CW 1892/09 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1892/2009 Smt. Suresh Kumari Sharma Versus State & Ors. Date of Order ::: 27/08/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. NK Singhal, for petitioner Ms Pryanka Pareek, Dy. Govt. Counsel for respondents Matter has come upon application (No. 17467/dt.02/08/2010) seeking interim relief. At joint request, matter has been heard finally at this stage. Instant petition has been filed with the grievance that despite statutory period of three months of seeking voluntary retirement as provided U/r 50(1) of Rajasthan Civil Service (Pension) Rules, 1996 ("Pension Rules") having expired, yet benefit of retiral dues on being retired from service w.e.f. 03/10/2008 has not been granted to her so far. Petitioner was initially appointed as Teacher Gr.III on 06/09/1975; however, later on was promoted as Head Mistress and posted in Govt. Upper Primary School, Malipura, Bayana (Bharatpur). Looking to family circumstances, petitioner submitted application (Ann.1) on 02/07/2008 seeking voluntary retirement on expiry of three months w.e.f. 02/10/2008, duly supported by an affidavit/declaration that no disciplinary inquiry was pending against her. CW 1892/09 //2// Even on 01/10/2008, no due dues certificate was granted to her by institution; and that apart, she submitted application (Ann.4) on 03/10/2008 that since three months period having expired, she stood retired from service w.e.f. 02/10/2008; therefore, her retiral dues admissible under pension rules be released; but no action was taken by respondents to release her retiral benefits. Hence instant petition. In the reply, respondents averred that charge sheet was sent to the petitioner for alleged absence period from 29/07/1998 to 10/09/2002 (Ann.R/1); at the same time, it has also been averred that her request seeking voluntary retirement was declined vide communication dt.26/09/2008; and only material on which respondents have basically placed reliance was of her absence for the period from 26/09/1998 to 10/09/2002 without getting any leave sanctioned; and that apart, her request was declined before three months having expired; as such petitioner cannot be said to be justified in seeking voluntary retirement, as prayed for. Counsel for petitioner submits that in terms of provisions contained in R.50(1) of Pension Rules, petitioner stood retired from service upon expiry of three months of her application dt.02/07/2008 and the disciplinary CW 1892/09 //3// inquiry initiated against her thereafter under Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ("CCA Rules") while no disciplinary action could have been initiated against her after expiry of statutory period of three months under CCA Rules. Counsel further submits that R.50 of Pension Rules, 1996 confers a right on the employer as well as employee in the matter of retirement; however, employer can retire a government servant by giving him three months' notice or pay in lieu thereof and at the same time, the employee has corresponding right to seek voluntary retirement by giving three month's notice provided having qualifying service to his/her credit; and if no communication is served upon Government servant on the contrary within a statutory period of notice, voluntary retirement by a legal fiction automatically comes into effect without there being any order of competent authority unless during the period of the notice, an order in writing is served upon Government servant rejecting request for seeking voluntary retirement. Counsel submits that in the instant case, no communication was ever served upon her after 02/07/2008 within three months statutory period of her request; as such she may be treated to have automatically CW 1892/09 //4// voluntarily retired from service w.e.f. 02/10/2008 and no disciplinary action can be initiated against her under CCA Rules, after her voluntary retirement came into effect on 03/10/2008 and that being so, charge sheet issued vide memo dt.21/07/2009 (Ann.R/1) itself is without jurisdiction and is liable to be quashed & set aside. Government Counsel on the other hand submits that notice served by petitioner dt.02/07/2008 was an offer of seeking voluntary retirement and unless offer was accepted by State Government, it cannot be said that it took automatic effect after expiry of three months in absence of it being communicated of acceptance of her offer for voluntary retirement, she cannot be termed to have retired from service on 02/10/2008 as prayed for. This Court has considered contentions advanced by Counsel for parties and with their assistance, examined material on record. This Court had an occasion to examine scope of R.244(1) of RSR which is a corresponding provisions as contained in R.50 (1) of Pension Rules, 1996, in State of Rajasthan Vs. Shri RP Agrawal & Ors (2006(3) WLC (Raj.) p.620) ad infra: “6. On a plain reading it would appear that the request of the CW 1892/09 //5// Government servant to voluntarily retire after completing the qualifying service or attaining the qualifying age is not binding on the Government, and in situations contemplated in clauses (i), (ii) or (iii) of the proviso, the appointing authority may reject the request. To this extent, the submission of Shri Rafiq that the notice dated 2.6.94 was in the nature of the request of the offer which was not binding on the Government is correct. However, we do not find any substance in the contention that the notice did not take effect and the respondent continued in government service because the Government did not communicate its decision to him. The government servant is not supposed to wait till the State Government communicates its decision on the request and till that is done, the request remains in abeyance, and he continues in the employment of the Government. The fact that the Government servant is under suspension or is facing enquiry or a proceeding is contemplated against him are grounds on which the request can be turned down but it does not mean that the Government can withhold its decision. It may withhold permission but cannot withhold its decision so as to make the rule inapplicable and render the right of the Government servant infructuous.” In instant case, State Government was under obligation to take its decision on CW 1892/09 //6// application submitted by petitioner within a statutory period of three months which indisputably has expired on 02/10/2008 as contemplated in R.50(1) of Pension Rules, 1996, which clearly provides that Government servant may presume acceptance of notice seeking voluntary retirement and the retirement shall be effective in terms of the notice automatically by legal fiction unless order to the contrary has been issued by competent authority before the expiry of the period of notice. Indisputably, in case of present petitioner, no order had been passed by respondents rejecting offer made by her seeking voluntary retirement. Communication dt.26/09/2008 (Ann.R/2) discloses that the petitioner was informed that application seeking retirement is pending consideration without the period of her absence from 26/10/1998 to 10/09/2002 being decided in an inquiry under contemplation and without seeking prior approval from the department, she could not proceed on voluntary retirement. Time was granted by this Court to examine the record and to inform as to whether there is any communication of rejection ever sent to petitioner other than communication dt. 26/09/2008 (Ann.R/2). Govt. Counsel informed this Court after examining the record CW 1892/09 //7// that there is no other document and there was no other communication. However, communication dt.26/09/2008 (Ann.R/2) on its bare perusal in no manner can be considered to be a decision being taken by respondent-authority for rejecting offer of petitioner seeking voluntary retirement within statutory period of three months. In absence whereof, her application seeking voluntary retirement after expiry of three months automatically became effective by fiction of law and she stood retired from service w.e.f. 02/10/2008. Submission made with regard to disciplinary action being initiated against petitioner, suffice is to say that the petitioner once stood retired from service by fiction of law, no departmental inquiry was pending on the date of retirement till 02/10/2008 and thereafter action against an employee could be initiated only after due compliance of R.7 of Pension Rules, 1996, and is a condition precedent to seek prior sanction of the Governor which indisputably has not been obtained and apart from it, nexus of the alleged misconduct with reference to a period of four years prior to the effective date of retirement, has to be established. However, in the present case of petitioner, charge sheet has been issued which has been disputed that it has not been served CW 1892/09 //8// upon her; and that apart, it has not been issued with prior sanction of Governor and thus charge sheet dt.21/07/2009 (Ann.R/10) cannot be treated to be valid with reference to R.7 of Pension Rules, 1996. Consequently, writ petition succeeds and is hereby allowed. It is declared that petitioner stood retired from service w.e.f. 02/10/2008 by fiction of law and therefore, disciplinary action under charge sheet dt.21/07/2009 (Ann.R/10) can not be initiated against her and accordingly memo of charge sheet and the proceedings if initiated thereafter are quashed & set aside. As a consequence whereof (supra), petitioner will be entitled for retiral dues (pension as well as gratuity etc. as admissible under law) taking note of date of her voluntary retirement w.e.f.02/10/2008 alongwith interest @9% per annum as admissible U/r 89 of Pension Rules, 1996. All exercise to comply with aforesaid direction be completed within three months from today. No costs. (Ajay Rastogi), J. K.Khatri/p.8/ 1892CW2009RsrAug27VoltRtrmnt.doc