IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISHTA 1931 WP(C).No. 27303 of 2009(G) -------------------------- PETITIONER(S): --------------- SUMANGALA K., H.S.A.(HINDI), GOVT. HIGH SCHOOL, PARAVOOR, ALAPPUZHA, NOW ON DEPUTATION TO BLOCK RESOURCE CENTRE, S.S.A, ALAPPUZHA. BY ADV. SRI.M.K.PRADEEPKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE HEAD MASTER/MISTRESS, GOVT. HIGH SCHOOL, PARAVOOR, ALAPPUZHA. 5. ACCOUNTANT GENERAL OF KERALA (A & E), THIRUVANANTHAPURAM. 6. STATE PROJECT DIRECTOR (SSA), KERALA, SSA, THIRUVANANTHAPURAM. 7. DISTRICT PROJECT OFFICER, SSA, ALAPPUZHA. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.27303/2009 APPENDIX PETITIONER's EXHIBITS: P1: The true copy of the State Project Director(SSA) ,Kerala, Order No.A3-2608/2003/SSA dated 17.7.2004. P2: The true copy of the request of voluntary retirement dated 08.02.2008. P3: The true copy of the Forwarding letter of HM dated 08.02.2008. P4: The Headmistress, Govt.High School, Paravoor also intimated regarding the application ofo the petitioner to the District Project Officer Alappuzha by its letter dated 27.2.2008. P5: The true copy of the request of the petitioner dated 2.04.2008. P6: The true copy of the letter dated 31.07.2008 of HM. P7: The true copy of the notice dated 08.09.2008 of the Deputy Director of Education, Alappuzha. P8: The true copy of the reply letter of the petitioner dated 29.09.2008. P9: The Headmistress, Govt.High School, Paravoor by her letter dated 29.9.2008 replied to the Deputy Director of Education, Alappuzha stating all reasons and circumstances of the case and given her recommendations. P10: The true copy of the above said letter dated 31.07.2009. P11: The true copy of the above said letter dated 20.06.2009 along with the envelope in which it was sent. P12: True copy of the G.O.(RT).No.3919/2009/18.9.2009. P13: True copy of the letter No.G-2/2339/2008 dated 3.2.2010 of Deputy Director of Education, Alappuzha. P14: True copy of the letter No.SSA 2/34/2009 dated 25.02.2010 of District Project Officer (SSA), Alappuzha. P15: True copy of the letter No.01/2009-10 dated 01.3.2010 of Block Programme Officer(SSA), Alappuzha. P16: The true copy of the 7th respondent order No.SSA2/34/2009/DPO ALPY dated 25.3.2010. P17: The true copy of the relieving order No.01/2009-10 of Block Project Officer, Alappuzha dated 31.3.2010. P18: The true copy of the joining report of the petitioner dated 31.3.2010. P19: The true copy of the letter in that aspect of 3rd respondent dated 5.4.2010. RESPONDENTS' EXHIBITS: Nil C.R C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.27303 OF 2009 -------------------------------------------- Dated this the 10th day of June, 2010 JUDGMENT The issue whether the petitioner had locus penetentiae to withdraw the notice of voluntary retirement from service and certain allied questions arise for consideration in this case. The facts, in succint sufficient to decide the said issue, are as follows: 2. The petitioner while working as High School Assistant (Hindi), under the General Education Department, was sent on deputation as per Ext.P1 dated 17.7.2004, to the Surva Shiksha Abhiyan Project (for short the 'SSA Project'). It is a project under the Central Government. Later, the petitioner had submitted Ext.P2 application dated 8.2.2008 to the Deputy Director of Education, Alappuzha to permit her to retire voluntarily with effect from 31.3.2008. According to the petitioner, there was no response at all to Ext.P2 application and she continued in the SSA Project till 31.3.2010. The petitioner was also given salary and other allowances upto 31.1.2010. However, payment of salary was discontinued from 31.1.2010 onwards. It was so intimated to the petitioner as per Ext.P15. Subsequently, Ext.P16 order dated 25.3.2010 was issued by the W.P.(C) NO.27303/2009 2 District Project Officer (SSA) Alappuzha repatriating the petitioner to the parent department with instruction to report before the third respondent forthwith. Ext.P17 dated 31.3.2010 is the relieving order. On being relieved off the duties of the SSA Project, the petitioner reported to the third respondent as per Ext.P18. However, the third respondent did not permit the petitioner to rejoin duty citing the reason that her request for voluntary retirement with effect from 31.3.2008 was already accepted by the Department. The said fact is evident from Ext.P19. It is in the aforesaid circumstances that this Writ Petition has been filed for a declaration that the petitioner's continuance in service is lawful and proper and that Ext.P2 has become infructuous. The further prayer in the Writ Petition is for the issuance of a writ of mandamus commanding the respondents to close the file in respect of voluntary retirement made out by the petitioner vide Ext.P3, as infructuous. 3. A counter affidavit has been filed in this Writ petition by the third respondent. The main thrust of the contentions therein is that by virtue of application of proviso to Rule 56 (4) Part III of Kerala Service Rules, the petitioner should be deemed to have been retired from service with effect from the intended date of retirement specified in Ext.P2 viz., W.P.(C) NO.27303/2009 3 31.3.2008. Therefore, according to the respondents, the continuance of the petitioner beyond 31.3.2008 is illegal. The respondents are entitled to recover the salary and other allowances received by the petitioner after 31.3.2008. Earlier, Ext.P7 notice was issued to the petitioner as also to the Headmistress of Government High School, Paravoor wherein the petitioner was working when she was deputed to the SSA Project. It is stated in the counter affidavit that the petitioner had specifically shown 31.3.2008 as the intended date of voluntary retirement and, on or before that date, the authority competent to make appointment to the post did not issue any order refusing to grant the permission for granting voluntary retirement. Therefore, it became effective with effect from 31.3.2008 itself. 4. The contention of the petitioner is that subsequent to Ext.P2 dated 8.2.2008, the petitioner had submitted Ext.P5 application dated 2.4.2008 requesting to withdraw Ext.P2 application. The specific contention of the petitioner is that no order was passed by any of the authorities despite the receipt of Ext.P5 and, that apart, she continued in the service of SSA Project pursuant to the deputation till 31.3.2010. It is her specific case that despite the receipt of Ext.P2, the term of deputation of all the deputationists including the petitioner was extended as per W.P.(C) NO.27303/2009 4 Ext.P12. In Ext.P12, the name of the petitioner figures at 13. As noticed hereinbefore, the petitioner was disbursed with the salary and other allowances till 31.1.2010. The same was discontinued only pursuant to Ext.P15. Further, she was relieved as per Ext.P17 only on 31.3.2010. In short, after the intended date of retirement, the petitioner had worked till 31.3.2010. Exts.P16 and P17 would reveal that she was relieved from SSA Project with a specific direction to report before the third respondent. According to the petitioner, Ext.P2 application had not taken its effect either on 31.3.2008 or thereafter and therefore, when she reported before the third respondent pursuant to Ext.P17, she should have been permitted to rejoin duty in the parent department. 5. According to me, it is unnecessary to delve into the facts any more in view of a Division Bench decision of this Court in VenuGopal v. State of Kerala reported in 2010(1) ILR 867. After referring to the rules relating to voluntary retirement applicable to employees in different states, it was held that under certain rules, expiry of the period specified in the notice would result in automatic retirement of an employee upon the expiry of the period specified in the employees' notice. It is further held that certain rules are couched in such manner that even upon the expiry of the W.P.(C) NO.27303/2009 5 period specified in the notice, the retirement is not automatic and an expressed order granting permission is required. That apart, the same has to be communicated as well. In explicit terms, it has been held that Rule 56 of Part III Kerala Service Rules fall under the first category. In this context, it is relevant to look into the proviso to Rule 56(iv) of Part III Kerala Service Rules. As per the same, in case the authority competent to make appointment to the post held by the concerned employee who applied for voluntary retirement, does not refuse to grant permission for retirement before the date on which the employee wished to retire, the retirement would become effective with effect from the date specified in the notice. In this case, admittedly, the intended date of retirement was specified as 31.3.2008 by the petitioner. It is also not in dispute that before the said date, no order refusing to grant permission for voluntary retirement was passed. The fact that the petitioner had continued in service of SSA even after the said date cannot be a reason to arrest the automatic operation of the aforesaid provision. Admittedly, the petitioner had submitted Ext.P5 only after the intended date of voluntary retirement. It was submitted only on 2.4.2008 whereas the intended date of retirement was 31.3.2008. To know whether Ext.P5 letter dated 2.4.2008 has got any impact, one has to W.P.(C) NO.27303/2009 6 look into the relevant provision under the statute viz., proviso to Sub-rule (iv) of Rule 56 of Part III of the Kerala Service Rules that contains the doctrine of deemed acceptance. It reads thus:- “Voluntary retirement of an employee shall become effective on the grant of permission to retire by the authority competent to make appointment to the post. Provided that where the authority competent to make appointment to the post does not refuse to grant permission for retirement before the date on which the employee wishes to retire specified in the notice under clause (i), the retirement shall become effective from the date specified in the notice.” Sub-rule (v) of Rule 56 also has relevance in the context of the case and it runs as hereunder: Permission to retire shall be given in all cases except those in which disciplinary proceedings are pending for imposition of a major penalty or the disciplinary authority, having regard to the circumstances of the cases is of the view that the imposition of the penalty of removal or dismissal from service would be warranted or in which prosecution is contemplated or may have been launched in a Court of Law against the officer; A scanning of proviso to Sub-rule (iv) of Rule 56 would undoubtedly show that it postulates a positive action viz., refusal to grant permission for retirement, in order to prevent one's voluntary option for retirement to become effective by virtue of its operation. Admittedly, none of the W.P.(C) NO.27303/2009 7 circumstances contemplated under Sub-rule (v) of Rule 56 existed in this case, warranting denial of such permission. In the circumstances, in the light of proviso to Sub-rule (iv) of Rule 56 and the Division Bench decision reported in 2010 (1) ILR 867 (supra), I am of the view that the inescapable conclusion can only be that the petitioner should be deemed to have been retired voluntarily on 31.3.2008. Thus, by virtue of legal provision, the jural relationship has come to an end and it was only thereafter, Ext.P5 dated 2.4.2008 was submitted for permission to withdraw Ext.P2 option of voluntary retirement. In the said circumstances, the petitioner could not claim that he had locus penetentiae to withdraw the option of voluntary retirement on 2.4.2008. In fact, Ext.P5 dated 2.4.2008 was a request to permit him to withdraw Ext.P2 and to resume duty. In the light of the proviso to Sub-rule (iv) of Rule 56 of Part III KSR, the said request could not have been granted. Therefore, the contention of the petitioner regarding its non-consideration needs no serious consideration. Evidently, the effective date of voluntary retirement in this case is 31.3.2008 and, therefore, the fact that he was not actually relieved on 31.3.2008 and continued in service cannot have any legal impact and it cannot by itself make the request for withdrawal acceptable and allowable W.P.(C) NO.27303/2009 8 in the light of the decision of the Hon'ble Apex Court in J.N.Srivastava v. Union of India & another reported in 1998 (9) SCC 559 and JT 1997(4) SCC 300. In this context, it is also to be noted that the petitioner as also the Headmistress of Government High School, Paravur were issued with Ext.P7 notice dated 8.9.2008. In the light of Ext.P8 also, the petitioner cannot be heard to contend that she is legally entitled to resume duty merely on account of her continuance beyond 31.3.2008. Therefore, the petitioner is not entitled to get a declaration that her continuance in service was lawful and that Ext.P2 has become infructuous. So also, the fact that the petitioner continued in the SSA Project till 31.3.2010 also cannot nullify the effect of the proviso to Rule 56(iv) of Part III KSR. For all these reasons, I am of the view that Ext.P2 submitted by the petitioner for voluntary retirement should be deemed to have been taken its effect from 31.3.2008 and, therefore, the petitioner cannot be granted the relief to enable resumption of duties. 6. But, in this case, as is obvious from the records, the petitioner had continued beyond 31.3.2008 under the SSA. In fact, she continued for more than two years and the said fact is evident from Exts.P16 and P17. It is also an admitted position that till 31.1.2010, the petitioner was given W.P.(C) NO.27303/2009 9 salary and other allowances. The petitioner was relieved from SSA Project only on 31.3.2010. Therefore, the question is, whether in the said circumstances, the respondents are justified in attempting to recover the amount already paid to the petitioner. Having exploited her service, the respondents cannot deny her remuneration. Even if they had engaged somebody in any capacity, they could not have denied the remuneration. Therefore, there is absolutely no justification for the respondents to initiate steps to recover the amount already paid to the petitioner till 31.1.2010. But, of course, that period is not reckonable for the purpose of granting the pensionery benefits. The impact of the proviso to Rule 56 (iv) would definitely disentitle the petitioner from claiming for any other service benefits beyond 31.3.2008. Though the petitioner was served with Ext.P7 notice, no action was, in fact, taken against the petitioner. Therefore, even in the absence of a challenge against the recovery proceedings, I think in the interest of justice, this Court has to interfere and mould the relief accordingly. Therefore, there will be a direction to the respondents not to pursue with any kind of proceedings against the petitioner for the purpose of recovering the amounts received by the petitioner after 31.3.2008 till 31.1.2010. Needless to say that the competent authorities among the W.P.(C) NO.27303/2009 10 respondents shall take appropriate steps for the disbursement of the benefits due to the petitioner on account of her voluntary retirement with effect from 31.3.2008, expeditiously. The Writ Petition is disposed of as above. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.27303/2009 11 C.T. RAVIKUMAR, J. W.P.(C). NO. /2010 JUDGMENT June, 2010 W.P.(C) NO.27303/2009 12