IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 17052 of 2009(B) --------------------------------------- PETITIONER: ------------------- S.RAJASEKHARAN NAIR, S/O. P.SEKHARAN NAIR, AGED 55 YEARS, SELECTION GRADE LECTURER IN HISTORY, V.T.B. COLLEGE SREEKRISHNAPURAM, PALAKKAD DISTRICT. BY ADVS. MR.V.A.MUHAMMED, MR.K.E.HAMZA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE MANAGER, V.T.B. COLLEGE, SREEKRISHNAPURAM, PALAKKAD DISTRICT. 3. THE PRINCIPAL V.T.B.COLLEGE, SREEKRISHNAPURAM, PALAKKAD DISTRICT. R1 BY GOVT. PLEADER MR. BINOY CHANDRAN. R2 & R3 BY ADVS. MR. M.V.S.NAMBOOTHIRY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.17052/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REQUEST OF THE PETITIONER DTD. 03/06/2009. EXT.P.2: COPY OF THE LETTER OF THE PRINCIPAL DTD. 05/06/2009. EXT.P.3: COPY OF THE LETTER OF THE PETITIONER DTD. 12/06/2009. EXT.P.4: COPY OF THE LETTER OF THE PRINCIPAL DTD. 16/06/2009. EXT.P.5: COPY OF THE ORDER OF THE MANAGER DTD. NIL. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE APPLICATION DTD. 17/03/09 SUBMITTED BY THE PETITIONER. EXT.R2.B: COPY OF THE ORDER NO. 09/VTB/2009 DTD. 30/05/2009. EXT.R3.A: COPY OF THE COVERING LETTER DTD. 19/03/2009 VIDE WHICH THE PETITIONER'S PENSION PAPERS WERE SENT TO THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. EXT.R3.B: COPY OF THE FORM `E' OF PETITIONER'S PENSION BOOK. EXT.R3.C: COPY OF THE ACKNOWLEDGMENT CARD. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17052 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the th 20th day of October, 2009. JUDGMENT The petitioner herein who is working as Selection Grade Lecturer in History in the college managed by the second respondent, seeks for a direction to continue him in service until 31.3.2010, in spite of submission of an application for voluntary retirement. 2. The dispute herein involves an application submitted by the petitioner seeking voluntary retirement from service which he has sought to withdraw. The management resists the withdrawal on the ground that they have already accepted the application. The legal effect of the withdrawal is the issue to be decided in the writ petition. 3. The petitioner made a request to the Manager seeking voluntary retirement on 17.3.2009. A copy of the same is produced as Ext.R2(a). The voluntary retirement sought for is with effect from 30.6.2009. It was submitted to the Manager through the Principal. Ext.P1 is the letter given by the petitioner seeking to withdraw Ext.R2(a). This is dated 3.6.2009. Ext.P2 is the reply given to the Principal on 5.6.2009 whereby it was informed that Ext.P1 can have relevance only if the Manager does not take wpc 17052/2009 2 any steps on the application seeking voluntary retirement till the end of June. Again, the petitioner submitted Ext.P3 dated 12.6.2009 to the Manager seeking to withdraw the voluntarily retirement application and allow him to continue in service. Finally, by Ext.P4 dated 16.6.2009, the Principal forwarded an order dated 30.5.2009 produced as Ext.P5, whereby the “Management has permitted the petitioner to retire voluntarily subject to the relevant rules in the KSR - Rule 56 Part III, with effect from 30.6.2009.” It is in these circumstances, that the petitioner has approached this court. 4. Mainly, it is contended that as the petitioner has withdrawn the request for voluntary retirement before the application for voluntary retirement has come to effect, he is entitled to continue in service. Reliance is placed on the principles stated by this Court and the Apex Court in various decisions, viz. Union of India v. Wing Commander T. Parthasarathy{( 2001) 1 SCC 158}, Srikantha S.M. v. Bharath Earth Movers Ltd. {(2005) 8 SCC 314), National Textile Corporation v. Jhadav (2008 (3) KLT SN 49 and Sivadas v. Kerala State Handloom Development Corpn. (1991 (2) KLT SN page 37, Case No.47). 5. Counter affidavits have been filed on behalf of respondents 2 and 3. In a nutshell, the stand taken therein is that before submission of Ext.P1 wpc 17052/2009 3 application for withdrawal, by Ext.R2(a), the petitioner's request was allowed by the Management and as they have accepted Ext.P1 application and permitted the petitioner to retire voluntarily from the afternoon of 30.6.2009, the withdrawal can have no legal effect. Reliance is placed on Rule 56 (iv) of Part III K.S.R. also. 6. Heard Shri V.A. Muhammed, learned counsel for the petitioner and Shri M.V. S. Namboothiri, learned counsel appearing for respondents 2 and 3 and learned Govt. Pleader. 7. By relying upon various decisions, learned counsel for the petitioner vehemently submitted that the application for voluntary retirement from service was from a future date, viz. 30.6.2009. Till the expiry of the said date, the jural relationship of employer-employee continues. Therefore, the mere acceptance of the application will not have any effect on the said jural relationship. Therefore, the application for withdrawal which was forwarded well in time ought to have been accepted. It is pointed out that merely because the resolution is dated 30.5.2009 and the application for withdrawal is dated 3.6.2009, the position cannot change. 8. Learned counsel appearing for respondents 2 and 3 relied upon sub-rule (iv) of Rule 56 of Part III K.S.R. which reads as follows: “ (iv) Voluntary retirement of an employee shall become effective on wpc 17052/2009 4 the grant of permission to retire by the authority competent to make appointment to the post.” It is therefore submitted that once the permission has been granted as per Ext.R2(b) by the management, it has become effective. The same is dated 30.5.2009. Therefore, the letter Ext.P1 cannot have any legal effect. Reliance is placed on the decision of the Apex Court in Raj Kumar v. Union of India (AIR 1969 SC 180). In para 5 of the said decision, it has been held thus: “Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiac but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the preset case the resignation was accepted within a short time after it was received wpc 17052/2009 5 by the Government of India. Apparently the State of Rajasthan did not, immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.” 9. I will examine the contentions of the parties, in the light of the principles laid down in various decisions. In the decision of this court in Sivadas's case (1991 (2) KLT SN 37, case No.47), the letter of resignation was dated 15.3.1991 which was accepted on 18.4.1991. The letter withdrawing the resignation is dated 6.4.1991. While examining the legal issue, it was held thus: “The services of an employee normally stands terminated only from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary. Till the resignation was accepted by the concerned authority is consonance with the rules governing acceptance, the employee concerned has locus poenitentiac but not later. Under common law also, resignation is not complete until accepted by the competent authority. Before such acceptance, the employee ca change mind and withdraw his resignation. When once the resignation is accepted and the contract of service put an end to, the relationship of master and servant ends and thereafter there is no question of withdrawal of the resignation.” 10. In Union of India and others v. Wing Commander T. wpc 17052/2009 6 Parthasarathy {(2001)1 SCC 158} relied upon by the learned counsel for the petitioner, the Apex Court considered a similar issue. Therein, an application was submitted by the officer on 21.7.1985 praying for premature retirement from service with effect from 31.8.1986. Later, on 19.2.1986 he submitted an application seeking to withdraw the application earlier submitted for premature retirement. He was served with a communication on 7.3.1986 which is dated 6.3.1986 stating that information has been received from Air headquarters in their letter dated 20.2.1986 that the respondent will prematurely retire from service at his own request with effect from 31.8.1986. The Apex Court considered various decisions, viz. Raj Kumar v. Union of India (AIR 1969 SC 180), Union of India v. Gopal Chandra Misra (AIR 1978 SC 694) and Balram Gupta v. Union of India (1987 Supp SCC 228). It was held thus in paragraphs 6 and 8: “A request for premature retirement which required the acceptance of the competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date as in this case. So far as the case in hand is concerned, nothing in the form of wpc 17052/2009 7 any statutory rules or any provision of any Act has been brought to our notice which could be said to impede or deny this right of the appellants. On the other hand, not only the acceptance of the request by the headquarters, the appropriate authority was said to have been made only on 20.2.1986, a day after the respondent withdrew his request for premature retirement but even such acceptance in this case was to be effective from a future date namely 31.8.1986. Consequently, it could not be legitimately contended by the appellants that there was any cessation of the relationship of master and servant between the Department and the respondent at any rate before 31.8.1986. While that be the position inevitably the respondent had a right and was entitled to withdraw or revoke his request earlier made before it ever really and effectively became effective.” 11. The next decision relied upon by the learned counsel for the petitioner is Srikantha S.M.'s case {(2005) 8 SCC 314}. Therein, the letter of resignation was tendered on 4.1.1993. On the basis of the said letter, the matter was processed and the resignation was accepted on the same day. The appellant was informed that his resignation had been accepted and he would be relieved “with immediate effect”. By another letter, he was informed that his casual leave had been sanctioned from 5.1.1993 to 13.1.1993 and 14.1.1993 being a holiday, the appellant would be relieved by the close of working hours on 15.1.1993. During this period, wpc 17052/2009 8 the appellant submitted another letter dated 8.1.1003 withdrawing his resignation. After referring to the decisions in Union of India v. Gopal Chandra Misra.(AIR 1978 SC 694), Balram Gupta v. Union of India (1987 Supp SCC 228), Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia {(1997) 4 SCC 280}, J.N. Srivastava v. Union of India {(1998) 9 SCC 559} and Shambhu Murari Sinha v. Project and Development India {(2000) 5 SCC 621}, it was held in para 26 thus: “On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent company had accepted the resignation of the appellant on 4.1.1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5.1.1993 to 13.1.1993. Moreover, he was informed that he would be relieved after office hours on 15.1.1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4.1.1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company up to 15.1.1993.” Therefore, the view taken is that the relationship of employer and employee did not come to an end on 4.1.1993 and the letter withdrawing the resignation ought to have been treated as valid. 12. A reference to the principles stated by the Apex Court in various wpc 17052/2009 9 other decisions is also relevant. The question regarding the application for withdrawal in respect of a prospective resignation was considered by a Constitution Bench of the Supreme Court in Union of India's case (AIR 1978 SC 694). In fact, the decision of the Apex Court in Raj Kumar's case (AIR 1969 SC 180) relied upon by respondents 2 and 3 was considered and explained in the said decision. Therein, the letter of resignation is dated 7.5.1977 stating that the resignation shall be effective from 1.8.1977. The letter withdrawing the same is dated 15.7.1977. It was held thus in paragraphs 42 and 51 thus: “42. The general principle that emerges from the foregoing conspectus is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him, at any time before it becomes effective, ie. before it effects termination of the tenure of the office/post or the employment.” Finally, in para 51, their Lordships laid down the law thus: “It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a “prospective” resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the wpc 17052/2009 10 employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority.” 13. The next important decision rendered by the Apex Court is Balram Gupta's case (AIR 1987 SC 2354 = 1987 Supp. SCC 228). That was a case of voluntary retirement. The facts of the case show that as per letter dated 24.12.1980 the appellant sought voluntary retirement from service, with effect from 31.3.1981. By order dated 20.1.1981 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31.3.1981. In the meanwhile, by a letter dated 31.1.1981 he withdrew the notice of voluntary retirement. The question was whether the withdrawal is effective. In fact, sub-rule (4) of Rule 48-A of the Pension Rules prevented withdrawal of resignation letter except with the approval of the authority. It was argued that once the officer gives the notice of intention to voluntarily retire, it operates. It was held that “ the dissolution would be brought about only on the date indicated, i.e. 31st of wpc 17052/2009 11 March, 1981, up to that the appellant was and is a Government employee. There is no unilateral termination of the same prior thereto. Their Lordships considered the decision in Raj Kumar's case (AIR 1969 SC 180) as well as Union of India's case (AIR 1978 SC 694). It was held in para 11 that “but in the facts of the instant case, the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appellant had locus.” The argument raised by relying upon sub-rule (4) of Rule 48-A of the Pension Rules, was also rejected. 14. In Power Finance Corporation's case {(1997) 4 SCC 280), the mater considered was in relation to an application for voluntary retirement. Therein, the respondent applied for voluntary retirement pursuant to the scheme framed by the Corporation, to relieve the surplus staff. Initially, by proceedings dated 20.12.1994 the Corporation accepted the resignation subject to his clearance of outstanding. The acceptance was to given effect from 31.12.1994. The respondent also requested that the formal relieving order relieving him from 31.12.1994 be handed over immediately. In the meanwhile, the appellant Corporation withdrew the scheme. It was contended that as the voluntary retirement did not become effective, no vested right has been created in favour of the respondent. It was held thus in wpc 17052/2009 12 para 7: “It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby, no vested right has been created in favour of the respondent.” 15. In J.N. Srivastava v. Union of India {(1998) 9 SCC 559}, the appellant gave notice for voluntary retirement on 3.10.1989 which was to come into effect from 31.1.1990. This was accepted by the Government on 2.11.1989 and thereafter the appellant withdrew the notice by his letter dated 11.12.1989. The said communication was not accepted by the Government. While examining the question, it was held thus: “It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiac to withdraw the proposal for voluntary retirement.” Accordingly, the Apex Court set aside the order of the authority as well as the order of the Tribunal and directed the respondents to treat the appellant wpc 17052/2009 13 to have been voluntarily withdrawn his proposal for voluntary retirement with effect from 31.1.1990. 16. I may also refer to another decision of the Apex Court in Shambhu Murari Sinha's case {(2000) 5 SCC 621} which was also a case concerning voluntary retirement. Therein, the application of the appellant was dated 18.10.1995. The offer was accepted by the management by their letter dated 30.7.1997. It was specified in the letter that “release memo along with the detailed particulars will follow.” The appellant submitted a letter on 7.8.1997 withdrawing the letter dated 18.10.1995. This was not given effect to by the management. While considering the question whether the letter of withdrawal of voluntary retirement could have been acted upon, it was held thus in para 5: “From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by the respondent Management by their letter dated 30.7.1997, the appellant was not relieved from service and he was allowed to continue in service till 26.9.1997, which, for all practical purposes, would be the “effective date” as it was on this date that he was relieved from service. In the meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary retirement vide his letter dated 7.8.1997. The question which, therefore, arises in this appeal is whether it is open to a person having wpc 17052/2009 14 exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it is made effective. The question is squarely answered by three decisions, namely, Balram Gupta v. Union of India, J.N. Srivastava v. Union of India and Power Finance Corporation Ltd. v. Pramod Kumar Bhatia in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the “effective date”. That being so, the appeal is allowed.” 17. The facts of the present case have to be examined in the light of the legal principles thus discussed above. The case pleaded by respondents 2 and 3 is that as the petitioner's application was acted upon and the same was accepted by the appointing authority, the same came into effect on 30.5.2009 itself. Reliance is placed on sub-rule (iv) of Rule 56 of Part III K.S.R. also. In Balram Gupta's case (AIR 1987 SC 2354), reference is made to sub-rule (2) of Rule 48A of the Pension Rules which provides that “the notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority.” By an order dated 20.1.1981 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31.1.1981. The said order reads as follows: “Shri Bal Ram Gupta, permanent Upper Division Clerk and Officiating Accountant in the Photo Division is allowed to retire voluntarily with effect from the afternoon of 31st March, 1981, in accordance with the provisions contained in the Ministry of Home wpc 17052/2009 15 Affairs, Department of Personnel and Administrative Reforms O.M. No.25013/7/777 Estt.(A) dated 26th August, 1977.” The situation herein is similar. 18. It is clear from Ext.P5 that the petitioner will have to retire from service with effect from 30.6.2009 and not on an earlier date at all. Therefore, the jural relationship of employer and employee continues till 30.6.2009. The voluntary retirement will become effective only on 30.6.2009. Prior to that, by Ext.P1 dated 3.6.2009 he withdrew the application for voluntary retirement. Hence, going by the principles reiterated by the Apex Court in various decisions, it is clear that the effective date of retirement was 30.6.2009. It was permissible for the petitioner to withdraw the application prior to that date. Merely because the management permitted the petitioner to retire by its proceedings dated 30.5.2009, the jural relationship of employer and employee did not come to an end on that day. Herein, as the voluntary retirement had to be effective from a future date, such permission by the management will not have any effect. As held in J.N. Srivastava's case {(1998) 9 SCC 559) even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus paenitentiac to withdraw the proposal for voluntary wpc 17052/2009 16 retirement. The facts in Balram Gupta's case (supra) show that the position therein was also identical. In these circumstances, the contention raised by respondents 2 and 3 that since by Ext.P5 permission has been granted and as the voluntary retirement has been effective from that day, there is no legal effect for the application for withdrawal, cannot be accepted. The wording of Ext.P5 thus allowing him to retire only from the afternoon of 30.6.2009 is all the more important in considering the legal position. Nothing prevented the petitioner from withdrawing the application before the said date. 19. In that view of the matter, the petitioner is entitled to succeed in this writ petition. Hence, Ext.P5 is quashed. There will be a direction to the respondents to allow the petitioner to continue in service till 31.3.2010, the date on which he attains superannuation. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/