HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 25501 OF 2002 . DATED 7th September, 2011 BETWEEN P.V.Subba Rao …Petitioner And A.P. Power Generation Corporation Limited (AP.GENCO) Rep. by its Chairman and Managing Director, Hyderabad and anr. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 25501 of 2002: ORDER: The action of the respondents in issuing proceedings dated 16.12.2002 permitting to retire the petitioner from service with effect from 31.12.2002 based on his representation dated 30.11.2002 ignoring his withdrawal representation dated 16.12.2002 is under challenge. The petitioner was appointed as a Junior Assistant in the erstwhile A.P. State Electricity Board in the year 1968 and after earning several promotions, he became Assistant Secretary in the year 2001.Whie so, the petitioner submitted a representation on 30.11.2002 to the first respondent seeking necessary permission to retire from service voluntarily with effect from the afternoon 28.02.2003. By then the petitioner has still two years service for attaining the age of superannuation. However, after submission of the representation dated 30.11.2002 seeking voluntary retirement from service with effect from 28.2.2003, the petitioner has submitted another representation dated 16.12.2002 requesting the first respondent to treat the said representation dated 30.11.2002 as withdrawn on the ground that the circumstances under which he earlier opted for voluntary retirement had improved and that he would like to continue in service. But the respondents have served the impugned order dated 16.12.2002 on 18.12.2002 permitting the petitioner to retire from service voluntarily with effect from 31.12.2002. It is the grievance of the petitioner that after receipt of the representation dated 16.12.2002 whereby he sought to withdraw her earlier representation dated 30.11.2002, the respondents seem to have passed the impugned order with an anti date permitting him to retire from service voluntarily with effect from 31.12.2002 A.N.. Thereupon he submitted another representation dated 21.12.2002 requesting to consider his earlier representation dated 16.12.2002 and sought permission to continue in service which was not considered and disposed of. At the time of admission of this Writ Petition on 30.12.2002, this Court while declining to grant relief directing the respondents to continue the petitioner till the date of attaining the age of superannuation, directed the respondents not to recover the dues from the petitioner. In response to the notice issued by this Court, the respondents have filed counter. It is stated in the counter that the representation of the petitioner dated 30.11.2002 seeking voluntary retirement was accepted by the competent authority on 14.12.2002 and the same was intimated to the petitioner through proceedings in G.O.O.No.552/GM(A)/2002 dated 16.12.2002.. They have denied the averment of the petitioner that the said proceedings were issued with ante date. It is further stated that when once an employee had exercised his option to retire from service voluntarily and given such intimation to his appointing authority, he shall be precluded from withdrawing the same subsequently except with the specific approval of such authority, but the petitioner did not seek any approval from the competent authority as such. Heard both sides. Perused the case file. Admittedly the petitioner has submitted representation dated 30.11.2002 seeking permission to retire from service voluntarily with effect from 28.02.2003 AN. On receipt of the said representation, the competent authority was said to have accepted his request on 14.12.2002 and permitted him to retire from service voluntarily with effect from 31.12.2002 AN through the impugned order dated 16.12.2002 which was said to have been served on the petitioner on 18.12.2002. That being so, the petitioner had submitted another representation dated 18.12.2002 seeking withdrawal of his request to go on voluntary retirement and seeking permission to continue in service till attaining the age of superannuation. It is to be seen in this regard that when once an employee had exercised his option to retire from service voluntarily and given the necessary intimation to that effect to the appointing authority, such employee is precluded from withdrawing his option subsequently except with the specific approval of such authority. In the case on hand, there is no such approval of the competent/appointing authority accepting the withdrawal of his request for voluntary retirement. The question as to whether the Government servant, who opted to resign from service, subsequently resile therefrom fell for consideration before the Supreme Court in Balaram Gupta v. Union of India (AIR 1987 SC 2354.) In Paragraph No. 8, the Supreme Court has dealt with the question in the following manner: “The facts, therefore, are that the Appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the Appellant his resignation would have been effective, if accepted, only from 31st March, 1981. Before the resignation could have become effective the Appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the Appellant, the date the resignation could have been effective. In the meantime, however, prior thereto on the 20th of January, 1981 the Respondent has purported to accept the resignation with effect from 31st March, 1981. The appropriate rule Sub-rule (4) of Rule 48-A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done. The approval of the authority was, however, not given. Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority. (emphasis is mine) Having said so, the Supreme Court proceeded to observe as under in Paragraph No. 9: What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. (emphasis is supplied) In Paragraph Nos. 11 and 12, their Lordships went on to explain the rationale behind the rule requiring prior approval of the competent authority for withdrawing the request of cessation of employment in the following words: It may be a salutary requirement that a Government servant cannot withdraw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether Sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is that the Appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the Appellant had a second look at the matter.... In this case the guidelines are that ordinarily permission should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The Appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If. however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the Appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or arrangement was affected. (emphasis is added) The ratio laid down in Balaram Gupta's case supra has consistently been followed by the Supreme Court in Punjab National Bank v. P.K. Mittal: (1989) Supp (2) SCC 175, Power Finance Corporation Limited v. Pramod Kumar Bhatia (1997) 4 SCC 280, Shambu Murari Sinha Vs. Project and Development India and Anr (2000) 5 SCC 621 and in Srikantha S.M. v. Bharath Earth Movers Limited (2005) 8 SCC 314. In Vice-Chairman and Managing Director, A.P.SIDC Ltd. and Anr. v. R.Varaprasad and ors AIR 2003 SC 4050, the Supreme Court held that “.... when the employees have opted for VRS' on their own without any compulsion knowing fully well about the Scheme, guidelines and circulars governing the same, it is not open to them to make any claim contrary to the terms accepted. It is a matter of contract between the Corporation and the employees. It is not for the courts to rewrite the terms of the contract which were clear to the contracting parties, as indicated in the guidelines and circulars governing them under which Voluntary Retirement Schemes floated. While considering the earlier decision of Hon'ble Supreme Court in O.P. Swarnakar and other decisions, the Apex Court held that unlike in those decisions these respondents filed applications offering to take voluntary retirement under the Scheme; their applications were accepted by the Corporation which were acknowledged by these respondents; they made representations for withdrawal from the VRS Scheme several days after the Corporation accepted their applications made seeking voluntary retirement; merely because they could not be relieved in view of the interim order passed by the High Court in the writ petitions and that they could not be relieved immediately after the cut-off date for want of funds to be received from the Government by the Corporation, they could not take away the result or escape the consequences of the acceptance of their voluntary retirement by the Corporation. In other words, question of withdrawal of their applications made for seeking voluntary retirement after their acceptance did not arise and they could not be permitted to do so in law. It is fairly settled now that the voluntary retirement once accepted in terms of the Scheme or rules, as the case may be, cannot be withdrawn. ………..……..” Though the A.P. Revised Pension Rules 1980 stipulates that a notice of three months is required to be given in advance to an employee who is desirous to go on voluntary retirement to make a substantive appointment and not to cause any administrative inconvenience or dislocation of work, but it is to be seen that the respondent authority themselves stated specifically that there is no any dislocation of work pursuant to the retirement of the petitioner with effect from 31.12.2002 AN. From the aforesaid discussion, I have no hesitation to hold that the acceptance of voluntary retirement of the petitioner from service pursuant to his representation dated 30.11.2002 is justified and does not call for any interference. If the petitioner is entitled to be paid any retirement benefits, due and payable to him pursuant to his voluntary retirement, the same shall be paid by the respondents to him within a period of four weeks from the date of receipt of a copy of this order. Subject to the above direction, the Writ Petition is disposed of. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 7th September, 2011. Msnro