1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2005 OF 2004 1. The Union of India Through: Secretary, Ministry of Defence, DHQ PO, New Delhi 2. The Engineer-in-Chief, E-in-C's Branch, AHQ, Kashmir House, New Delhi, 3. Chief Engineer, Southern Command, Pune. .. Petitioners Versus Murlidhar R. Hinge, Retied Office Supdt. Grade-II Office of the Chief Engineer, Southern Command Pune. .. Respondents Mr. R.R. Shetty with Mr. D.A. Dubey, for the petitioners Mr. S. P. Saxena, for the respondent. CORAM: V. C. DAGA, & MRS. MRIDULA BHATKAR, JJ. DATED: 16th February, 2009 J U D G E M E N T (Per Mrs. Justice Mridula Bhatkar) 1. This petition is filed against the order passed by CAT dated 01.11.2002 by which the order of voluntary 2 retirement of the respondent on 30.11.1998 was held bad in law and quashed. 2. Factual Matrix : The respondent, in the year 1998 was holding the post of Superintendent Grade- II in the Southern Command, Pune Unit. He gave notice dated 28th April, 1998 to the Chief Engineer, Southern Command of intended voluntary retirement w.e.f. 31.7.1998 i.e. after completion of 20 of years service. On 13th May, 1998, he again wrote a letter and informed that he wanted to re- consider his decision of voluntary retirement. On 1st September, 1998, he again wrote letter stating that he intended to take VRS w.e.f. 30.11.1998 and also gave undertaking that he will not withdraw his application for voluntary retirement under any circumstance. The Chief Administrative Officer, by letter dated 21st September, 1998, accepted the said request for voluntary retirement w.e.f. 30th November, 1998. The respondent, thereafter, on 20.11.1998, sent a letter and informed the authority about his deferment of date of his retirement on the ground of health as he was suffering from Lumber Spondilitis and in the said letter, he prayed that two months medical leave be granted to him. He also stated that he will intimate the date of retirement as soon as possible. The Administrative officer, by letter dated 27th November, 1998, refused to accept the date of deferrment of voluntary retirement by rejecting the 3 medical leave and ordered the respondent to remain present on 30.111998 as he was supposed to be on duty on the last date of his retirement. On 30.11.1998, the respondent joined duty and submitted joining report alongwith medical certificate of Sharda Clinic. However, on the same day, the Administrative Officer gave him an order of retirement. The respondent, challenged the said order of his voluntary retirement before the Central Administrative Tribunal by filing a petition bearing No. 1090 of 1999 . The Tribunal decided the said petition in favour of the respondent by its judgement and order dated 1.11.2002. Being aggrieved with the said judgement and order, this petition is filed by the petitioners- Union of India. 3. Rival Submissions: The learned Advocate appearing for the petitioners submitted that the respondent has not withdrawn his application of VRS. He has informed about the deferment of the date of retirement and there is no such provision of deferment in the scheme of Voluntary retirement for Central Government employees which was adopted on/from 26th August, 1977. It was also submitted that, the petitioners have accepted the request of the petitioner of Voluntary retirement by writing him letter of 21st September, 1998 and once such acceptance is communicated, then it was necessary for the respondent to place the application for withdrawal of his request for 4 Voluntary retirement, to the competent authority. Further, the withdrawal is always subject to the approval of the appointing/competent authority. The learned Advocate argued that the ratio laid down in the case of KLE society Vs. Dr. R. R. Patil, reported in 2002 (5) SCC 278 ought not to have been made applicable in the facts of the present case when there was no material change in the circumstance to accept the request of respondents of deferment of the date of retirement. 4. The learned Advocate for the respondent in reply has submitted that despite the intimation of deferment of the date of retirement by the respondent, the petitioners have illegally made the respondent to retire voluntarily on 30.11.1998. He further argued before us that the notice of such communication of deferment was given within a period of 90 days i.e. within the stipulated notice period. In his submission, deferment was nothing but a withdrawal of his request for VRS. Hence, the Tribunal has rightly set aside the order of retirement passed by the Competent authority. In support of his argument, the learned advocate for the respondent has relied on the decision of Hon' ble Apex Court in the case of Balram Gupta Vs. Union of India and another reported in 1988 (1) AISLJ 79. 5. The Issue: : In view of the above, submissions, 5 the core issue is : whether deferment of the date of retirement will amount to withdrawal of the voluntary retirement or not ? 6. Consideration : Chronological events viz. sending letter of voluntary retirement by the respondent, acceptance of the voluntary retirement by the petitioners, letter of deferment of the date of retirement etc. are not disputed. The wording in the body of the said letter of deferment dated 20.11.1998 needs to be looked into to find out intention of the author. In the said letter, the respondent has mentioned that - “.... Since I can not resume duty in such circumstances, I request you to kindly approve deferment of date of retirement until my resumption of duty and oblige. I shall remain grateful to you for this. I shall intimate you the date of retirement as soon as I join duty. M.C. is enclosed w herewith.” ( Emphasis supplied) In the said letter, the respondent has not used the word “withdrawal” of voluntary retirement. 7. An employee of Central Government is entitled to take benefits of the voluntary retirement scheme adopted by the Government in the year 1977 by its office order No. 25013/7/77-Estt (A) dated 26th August, 1977. Under Rule 48-A of the Central Civil Services (Pension) Rules, 1972, the employee can withdraw his decision of 6 voluntary retirement subject to the approval of the competent authority and the said application also should have been made within expiry of notice period. The Rule 48-A reads as under: “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. (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” Sub rule -4 of Rule 48-A reads as follows: “(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.” 8. Thus, subject to approval by the competent authority, necessarily implies the discretion to disapprove. However, the scheme specifically speaks about prior notice of 90 days to the competent authority by the person, who is desirous of availing the Voluntary Retirement Scheme. The notice is required to be given to 7 enable the employee to intimate his employer, the competent authority that after 90 days, the service of a particular employee will not be available in the establishment and also, to enable the administration to make alternate arrangement as well as to complete the other necessary formalities. Secondly, it also gives a chance to the employee to re-reconsider his decision. He may opt to withdraw it; thus the notice period keeps the option open to the employee. The acceptance by the competent authority -employer becomes effective after expiry of notice period of 90 days. The acceptance of withdrawal is thereafter subject to the approval by the competent authority. This approval of the competent authority contemplated under the Rules is needed only after the expiry of notice period and not before expiry of it. The voluntary retirement is nothing but a resignation of service under the Scheme of voluntary retirement. Resignation can be withdrawn before it become effective as held by Apex Court in AIR 1978 SC 17. 9. Now, let us turn to the law laid down by the Hon' ble Supreme Court in the case of KLE society Vs. Dr. R. R. Patil, reported in 2002 (5) SCC 278 . In the said case by the letter, a request was made by the employee to keep the date of retirement in abeyance but there was no specific request for withdrawal of the notice. The authority did not 8 wait for three months and issued order accepting VRS. The Apex Court held it premature and went on to say that it amounted to an unilateral curtailment of notice period contrary to the scheme. The order was held to be bad in law. 10. In the present case, the letter of request to postpone the date of retirement and keep it in abeyance has the same effect to say that the retirement should not take place on the last day of notice period. The said judgement of KLE Society (Supra) is very much applicable to the facts of this case. It was rightly relied upon by the Tribunal. Needless to say, the adjective “voluntariness” creates a particular category of retirement. It is a class by itself. Voluntariness includes volition of the person opting for retirement . If such decision to retire voluntarily is deferred and the date of retirement is postponed by the employee, then the element of voluntariness fades away and at that point, it cannot be said that the employee is desirous of opting for the voluntary retirement scheme. 11. In the present case, though the word ' withdrawal' is not expressly used by the respondent, but he has expressly communicated that his date of retirement be deferred. It means that he did not want the previous notice to take effect on a particularly given date. Deferred means to put off, postpone, delay. It means the event 9 should not come into effect until such a specified later period as agreed upon by the employee is refixed. In this case later period was never communicated by the respondent. No specific later date was even given by him, as such it could not have been acted upon in absence of any fresh communication of any other later date. The Administrative officer as such could not have acted upon the previous notice which did not exist. 12. The decision to retire respondent is unilateral. The view taken by the Tribunal is reasonable and possible view. No perversity could be demonstrated in the impugned order by the petitioner. Hence the order passed by the Central Administrative Tribunal cannot be interfered with. The refusal to accept the withdrawal being erroneous, it was rightly struck down by the Tribunal. In the result, petition is dismissed. Rule is discharged. No order as to cost. (MRS. MRIDULA BHATKAR) (V. C. DAGA) jpc/-