1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No.9250 of 2008 Date of decision: 28.12.2010 ________________________________________________________________ S.R. Rajta. .....Petitioner. Versus Dr. Y.S. Parmar University. .....Respondent. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Ms. Ranjna Parma, Advocate. For the respondent : Mr. Onkar Jairath, Advocate. V.K. Sharma, J. (Oral). The petitioner, at the relevant time i.e. on or about 23.8.2002, was working as Senior Assistant (Ad hoc) on the establishment of the respondent-university. Vide confidential communication dated 19.8.2002, Annexure A-1, some adverse remarks were conveyed to the petitioner pertaining to his Annual Confidential Report (ACR) for the year 2001-2002. Consequently, the petitioner submitted representation dated 17.9.2002, Annexure A-2, for expunction of such remarks, which lateron were came to be expunged vide confidential letter dated 31.10.2002/1.11.2002, Annexure A-5. However, in the mean time being disgusted by the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 aforesaid remarks in his ACR, the petitioner vide letter dated 23.8.2002, Annexure A-3 made a request for voluntary retirement on and w.e.f. 28.2.2003, which was allowed vide notification dated 23.10.2002. However, before the request for voluntary retirement was to take effect on 28.2.2003, the petitioner pursuant to expunction of the aforesaid adverse remarks in his ACR vide letter dated 17.2.2003, Annexure A-6, withdrew the request for voluntary retirement which did not find favour with the respondent-university on the ground that “since there is no substantial change in the circumstances which led him to seek voluntary retirement from University services w.e.f. 28.2.2003”. 2. Against the above back drop, the petition has been filed on the following prayer: “(i) The impugned order at Annexure A-3 and A-7 may kindly be quashed and set aside and the applicant may be allowed to continue as Senior Assistant or any other higher post for which he is entitled till he attains the age of superannuation with all consequential benefits.” 3. In reply on behalf of respondents, the following stand has been taken by way of preliminary objections: “1. That out of 32 years and 6 months of the services of the applicant upto 14.10.1997, the applicant remained for 16 years, 4 months and 3 days on different kind of leave, under suspension and willfully absent from duty which was regularized by granting him leave of kind due from time to time ( i.e., (i) 785 days earned leave, half pay leave and commuted leave; (ii) 1219 days 3 Extra-ordinary leave; (iii) Suspension period from 19.6.1978 to 15.12.1984 ( 6 years and six months) was treated as on duty and (iv) willful absence period of 4 years, 4 months and 4 days from 10.l6.1993 to 14.10.1997 was regularized by granting leave of kind due which actions itself exemplify the work and conduct of the applicant. 2. That the applicant committed different types of misconducts and misbehaviour during his service tenures. The applicant was awarded penalty after two departmental inquiries which did not commensurate with the gravity of his misconduct as observed by the Board of Management of the respondent University in its 59th meeting held on 24.7.2002. 3. That the notice of the applicant for the voluntary retirement from 28.2.2003 from the university service was accepted on the grounds of his entire service record and different mis conducts and misbehaviour committed by him in his service tenure. 4. That the date of birth of the applicant is 17.4.1947 and even otherwise he has completed 55 years of service in the respondent University as on 16.4.2002. He will retire on superannuation from University service on 30.4.2007 after attaining the age of 60 years in terms of Statute 7.2(ii) of the respondent University. The applicant joined the service as Clerk on 12.4.1965 in the Deptt. of Agriculture, HP. ” 4. Admittedly, consequent upon the rejection of the prayer of the petitioner for withdrawal of the request for voluntary retirement vide aforesaid memorandum dated 8.2.2003, Annexure 4 A-7, he had filed OA No.416 of 2003, before the erstwhile H. P. State Administrative Tribunal ( since abolished), the following order was passed on 27.2.2003, when the matter was under adjudication before the said Tribunal : “27.2.2003 Present : Mrs. Ranjana Parmar, Advocate, for the applicant. Notice be issued to the respondents to file reply within six weeks. List thereafter. The case of the applicant is that on receipt of adverse remarks the applicant submitted an application seeking voluntary retirement effective from February 28, 2003.However, in the mean while adverse remarks were expunged vide Annexure-A/5 dated November, 1, 2002 and the applicant thereafter submitted another application to respondent No.2 withdrawing his request for voluntary retirement on account of expunction of adverse remarks. This application was however, rejected vide Annexure-A/7 dated February 8, 2003 by respondent No.2. Applicant was informed that there was no substantial change in the circumstances which had led the applicant in seeking voluntary retirement w.e.f. February 28, 2003 and hence the request to withdraw voluntary retirement could not be considered. The learned counsel for the applicant has argued that the operation of Annexure-A/7 be stayed till further orders till the matter is decided on merits. The learned counsel has cited judgment of the Hon'ble Apex Court in the case of Nand Keshwar 5 Prasad versus Indian Farmers Fertilizers Co- operative Ltd. And Others (1998)5 SCC 461 wherein it has been held that withdrawal of voluntary retirement/resignation is permissible before it becomes effective. In the present case the requests for voluntary retirement was to take effect from February 28, 2003 and as such the operative of Annexures-A/4 and A/7 is stayed till further orders. 'Dasti Copy'” 5. Thus, admittedly operation of the impugned notification dated 23.10.2002, Annexure A-4, and impugned memorandum dated 8.2.2003, Annexure A-7, was stayed by the Administrative Tribunal pursuant to which the petitioner continued in the employment of the respondent-University till his retirement on attaining the age of superannuation on 30.4.2007. 6. Thus, in essence both the impugned notification, Annexure A-4 and impugned memorandum Annexure A-7 remained in limbo pursuant to the aforesaid order of the Administrative Tribunal dated 27.2.2003. Even otherwise it has been held by the Hon'ble Supreme Court in Nand Keshwar Prasad versus Indian Farmers Fertilizers Cooperative Ltd. And others, (1998)5, Supreme Court Cases 461 that “ it is open to the employee concerned to withdraw letter of resignation before the same becomes effective”. Para 11 of the judgment being relevant is extracted below for ready reference: “11. After giving our careful consideration to 6 the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court that it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.” 7. In view of the above, the petition is allowed and consequently notification dated 23.10.2002, Annexure A-4 and memorandum dated 8.2.2003, Annexure A-7, are quashed with all the ensuing consequences leaving the parties to bear their own costs. 8. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 28th December, 2010 (jai)