HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 628/2011 Date of Decision: May 25, 2011 Desh Raj Thakur ……. Petitioner Versus State of H.P. & Anr. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the petitioner : Ms. Ranjana Parmar, Advocate. For the respondents: Mr. Anil Jaswal, Dy. A.G. Sanjay Karol, J. (Oral) Petitioner has prayed mainly for the following relief:- “i) That the impugned order dated 9.2.2011 Annexure P-6 may be quashed and set aside and the petitioner may be deemed to be in service of the respondents as Junior Scale Stenographer with all consequential benefits.” 2. Annexure P-6 reads as under:- “Government of Himachal Pradesh, Planning Department No.PLG(B)4-11/88 Dated Shimla-2 the 9th February, 2011 OFFICE ORDER Whereas Sh. Desh Raj, Junior Scale Stenographer, Planning Department, Himachal Pradesh, Shimla-2 vide his application dated the 31.01.2011 has requested for premature retirement. Whereas the request of Sh. Desh Raj, Junior Scale Stenographer, has been considered carefully and having taken note of having completed 22 years 6 months services, it has been decided to accept the notice for premature retirement of Sh. Desh Raj, Junior Scale Stenographer. 2 Now, therefore, undersigned in exercise of the powers vested in me under sub rule (2) of Rule 3 of H.P. Civil Services (Premature Retirement) Rules, 1976 hereby order that Sh. Desh Raj, Junior Scale Stenographer shall retire from Government service with immediate effect from 9.2.2011 (afternoon) subject to the condition that all outstanding recoveries against him shall be recovered from his retirement dues. Sd/- Adviser(Planning) Himachal Pradesh, Shimla-2.” 3. The aforesaid order was passed pursuant to the request dated 31.1.2011 (Annexure P-2) made by the petitioner seeking retirement for the reason that he had met with an accident resulting into non-functioning of his left arm and also adverse family circumstances. Annexure P-2 was sought to be withdrawn by the petitioner in terms of letter dated 9.2.2011 (Annexure P-3). However, the fact of the matter is that the very same day, Annexure P-6 stood issued whereby petitioner’s resignation was accepted. 4. There is no dispute that petitioner was working as a Junior Scale Stenographer and had sought pre-mature retirement. 5. The question, however is as to whether the resignation and its acceptance is in consonance with the Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976 (hereinafter referred to as ‘the Rules’) relevant extract of which reads as under:- “Rule 3(1): The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right to retire any. Govt. servant by giving him notice of not less than three months’ in writing or three months’ pay and allowances in lieu of such notice:- (a) on completion of 30 years of qualifying service; or 3 (b) attains the age of – (i) 50 years in respect of Class I and Class II officers who have entered Govt. service before attaining the age of thirty five years. (ii) 55 years in case of all other Class I and Class II officers and all the Class III employees; and (iii) 55 years in case of such Class IV employees who entered Govt. service after 23rd July, 1966. Provided that where at least three months’ notice is not given or notice for a period of less than three months’ is given, the employee shall be entitled to claim a sum equivalent to the amount of his pay and allowances at the same rates at which he was drawing them immediately before the date of retirement for a period by which such notice falls short of the months: Provided further that the appropriate authority may at any time before the expiry of the notice period substitute for the whole or part of the unexpired period of notice, pay in lieu thereof and retire the Govt. servant forthwith on making such payment. (2): Any Govt. employee may, after giving at least three months’ previous notice in writing to the appropriate authority retire from service on the date on which he- (a) completes 30 years of qualifying service; or (b) attains the age of – (i) 50 years in respect of Class I and Class II officers who have entered Govt. service before attaining the age of thirty five years. (ii) 55 years in case of all other Class I and Class II officers and all the Class III employees; and (iii) 55 years in case of such Class IV employees who entered Govt. service after 23rd July, 1966. Provided that any Government employee with satisfactory service record may after giving at least three months’ previous notice in writing to the appropriate authority, retire from service on completion of 20 years of service or 45 years of age. Any Govt. 4 servant who seeks retirement under this proviso will be allowed an additional credit of five years’ service for pension etc. Provided further that no employee under suspension shall retire form service except with the specific approval of the appropriate authority. (3)(a): Notwithstanding anything to the contrary contained in sub-rule (2) of this rule a Govt. servant referred to in the said sub rule (2) may make a request in writing to the appointing authority to accept retirement notice of less than three months giving reasons therefor; (b) On receipt of request under clause (a) the appointing authority subject to the provision 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 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 Govt. servant shall not apply for commutation of a part of his pension before expiry of the period of notice of three months.” 6. The rule is in two parts. In the first part, the discretion is with the Government to do away with the services of the employee by either giving three months notice or pay salary in lieu thereof. In the second part the option is with that of the employee. He has to give three months notice expressing his intention of seeking retirement from service, which period upon his request, by furnishing reason, can be curtailed by the authority upon being satisfied that curtailment of the period will not cause any administrative inconvenience. Admittedly, petitioner’s case falls within the second part of the Rule. The whole purpose and object of the Rule is to give sufficient notice to the State to arrange its affairs. Administrative convenience is the prime concern, object and purpose to be kept in mind. 5 7. Rules do not prohibit acceptance of notice prior to the period of three months. The obligation of three months period of notice is only upon the employee. There is no corresponding obligation on the State to this effect, except for that it can retire a person upon payment of salary. 8. Even though in the notice there is no specific prayer for curtailment of three months notice period but nonetheless the contents are evidently clear as petitioner had desired retirement due to various personal reasons. In the absence of any period it is to be presumed to be with immediate effect. The authorities were totally satisfied with the reasons so furnished by the petitioner and consequently took decision to retire him, before three months, with immediate effect. It cannot be disputed that power to relax the condition of three months notice is there with the Government. It also cannot be disputed that such power in the instant case has been exercised bonafidely. The circumstances warranting acceptance of resignation were clearly and unequivocally set out in the notice. After all, petitioner was a Stenographer and his left arm was not properly functioning. Perhaps it was an obstacle in the satisfactory performance and discharge of his duties. 9. In support of their contentions, State has also invited my attention to Annexure R-5, the instructions, which reads as under:- “1 Whether a request for withdrawal of the notice for voluntary retirement if received before the date of actual retirement, should be considered? The request for withdrawal of notice if received before the date of actual retirement, should be considered by the competent authority and the request should be allowed if the said authority is satisfied that:- a) there has bee substantial change in the circumstances which led the Govt. servant to seek retirement, b) The conduct of the Government 6 servant after submitting notice has not been such as unworthy of a Govt. servant and he has not joined any political activity during this period. 2. Whether the request for withdrawal of the notice for retirement should be considered or/any appeal etc. lies after the Govt. servant has been retired? Once the Government servant has been retired at his request, there is no question of withdrawal of the notice for retirement. There is also no question of any appeal in such cases. The Govt. servant so retired can, of course seek fresh appointment in the normal course and compete alongwith other candidates for such posts for which he may be eligible and for which there is direct recruitment.” 10. For the aforesaid reasons, I find no merit in the present petition and the same is dismissed, so also the pending application, if any. ( Sanjay Karol ), Judge. May 25, 2011 (rana)