
support   of  his contention that under the provisions<\/p>\n
of  the Regulations, once the petitioner has exercised<\/p>\n
his option for voluntary retirement, the same shall be<\/p>\n
final  and  the petitioner would not be  permitted  to<\/p>\n
make  second application for withdrawal of the earlier<\/p>\n
application for voluntary retirement.      He  further<\/p>\n
contended  that  the letter dated 30-7-2005  (Annexure<\/p>\n
P\/1) was accepted before the subsequent letter dated 8-<\/p>\n
9-2005  (Annexure P\/2) for withdrawal of  the  earlier<\/p>\n
application  dated 30-7-2005 (Annexure  P\/1)  on  6-9-<\/p>\n
2005.   He  has  produced record  and  proceedings  in<\/p>\n
support of his contention.\n<\/p>\n<\/p>\n
5)    I  have  heard learned counsel for the  parties,<\/p>\n
perused  the pleadings and documents appended thereto. <\/p>\n
It  is evident that the petitioner made an application<\/p>\n
for  voluntary retirement on 30-7-2005 (Annexure  P\/1)<\/p>\n
which  was made effective from 31-10-2005, thereafter;<\/p>\n
he made second application on 8-9-2005 withdrawing the <\/p>\n
first application.  The respondents\/Board accepted the<\/p>\n
application of the petitioner for voluntary retirement<\/p>\n
on 19-9-2005.\n<\/p>\n<\/p>\n
6)    The issue involved in this petition is no longer<\/p>\n
res  integra.   Clauses  3  and  6  of  the  Voluntary<\/p>\n
Retirement Regulations, 1989 read as under:<\/p>\n
       “3. (i) All permanent employees (class I,
\n       II,  III  &  IV)  who have  completed  15
\n       years,  continuous qualifying service  or
\n       more  shall have an option for  voluntary
\n       retirement before they attain the  normal
\n       age  of  superannuation by  giving  three
\n       months    notice   to   the    appointing
\n       authority.\n<\/p><\/blockquote>\n
       (ii) It shall be open to the Board either to accept or
\n       reject the option exercised by an employee under
\n       regulation 3(i) in individual cases.\n<\/p><\/blockquote>\n
       (iii)     The weightage upto 5 years will be added to
\n       the qualifying service of the employee who is retired
\n       voluntarily provided that<\/p>\n<\/blockquote>\n
       (a)  the total qualifying service including weightage
\n       does not exceed thirty three years;\n<\/p><\/blockquote>\n
(b)  the period does not go beyond the date of normal
\nsuperannuation; and <\/p>\n
       (c)  the weightage is used only for the purpose of
\n       reckoning qualifying service for pension\/gratuity and
\n       does not confer any other benefit like notional
\n       increase in pay etc.<\/p>\n
       6.   An option once exercised under these
\n       regulations,   shall   be   final.    Any
\n       defective or ambiguous exercise of option
\n       under   these   Regulations   shall    be
\n       considered  as an exercise of option  for
\n       the purpose of these Regulations”.\n<\/p>\n
7)    In the matter of Balram Gupta Vs Union of India<\/p>\n
and another1, Hon’ble the Supreme Court has held that<\/p>\n
the  normal rule which prevails in certain cases that<\/p>\n
a  person can withdraw his resignation before  it  is<\/p>\n
effective would not apply in full force to a case  of<\/p>\n
this  nature  where  the  government  servant  cannot<\/p>\n
withdraw  under  the provisions of the  Rules  except<\/p>\n
with approval of such authority.\n<\/p>\n
8)   In the matter of Power Finance Corporation Ltd.,<\/p>\n
Vs.  Pramod Kumar Bhatia,2 Hon’ble the Supreme  Court  <\/p>\n
has observed as under:\n<\/p>\n
          “7.      It   is  now  settled   legal
\n_______________________________
\n          position  that unless the employee  is
\n          relieved of the duty, after acceptance
\n          of  the  offer of voluntary retirement
\n          or  resignation, jural relationship of
\n          the employee and the employer does not
\n          come  to  an  end.   Since  the  order
\n          accepting the voluntary retirement was
\n          a   conditional  one,  the  conditions
\n          ought  to  have  been  complied  with.\n<\/p>\n
          Before   the   conditions   could   be
\n          complied  with, the appellant withdrew
\n          the  scheme.   Consequently, the order
\n          accepting voluntary retirement did not
\n          become  effective.  Thereby no  vested
\n          right  has  been created in favour  of
\n          the   respondent.   The  High   Court,
\n          therefore,  was not right  in  holding
\n          that  the  respondent has  acquired  a
\n          vested   right  and,  therefore,   the
\n          appellant has no right to withdraw the
\n          scheme subsequently.”\n<\/p>\n
9)    In  the  matter of Srikantha S.M,  Vs.  Bharath<\/p>\n
Earth  Movers  Ltd,  Hon’ble the  Supreme  Court  has<\/p>\n
observed at paras No. 25 and 26 which read as under:<\/p>\n
          “25.  In  Shambhu  Murari  Sinha   Vs.
\n          Project  and  Development India  Ltd.,
\n          (Shambhu  Murari Sinha II),  the  view
\n          taken in Shambhu  Murari Sinha I,  was
\n          reiterated.   It  was held  that  when
\n          voluntary retirement was withdrawn  by
\n          an employee, he continued to remain in
\n          service.  The relationship of employer
\n          and  employee did not come to  an  end
\n          and the employee had locus penitentiae
\n          to withdraw his proposal for voluntary
\n          retirement.     He   was,   therefore,
\n          entitled  to  rejoin  duty   and   the
\n          Corporation was bound to allow him  to
\n          work.\n<\/p><\/blockquote>\n
          26.   On   the  basis  of  the   above
\n          decisions, in our opinion, the learned
\n          counsel for the appellant is right  in
\n          contending  that though the respondent
\n          Company  had  accepted the resignation
\n          of  the appellant on 4-1-1993 and  was
\n          ordered to be relieved on that day, by
\n          a  subsequent letter, he  was  granted
\n          casual  leave from 5-1-1993  to  13-1-
\n          1993.  Moreover, he was informed  that
\n          he  would  be  relieved  after  office
\n          hours   on  15-1-1993.   The  vinculum
\n          juris,  therefore, in  our  considered
\n          opinion,     continued     and     the
\n          relationship of employer and  employee
\n          did  not  come to an end on  4-1-1993.
\n          The  relieving  order and  payment  of
\n          salary  also make it abundantly  clear
\n          that  he  was continued in service  of
\n          the Company up to 15-1-1993.”\n<\/p><\/blockquote>\n
10)   In  the matter of HEC Voluntary Retd. Employees<\/p>\n
Welfare  Society  and another Vs.  Heavy  Engineering<\/p>\n
Corporation  Ltd., and others, Hon’ble Supreme  Court<\/p>\n
held  that  unless  a statute or statutory  provision<\/p>\n
interdicts, the relationship between the  parties  to<\/p>\n
act  pursuant  to or in furtherance of the  voluntary<\/p>\n
retirement scheme is governed by contract.<\/p>\n
11)   In the matter of Ashok Kumar Sahu Vs. Union  of<\/p>\n
India  and others, Hon’ble Supreme Court has  divided<\/p>\n
the  cases of voluntary retirement broadly into three<\/p>\n
categories  as under:\n<\/p>\n
          “29. Cases of voluntary retirement can
\n          broadly  be divided into the following
\n          three categories:\n<\/p><\/blockquote>\n
          (i)  where voluntary retirement is automatic and comes
\n          into force on the expiry of notice period;\n<\/p><\/blockquote>\n
          (ii) when it comes into force, unless an order is
\n          passed within the notice period withholding permission
\n          to retire; and<\/p>\n<\/blockquote>\n
          (iii)      When voluntary retirement does not come
\n          into force unless permission to this effect is
\n          specifically granted by the controlling authority.\n<\/p><\/blockquote>\n
          32.  We may observe that an appropriate order should
\n          be passed within a reasonable period.  Normally, three
\n          months’ notice is required to be given as the said
\n          period is considered to be reasonable and it is
\n          expected that a decision would be taken within the
\n          said period.  But the rule is not an inflexible one.
\n          It would depend upon the facts and circumstances of
\n          each case.”\n<\/p><\/blockquote>\n
12)   In  the  matter  of Union of  India  Vs.  Gopal<\/p>\n
Chandra  Misra, the constitution Bench of the Hon’ble<\/p>\n
Supreme Court has observed at para 50 which reads  as <\/p>\n
under:\n<\/p>\n
          “50. It will bear repetition that  the
\n          general  principle  is  that  in   the
\n          absence  of  a  legal, contractual  or
\n          constitutional  bar,  a  `prospective’
\n          resignation  can be withdrawn  at  any
\n          time before it becomes effective,  and
\n          it  becomes effective when it operates
\n          to  terminate  the employment  or  the
\n          office -tenure of the resignor.   This
\n          general rule is equally applicable  to
\n          Government servants and constitutional
\n          functionaries.   In  the  case  of   a
\n          Government  servant\/or functionary\/who
\n          cannot,  under the conditions  of  his
\n          service\/or   office,   by   his    own
\n          unilateral     act    of     tendering
\n          resignation,  give up  his  service\/or
\n          office,   normally,  the   tender   of
\n          resignation becomes effective and  his
\n          service\/or  office-tenure  terminated,
\n          when  it  is accepted by the competent
\n          authority.  In the case of a Judge  of
\n          a  High Court, who is a constitutional
\n          functionary and under proviso  (a)  to
\n          Article 217 (1) has a unilateral right
\n          or  privilege  to resign  his  office,
\n          his  resignation becomes effective and
\n          tenure  terminated on  the  date  from
\n          which he, of his own volition, chooses
\n          to  quit office.  If in terms  of  the
\n          writing  under his hand  addressed  to
\n          the    President,   he   resigns    in
\n          praesenti,  the resignation terminates
\n          his   office-tenure   forthwith,   and
\n          cannot  therefore,  be  withdrawn   or
\n          revoked  thereafter.  But,  if  he  by
\n          such writing, chooses to resign from a
\n          future  date,  the  act  of  resigning
\n          office is not complete because it does
\n          not  terminate his tenure before  such
\n          date  and  the Judge can at  any  time
\n          before the arrival of that prospective
\n          date  on which it was intended  to  be
\n          effective,  withdraw it,  because  the
\n          Constitution   does   not   bar   such
\n          withdrawal.”\n<\/p><\/blockquote>\n
13)   In the matter of Union of India and another Vs.<\/p>\n
Wing  Commander  T.  Parthasarathy,  Hon’ble  Supreme  <\/p>\n
Court has observed at para 8 which reads as under:<\/p>\n
          “8.  So  far as the case in  hand  is
\n          concerned, nothing in the form of any
\n          statutory rules or any provisions  of
\n          any  Act  has  been  brought  to  our
\n          notice  which could be said to impede
\n          or deny this right of the appellants.<\/p><\/blockquote>\n
          On  the  other  hand,  not  only  the
\n          acceptance  of  the  request  by  the
\n          headquarters,     the     appropriate
\n          authority, was said to have been made
\n          only  on  20-2-1986, a day after  the
\n          respondent  withdrew his request  for
\n          premature  retirement but  even  such
\n          acceptance  in this case  was  to  be
\n          effective  from a future date  namely
\n          31-8-1986,   Consequently,  it  could
\n          not  be legitimately contended by the
\n          appellants   that   there   was   any
\n          cessation  of  the  relationship   of
\n          master   and   servant  between   the
\n          Department  and the respondent at any
\n          rate before 31-8-1986.  While that be
\n          the     position    inevitably    the
\n          respondent  had  a  right   and   was
\n          entitled  to withdraw or  revoke  his
\n          request  earlier made before it  ever
\n          really    and   effectively    became
\n          effective.”\n<\/p><\/blockquote>\n
14)   Clause  3 of the Regulations provides  for  the<\/p>\n
employees to opt for voluntary retirement before they<\/p>\n
attain  the  age  of superannuation by  giving  three<\/p>\n
months notice to the appointing authority.  Clause  6<\/p>\n
of the Regulations provides that once option has been<\/p>\n
exercised  under the Regulations, the same  shall  be<\/p>\n
final.  Any defective or ambiguous exercise of option<\/p>\n
under  these  Regulations shall be considered  as  an<\/p>\n
exercise   of  option  for  the  purpose   of   these<\/p>\n
Regulations.\n<\/p>\n
15)   The  petitioner made an application  expressing<\/p>\n
his  desire to take voluntary retirement giving three<\/p>\n
months notice from the date of application  on  30-7-<\/p>\n
2005  to make it effective from 31-10-2005.  Exercise<\/p>\n
of option cannot be held as complete  on 30-7-2005 as<\/p>\n
the  petitioner has requested for permitting  him  to<\/p>\n
take  voluntary  retirement with effect  from  31-10-<\/p>\n
2005.   Thus, it cannot be held that the  process  of<\/p>\n
exercise  of  option  is complete before  31-10-2005.<\/p>\n
The  “exercise of an option” has been defined  in  P.<\/p>\n
Ramanatha   Aiyar’s   Advanced  Law   Lexicon,    3rd<\/p>\n
Edition, 2005 (page – 1711)  as under:<\/p>\n
          “Exercise  of an option – Exercise  of
\n          an option means enforcing the right by
\n          the  buyer\/holder available under  the
\n          option  contract of buying or  selling
\n          the  underlying asset  at  the  Strike
\n          Price.”\n<\/p><\/blockquote>\n
16)   The jural relationship of the employee and  the<\/p>\n
employer  comes  to  an  end  on  31-10-2005.     The<\/p>\n
exercise  of an option becomes effective with  effect<\/p>\n
from   31-10-2005.   There  was   no   cessation   of<\/p>\n
relationship  of  master  and  servant  between   the<\/p>\n
respondent -authority and the petitioner had a  right<\/p>\n
to  revoke  his request earlier made before  it  ever<\/p>\n
really  and  effectively  became  effective  in   the<\/p>\n
present  case  i.e., 31-10-2005.  Thus, the  impugned<\/p>\n
order     dated      19-9-2005 is unjust and improper<\/p>\n
and the same deserves to be and is  quashed. <\/p>\n
17)   As  a  result, this petition  is  allowed  with<\/p>\n
consequential relief flowing from this  order.   Cost<\/p>\n
easy.\n<\/p>\n
JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Kishore Kumar Vyas vs Daganiya Raipur on 29 October, 2007 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 […]<\/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":[12,8],"tags":[],"class_list":["post-40706","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nKishore Kumar Vyas vs Daganiya Raipur on 29 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kishore-kumar-vyas-vs-daganiya-raipur-on-29-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kishore Kumar Vyas vs Daganiya Raipur on 29 October, 2007 - 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