- 1 - S.B.CIVIL WRIT PETITION NO.5045/2006 (Smt. Vijay Laxmi Gaur vs. Jodhpur Vidhyut Vitra Nigam Ltd. & ors..) DATE OF ORDER : 24/4/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.M.R.Singhvi, for the petitioner. Mr.Manoj Bhandari, for the respondents. In this writ petition, petitioner is challenging the impugned order dated 11/8/2003 (Annex.R/3) filed by respondents along with their reply. The facts leading to this case are that petitioner's husband died while in service and petitioner was provided appointment on compassionate ground on the post of LDC on 2/5/1991. According to petitioner, she applied for voluntary retirement vide application dated 31/5/2003 w.e.f. 4/6/2003. Upon application filed by petitioner for voluntary retirement, her service particulars were got verified by the Assistant Engineer (HTM-I), Jodhpur Vidyut Vitran Nigam Ltd., Jodhpur and forwarded information that no inquiry is pending against petitioner nor there is anything due against her, therefore, she was found eligible for voluntary retirement and finally her application was accepted on 4/6/2003. - 2 - According to petitioner she is entitled for pension and other retiral benefits like GPF gratuity, commutation and leave encashment under the provisions of RSEB Pension Rules, 1988. Further, after retirement all requisite forms were filled for getting the said retiral benefits but same were not paid to her. Upon inquiry petitioner was informed that her papers are under process and in the meanwhile she was made available the amount of leave encashment. The petitioner's daughter is of marriageable age, thus, she is facing hardship and despite making all possible efforts she failed to get the pension and other benefits. In these circumstances, as per petitioner, to avoid any kind of litigation, a notice for demand of justice was got served upon respondents through her counsel on 13/6/2006. Thereafter, petitioner preferred this writ petition and a prayer was made that respondents may be directed to provide all retiral benefits such as pension, gratuity, GPF, commutation etc. Upon filing the writ petition, this Court issued notices to the respondents and in reply it is pointed out by the respondents that application for voluntary retirement made by the petitioner was wrongly accepted as requisite years of qualifying service i.e. 15 years were not completed by the petitioner, therefore, competent authority after considering this aspect of the matter revoked the order of acceptance of voluntary retirement vide its - 3 - order dated 11.8.2003. The said order has been placed on record along with reply by the respondents as Annex.R/3. After perusing reply filed by the respondents, it was felt necessary by the petitioner to challenge the order Annex.R/3 dated 11/8/2003 because said order was not communicated to petitioner and in reply for the first time it has come to the knowledge of petitioner that earlier order for accepting voluntary retirement dated 4/6/2003 has been revoked as petitioner did not complete requisite period of qualifying service as per Regular 18(3) of Employees Service Regulation, 1964, therefore, an application was filed for amendment of writ petition, which was allowed and in amended writ petition order Annex.R/3 dated 11/8/2003 has been challenged on various grounds. Learned counsel for the petitioner argued that order impugned dated 11/8/2003 was never served upon the petitioner till filing of reply to writ petition. Further it is submitted that petitioner served with the respondent department since 1991 to 2003 and her application for voluntary retirement was accepted by the competent authority, thus she has become entitled for pension but unfortunately no retiral benefits are granted, which is violative of Article 300A of the Constitution of India. - 4 - According to the petitioner, pension is neither a charity nor bounty or grade but is a right of an employee under the Rules, therefore, statutory right cannot be snatched by the respondents which is to be paid for the past services rendered by an employee and to provide as a social welfare measure. Further it is submitted that employee after completion of 10 years of service becomes entitled for retiral benefits, therefore, application seeking voluntary retirement was filed by the petitioner which was accepted but later on as per respondent's contention vide order dated 11/8/2003 order of acceptance of voluntary retirement was revoked. According to the petitioner the order dated 11/8/2003 was not served upon her and for the first time it is brought to the notice of petitioner in reply to the writ petition that the order of acceptance of voluntary retirement was revoked vide order dated 11.8.2003. As per petitioner there was no ground left with the respondents to review the order of acceptance of voluntary retirement and there is no provision in the Regulation which empowers the Superintending Engineer (City) to review or revoke the order passed by him, therefore, order impugned is without jurisdiction. - 5 - It is further argued by learned counsel for the petitioner that while filing an application for voluntary retirement petitioner made true disclosure of all service particulars and there was no concealment or misrepresentation in her application for voluntary retirement so also application was processed in accordance with law and same was accepted vide Annex.P/2 dated 4/6/2003 and petitioner was also paid amount of leave encashment and she was assured by the respondents that her post retiral benefits will be finalized within stipulated time. But now in reply, for the first time, it is informed that order of acceptance of voluntary retirement dated 4/6/2003 has been revoked on 11/8/2003 because petitioner has not completed qualifying service, which is 15 years, at the time of filing application for voluntary retirement, therefore, according to Rules petitioner's application for voluntary retirement was wrongly considered and accepted by the department. According to counsel for the petitioner, for the mistake of respondents petitioner cannot be blamed and now the question of completing 15 years service has become academic because mistake of accepting voluntary retirement prior to 15 years cannot be attributed to the petitioner. Therefore, her application for voluntary retirement can now be accepted with effect from completion of 15 years service and petitioner is ready to accept the benefits of voluntary retirement from the date of completion - 6 - of 15 years of service and if such relief of pension is granted by the respondents then petitioner will not claim salary for the period from 5/6/2003 till the date of completion of 15 years of service. As per petitioner order of revoking order of acceptance of voluntary retirement was never served upon her and for this purpose record was also called and learned counsel for the petitioner has invited my attention towards para 6 of the reply in which it is accepted by the respondents that said order was not received by the petitioner, therefore, petitioner while inviting attention of this Court towards judgment rendered in S.B.Civil Writ Petition No. 2347/2003 (Smt. Saroj Gupta vs. State of Raj. & Ors.) decided on 11/12/2006 submitted that in that case also application for voluntary retirement was accepted and petitioner of that case did not complete 15 years of service but learned Single Judge of this Court has passed an order to treat the effect date of extending the benefits of voluntary retirement from the date when petitioner of that case completed 15 years of qualifying service. Further it is submitted that learned Single Judge in Smt. Saroj Gupta's case (supra) held that employee will not be entitled for any monetary benefits but that period will be counted notionally for the purpose of granting pension and shall be treated for reckoning the period falling short of qualifying - 7 - service. Lastly, learned counsel for the petitioner submitted that even if it is presumed that order of acceptance of voluntary retirement dated 4/6/2003 was revoked vide impugned order dated 11/8/2003, it was not communicated to her and neither petitioner was directed to resume her duties nor any disciplinary action was taken against her for willful absence from duty, therefore, at this juncture petitioner is claiming that while following the judgment rendered by this Court in Saroj Gupta's case (supra), petitioner may be granted pensionary benefits while quashing the order revoking acceptance of voluntary retirement while treating petitioner in service w.e.f. 5/6/2003 till the date of completion of 15 years of service notionally. Per contra, learned counsel for the respondents submitted that for accepting the voluntary retirement application as per Regulation of respondent department, the principal condition is that employee should have completed 15 years of service but in this case erroneously application filed by petitioner for voluntary retirement was accepted vide order dated 4/6/2003 even though petitioner has not completed 15 years of service as she was appointed on 2/5/1991 on compassionate ground, therefore, obviously, on 4/6/2003 she had completed only 12 years of - 8 - service which is less than 15 years, therefore, it was found necessary by the competent authority to revoke the order dated 4/6/2003 whereby, application for voluntary retirement was accepted. Therefore, order Annex.R/3 dated 11.8.2003 is in consonance with Regulation 18(3) of the Employees Service Regulation, 1964, whereby, period of qualifying service for accepting voluntary retirement is provided. Learned counsel for the respondents vehemently argued that petitioner herself is responsible for not receiving the order dated 11/8/2003 because she was not available at her residential address when said order was sent to her, therefore, respondents cannot be blamed for non-furnishing the order dated 11/8/2003. After hearing both the parties and considering the entire record of the case, it is an admitted position that as per Regulation of respondent department, the principal condition for accepting the voluntary retirement is that employee should have completed 15 years of qualifying service. Admittedly, petitioner has not completed requisite number of qualifying service on 4/6/2003 when her application for voluntary retirement was accepted. It is also admitted fact that order dated 4/6/2003 remained in existence till 11/8/2003. - 9 - It is true that no concealment was made by the petitioner nor any misrepresentation was made by the petitioner at the time of filing application for voluntary retirement, more so, his voluntary retirement application was accepted after due verification by the department which is evident from Annex.P/2. As per Annex.P/2, the S.E. (City) has passed the order while exercising power conferred under Regulation 18(3) of Employees Service Regulation, 1964 and Erstwhile Board's Order dated 15/3/2000 but later on vide impugned order dated 11/8/2003, earlier order dated 4/6/2003 was revoked. Meaning thereby, order of revocation was made in accordance with Rules but at the same time as per reply of respondents in para no.6 the said order was not served upon the petitioner till filing the writ petition before this Court. In my opinion, an order which is not served upon an employee cannot be treated to be given effect in view of the judgment rendered by Constitutional Bench of Hon'ble Apex Court reported in AIR 1966 SC 1313 (State of Punjab vs. Amar Singh Harika). Relevant para 11 of the aforesaid judgment reads as under:- “11.The first question which has been raised before us by Mr.Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the - 10 - said order must be deemed to have been taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention but Mr. Bishan Narain contends that the view taken b the High Court is erroneous in law. We are not impressed by Mr.Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably - 11 - arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period, but that does not change the position that if the officer concerned is not suspended during the period of inquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned of otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working land holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May, 1951.” Bare perusal of above judgment, more specifically para 11 - 12 - makes it abundantly clear that as per verdict of Hon'ble Apex court even though order is passed it is the duty of the employer to communicate and serve the said order upon the employee. Such an order can only be made effective after it is communicated to officer concerned or is otherwise published. In this case also, according to facts of the case, the order or revocation was not received by the petitioner, so also after passing of the order impugned dated 11/8/2003 petitioner was not asked to join her duties, therefore, in my opinion, in the interest of justice order of revocation deserves to be set aside but at the same time petitioner cannot claim reinstatement and upon peculiar facts of this case for the purpose of granting pensionary benefits to the petitioner, I deem it just and proper to direct the respondents to treat the effective date of acceptance of voluntary retirement of petitioner from the date when she completed 15 years of qualifying service while treating the period w.e.f. 5/6/2003 to the date of completion of 15 years notionally in service, and petitioner may be allowed pension. In these circumstances, while following the judgment of this Court in Saroj Gupta's case (supra) and Hon'ble Apex Court in case of Amar Singh Harika (supra), the writ petition is allowed. Order Annex.R/3 dated 11/8/2003 is set aside and - 13 - respondents are directed to give effect to the order of acceptance of voluntary retirement dated 4/6/2003 w.e.f. the date when petitioner completed 15 years qualifying service and period commencing from 5/6/2003 till she completes 15 years shall be treated in service for the purpose of reckoning the period of qualifying service while treating the petitioner in service notionally. Further respondents are directed to grant retiral benefits to the petitioner which are available upon voluntary retirement after completion of 15 years of service. It is also made clear that petitioner will not be entitled for salary for the period commencing from 5/6/2003 to completion of 15 years of service. The retiral benefits including arrears of pension after completion of 15 years of service shall be released within a period of three months from the date of receipt of certified copy of this order. (GOPAL KRISHAN VYAS),J. Pankaj Baweja