SCA/25840/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25840 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== D C PATEL Versus STATE OF GUJARAT & others ====================================== Appearance : Mr. I.S. Supehia for the petitioner Mr. Apurva Dave, AGP, for respondent Nos. 1 and 2 Mr. H.S. Munshaw for respondent No.3 ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 11/04/2008 ORAL JUDGMENT 1 This petition under Article 226 of the Constitution of India is filed by the petitioner seeking a direction to the respondents to pay all retiral SCA/25840/2007 2/7 JUDGMENT benefits including provident fund, pension, gratuity, commuted pension, leave encashment, group insurance amount with effect from 1st October 2007 with 12% interest. 2 It is the case of the petitioner that, initially, the petitioner joined the service on 5th July 1984 as Assistant Engineer and subsequently he was promoted to the post of Deputy Executive Engineer on 7th December 1990 till the date on which he submitted an application for voluntary retirement on 25th June 2007, when he completed requisite 20 years of service, invoking the provisions of Rule 48 of the Gujarat Civil Services [Pension] Rules 2002 [for short, 'the Rules']. Accordingly, on 25th June 2007, the petitioner submitted the application for voluntary retirement to claim the benefit of the Rule 48 of the Rules to the Head of the Department, namely, respondent No.3 as well as the Appointing Authority, i.e. respondent No.1. However, the petitioner received letter dated 17th July 2007 from the Office of respondent No.1 that the application was not forwarded to respondent No.1 through proper channel, namely, the Head of the Department, and, therefore, at that stage, nothing further was to be considered. Later on, the petitioner informed the State Government by letter dated 31st July 2007 that he submitted the notice for voluntary retirement under Rule 48 of the Rules on 25th June 2007 through the Director, District Vikas Agency, and an advance copy was also sent to the State Government to permit him to retire with effect from 30th September 2007 on completion of 90 days. Thereafter, since no order was received, he requested the Authorities to process his pension papers as if the application of the petitioner is accepted for VRS in view of the proviso to Rule 48, which provides: “where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period SCA/25840/2007 3/7 JUDGMENT i.e. the period of 90 days”. 3 Shri Supehia, learned counsel for the petitioner, has submitted that, since permission to retire was not refused before 30th September 2007, the petitioner stood retired voluntarily after the office hours on 30th September 2007. He has relied on the decision of this Court in the case of B.G. Patel vs. State of Gujarat and others, reported in 2008 [1] GLH 181, and submitted that, in the similar set of facts and circumstances, the learned single Judge of this Court allowed the petition and declared that the petitioner stood retired from the date of expiry of three months from the date of the application and further directed the respondents to process pension papers of the petitioner and, thus, he claims similar relief in this petition also. 4 Learned Assistant Government Pleader for respondent Nos. 1 and 2 and the learned counsel appearing for the District Panchayat have placed heavy reliance on the letter dated 17th July 2007 addressed by the State Government informing the petitioner that his application for voluntary retirmeent dated 24th June 2007 was no more to be processed since it was not submitted through proper channel, namely, Head of Department and, therefore, according to the learned advocates for the respondents, the reply was already given to the petitioner that his application was not accepted by them. It is further contended that a departmental enquiry was pending against the petitioner, and, instead of repeated reminders, the petitioner failed to resume duties and absented himself from the duty. It is further submitted that, by order dated 6th October 2007, the petitioner has been stepped down by two stages in his present pay-scale with future effect and another enquiry is pending against the petitioner pursuant to charge sheet dated 10th March 2006. Therefore, according to them, no case is made out to exercise power by SCA/25840/2007 4/7 JUDGMENT this Court under Article 226 of the Constitution of India. 5 Heard learned advocates for the parties and perused the record including the affidavit in reply and the relevant Rules governing the subject matter. Rule 48 of the Rules reads as under: “Rule 48. Retirement on completion of twenty years' qualifying service [1] A Government employee on completion of twenty years' qualifying service, may, by giving notice of not less than three months in writing to the appointing authority, retire from service. [2] The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority. Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. [3] The qualifying service as on the date, of intended retirement of the Government employee retiring under this rule shall be increased by a period of not exceeding five years, subject to the condition that the total qualifying service rendered by the Government employee does not in any case exceed thirty years. Provided that the total qualifying service after allowing the increase under this sub-rule shall not exceed the qualifying service which the Government employee would have had, if he had retired voluntarily at the lowest age limit for voluntary retirement prescribed under sub-rule (5) of rule 10. (4)(a) A Government employee referred to in sub-rule (1) may make a request in writing, to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons thereof; [b] On receipt of a request under clause (a), the Head of Department in case of Class-IV employee and the Head of Administrative Department concerned in case of other employees, subject to the provisions 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 there is no departmental inquiry pending or contemplated against the Government employee, may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of SCA/25840/2007 5/7 JUDGMENT three months. [5] A Government employee, who has elected to retire under this rule and has given the notice to that effect as required under these rules to the appointing authority, shall not be allowed to withdraw such notice except with the approval of the appointing authority. Provided that the request for withdrawal of notice shall be made before the intended date of his retirement. [6] The pension and death-cum-retirement gratuity of the Government employee retiring under this rule shall be based on the pay as defined under rule 9(53) read with rule 43 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation or addition of pay for the purposes of calculating pension and gratuity [7] This rule shall not apply to a Government employee who retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation -1: For the purpose of this rule the expression 'appointing authority' shall mean the authority which is competent to make substantive appointment to the service or post from which the Government employee seeks voluntary retirement. Explanation 2: Qualifying service of twenty years referred in sub-rule (1) means qualifying service excluding the notional service added under sub-rule (3) and also extra ordinary leave sanctioned in the entire service of an employee.” 6 As per the above Rule, upon completion of 20 years of qualifying service, the Government employee is entitled to submit an application by giving notice of not less then three months in writing to the competent authority and sub-rule (2) provides acceptance of such notice of voluntary retirement by the appointing authority. However, the proviso to the above Rule clearly mentions that if the appointing authority refused to grant permission for voluntary retirement before the expiry of period specifically in the said notice, retirement shall become effective from the date of expiry of the said period. In light of the above provisions of Rule 48, the facts of the present case are required to be SCA/25840/2007 6/7 JUDGMENT examined. 7 The petitioner had given notice/application to the appointing authority and also to the Head Of Department on 25th June 2007 indicating his desire to retire voluntarily in view of the provisions of Rule 48. The period prescribed by the petitioner fulfilling the conditions laid down in sub-rule (1) of Rule 48 is of three months and the application was given in writing. What transpires from the record is that the letter dated 17th July 2007 addressed to respondent No.1 only indicates that the application was not received by respondent No.1 through proper channel, namely, the Head of Department and, therefore, at that stage, the said application was not to be processed any more. In fact, in the affidavit in reply filed by the Under Secretary, Road & Building Department, State of Gujarat,clearly admits that the Head of Department had Director, DRD, Amreli, vide letter dated 15.11.2007 has informed that, by mistake, a mention was made about receipt of application submitted by the petitioner for voluntary retirement on 28th July 2007 in his office, but, on verification, it was found that the said application was received on 27th June 2007 in his office. Therefore, the fact remains that the application for voluntary retirement of the petitioner was received on 27th June 2007 in the Office of the DRDA, i.e. the Head of Department and, therefore, the contention of respondent No.1 that the petitioner was conveyed that the application dated 17.7.2007 for voluntary retirement was not required to be considered on the lacuna that it was not forwarded through proper channel and the said communication/reply amounts to refusal within the prescribed period of three months, i.e. prior to 30th September 2007, has no substance and it cannot be said to be 'refusal' in terms of proviso to sub-rule (2) of Rule 48 of the Rules. 8 Perusal of the record does not reveal that the petitioner was at SCA/25840/2007 7/7 JUDGMENT fault at any stage. On the contrary, it is an admitted position that both the parties, namely, appointing authority as well as Head of Department did receive the application of the petitioner dated 25th June 2007 within time limit. If any delay is caused in forwarding application of voluntary retirement submitted by the petitioner by DRDA, Amreli, respondent No.2, i.e. appointing authority, and no decision was taken on or before the expiry of period of three months i.e. 30th September 2007, the benefit accrued to the petitioner vide proviso to sub-rule (2) of Rule 48 of the Rules cannot be denied. 9 Even otherwise also, the contention with regard to pendency of inquiry is concerned, by filing additional affidavit, the learned counsel for the petitioner has produced the order dated 2nd February 2008 which reveals punishment is already implicated for stoppage of two increments for a period of two years without future effect. The decision relied upon by the learned counsel for the petitioner in the case of B.G. Patel [supra] is squarely applicable to the facts of the present case and indecisiveness on the part of the respondents-Authorities and the delay caused by the Head of Department, Director, DRDA, Amreli, has resulted into conferring benefit to the petitioner under sub-rule (2) of Rule 48 of the Rules. 10 As a result of foregoing discussion, this petition is allowed. It is declared that the petitioner stood voluntarily retired with effect from 30th September 2007. The respondents are directed to process pension papers of the petitioner and determine other retiral dues as claimed by the petitioner in the prayer clause, within three months from the date of receipt of writ of this order. Rule is made absolute with no order as to costs. (ANANT S. DAVE, J.) (swamy)