IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 29674 of 2008(G) ---------------------------------- PETITIONER(S): ------------------- DR.K.S.RADHAKRISHNAN AGED 53 YEARS S/O.LATE K.A.SUKUMARAN,.R/AT.KALLUMADATHIL HOUSE SOUTH CHITTOOR, ERNAKULAM, VICE CHANCELLOOR TO SREE SANKARA UNIVERSITY OF SANSKRIT, KALADY. BY ADV. SMT.SARITHA DAVID CHUNKATH RESPONDENT(S): -------------------- 1. DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM. 2. SENIOR ADMINISTRATIVE ASSISTANT DIRECTORATE OF COLLEGE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. STATE OF KERALA,. REP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI.N.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, ALONG WITH WPC NO. 1411 OF 2009 THE COURT ON 21/10/2010 DELIVERED THE FOLLOWING: SVS/ WP(C).No. 29674/2008(G) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION DATED 07/12/2004 APPOINTING THE PETITIONER. P2: COPY OF GOVERNMENT ORDER DATED 28/04/2005 FIXING THE TERMS AND CONDITIONS OF SERVICE. P3: COPY OF THE COMMUNICATION DATED 11/04/2008 INTIMATING PETITIONER'S INTENT TO TAKE VOLUNTARY RETIREMENT. P4: COPY OF THE COMMUNICATION DATED04/10/2007. P5: COPY OF THE COMMUNICATION DATED 05/10/2007. P6: COPY OF THE GOVERNMENT ORDER DATED 05/04/2008. P7: COPY OF THE ORDER DATED 24/07/2008. P8: COPY OF THE COMMUNICATION DATED 03/09/2008. P9: COPY OF THE COMMUNICATION DATED 16/07/2008 P10: COPY OF THE COMMUNICATION DATED 24/07/2008 P11: COPY OF THE COMMUNICATION DATED 16/10/2008 SENT ON BEHALF OF THE HON'BLE CHANCELLOR TO THE PETITIONER. P12: COPY OF THE GOVERNMENT LETTER DATED 29/09/2008 FORWARDED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT TO THE HON'BLE CHANCELLOR. P13: COPY OF THE REPLY DATED 22/10/2008 TO EXHIBIT P 11 COMMUNICATION. P14: COPY OF THE NOTE DATED 08/08/2008. P15: COPY OF THE OPEN LETTER BY THE PETITIONER TO THE HON'BLE MINISTER FOR EDUCATION PUBLISHED IN MALAYALA MANORAMA DATED 07/08/2008. P16: COPY OF THE GOVERNMENT ORDER DATED 27/09/2008. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE SVS/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.29674/2008-G & 1411/2009-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2010. JUDGMENT The petitioner herein was the Vice Chancellor of Sree Sankaracharya University of Sanskrit, Kalady. He was in the service of Government Collegiate Department since 1.6.1983 and his appointment was regularised vide order dated 2.8.1983 of the Director Collegiate Education. He was appointed as Reader by order dated 29.10.2002 of the Director of Collegiate Education. The documents are referred to as produced in W.P. (C) No.1411/2009. 2. As per Ext.P1 notification dated 7.12.2004 the petitioner was appointed as the Vice Chancellor of the above University with effect from 10.12.2004 and the period was to expire on 9.12.2008. Ext.P4 is the communication dated 4.10.2007 addressed to the Director of Collegiate Education intimating that he would like to voluntarily retire from service with effect from 9.12.2008 from the University in the present cadre and further requesting to take necessary steps to transfer his service in Collegiate Education Department and remit the required pension contribution to the University. Ext.P5 is the letter addressed by the wpc 29674/2008 & 1411/2009 2 Registrar of the University to the Director of Collegiate Education, forwarding Ext.P4 further requesting to pass appropriate orders on the petitioner's request. The Government by Ext.P6 order dated 5.4.2008 accorded sanction for the remittance of Rs.16,76,127/- with simple interest at the rate of 5% from the date of acquittance to the date of remittance. Ext.P7 is the further communication issued by the Director of Collegiate Education according sanction for payment of Rs.19,55,481/-, i.e. Rs.16,76,127/- as pro-rata pension + Rs.2,79,354/- as interest in respect of the petitioner. Sanction was accorded to draw the amount from the District Treasury Trivandrum and to pay the amount by way of Demand Draft drawn in favour of Finance Officer of the University. 3. Subsequently the Government by Ext.P9 letter, directed the petitioner to approach the Chancellor by forwarding the representation, for the orders of the Chancellor who is the appointing authority of the Vice Chancellor and accordingly the petitioner forwarded a request as Ext.P10. Later, the Chancellor by Ext.P11, along with the Government Letter dated 29.9.2008, replied to the petitioner directing him to approach the parent department for seeking voluntary retirement. Ext.P12 is the said letter addressed by the Principal Secretary to Government to the Deputy wpc 29674/2008 & 1411/2009 3 Secretary, Governor's Secretariat wherein the Government has taken the stand that as the appointment of the petitioner is on deputation, the parent department will have to examine the matter. Even prior to that, the petitioner had approached this Court by filing W.P.(C) No.29674/2008 seeking for a direction to disburse the amounts as sanctioned, within a specified time limit. The writ petition was amended later, when Ext.P12 proceedings were issued wherein the Government took the view that it is for the parent department to deal with the matter. 4. Subsequently, the Government passed an order whereby the order sanctioning pro-rata pension was set aside. Ext.P16 produced in W.P.(C) No.1411/2009 is the order passed by the Government cancelling Ext.P6 order. After the date 9.12.2008 was over, the Director of Collegiate Education issued a communication Ext.P18 dated 2.1.2009 requesting the petitioner to report for duty in the Department of Collegiate Education. It is in these circumstances the petitioner has filed W.P.(C) No.1411/2009 seeking for various reliefs. 5. Mainly it is prayed that a declaration may be granted that the voluntary retirement exercised by the petitioner has taken effect with effect from 9.12.2008. wpc 29674/2008 & 1411/2009 4 6. In W.P.(C) No.1411/2009 this Court passed an interim order dated 14.1.2009 staying all further proceedings pursuant to Ext.P18 which stands extended until further orders on 27.8.2009. 7. Heard the learned counsel for the petitioner and learned Govt. Pleader appearing for the respondents. 8. Learned counsel for the petitioner mainly contended that the notice given by the petitioner to voluntarily retire from service was well in time. The same is under Rule 56 of Part III K.S.R. Going by sub-rule (iv) of Rule 56 and the proviso therein, the voluntary retirement of an employee shall become effective on the date on which he wishes to retire from service as specified in the notice, if no refusal is communicated to him. Herein, as the refusal was never communicated, it has become effective from 9.12.2008. Therefore, the proceedings issued requesting the petitioner to rejoin duty, as per Ext.P18 cannot be supported. Reliance is placed on the decisions of the Apex Court in Dinesh Chandra Sangma v. State of Assam and others (AIR 1978 SC 17) and Tek Chand v. Dile Ram {(2001) 3 SCC 290} and that of a Division Bench of this Court in Venugopal v. State of Kerala (2010 (2) KLT 111). It is also pointed out by the learned counsel for the petitioner that the petitioner was asked to wpc 29674/2008 & 1411/2009 5 approach the Chancellor by the Government itself. Subsequently, the said stand has been changed by the Government by making it clear that it is for the parent department to take action. Ultimately, the application was never refused. It is also pleaded that the orders cancelling the sanction earlier given to remit Rs.19,55,581/- to the University, is issued without notice to the petitioner and hence the same is bad in law. 9. Learned Govt. Pleader mainly contended that as the petitioner was on deputation, the Government could have granted permission to voluntarily retire, only after the petitioner joins duty. It is therefore pointed out that as the Chancellor is not the appointing authority, the parent department alone could have taken action in the matter and only after rejoining duty any action could have been taken. Therefore, it is pointed out that it was obligatory on the part of the petitioner to rejoin duty and the challenge against Ext.P18 is not sustainable. 10. Certain subsequent developments, also will be relevant here. Going by the counter affidavit, the date of birth of the petitioner is 3.10.1954. The date of superannuation is 31.10.2009 and the date of retirement is 31.3.2010. Therefore, at this stage the direction to report back to duty cannot obviously be implemented. Learned counsel for the wpc 29674/2008 & 1411/2009 6 petitioner submitted that the petitioner is not interested also in reckoning the period from 9.12.2008 till 31.3.2010 as service and he sticks to the stand that in the light of the refusal to grant permission, he should be deemed to have been retired from service on 9.12.2008. Accordingly it is prayed that a direction may be issued to disburse the pensionary benefits without further delay. 11. The whole question turns upon the effect of the relevant rules considered by a Division Bench of this Court in Venugopal's case (2010 (2) KLT 111). The scheme under Rule 56 of Part III K.S.R. shows that a person who has got the qualifying service of 20 years, can give notice in writing to retire at least three months before the date on which he wishes to retire. Going by sub-rule (iv), voluntary retirement shall become effective on the grant of permission to retire by the authority competent to make appointment to the post. The proviso therein is important here. If the authority to make appointment to the post does not refuse to grant permission for retirement before the date on which the employee wishes to retire specified in the notice under clause (i), the retirement shall become effective from the date specified in the notice. Sub-rule (v) provides that “permission to retire shall be given in all cases except those in which wpc 29674/2008 & 1411/2009 7 disciplinary proceedings are pending for imposition of a major penalty,” etc. etc. 12. In the decision of the Apex Court in Dinesh Chandra Sangma's case (AIR 1978 SC 17), which arose from Rules 56(b) and 56(c) of Assam Fundamental Rules, it was held that the sub rule gives a right to the Government servant to voluntarily retire from service by giving the Government three months notice in writing. In Venugopal's case (2010 (2) KLT 111), this Court considered the question in the light of various decisions of the Apex Court. It was held that Rule 56(iv) and proviso binds the employer and employee. The legal position was laid down thus in para 6: “The proviso to R.56(iv) comes into operation on the date notified by the employee as the date on which he wishes to retire as specified in the notice under clause (i). The effect of the proviso is that unless the authority competent to make appointment to the post refuses to grant permission for retirement before the date on which the employee wishes to retire as specified in the notice under clause (i), the retirement shall become effective from the date specified in the notice. The said provision is clear and categoric. It is part of the statutory rules made by the State in exercise of authority under the Kerala Public Services Act, 1968, germinating from the Constitution. It is a rule which binds the employer and the wpc 29674/2008 & 1411/2009 8 employee.” 13. Therefore, going by the said dictum, in the light of the proviso to Rule 56(iv), unless the authority competent to make appointment to the post refuses to grant permission for retirement before the date on which the employee wishes to retire as specified in the notice, the retirement shall become effective from the date specified in the notice. Learned counsel for the petitioner therefore submitted that the petitioner will be deemed to have been retired from service from 9.12.2008. The Bench in the above decision, relied upon an earlier decision of the Apex Court in State of Haryana v. S.K. Singhal {(1999) 4 SCC 293}. In the said decision, the Apex Court examined a similar question in the light of the positive provision similar to the one contained in the proviso to Rule 56(iv) and after analysing the same, the Division Bench held thus in para 12: “So proceeding, S.K. Singhal (supra) was decided holding that when there is a positive provision that where the appointing authority does not refuse to grant the permission before the expiry of the notice period, the retirement shall become effective from the date of expiry of the said period, it becomes one on a stronger footing than Dinesh Chandra Sangma (supra). The plea of the State to the contrary was accordingly turned down. Thus, among the rules deducible as the ratio decidendi of S.K.Singhal (supra) wpc 29674/2008 & 1411/2009 9 supported by Dinesh Chandra Sangma (supra) and B.J. Shelat (supra) is the principle that when there is a positive provision that the voluntary retirement of an officer shall become effective from the date specified by the officer in his notice in terms of the rules, if the competent authority does not refuse such permission before that date, the retirement of that officer shall become automatically effective from the date of expiry of the notice period. This is, thus, the settled law on the point.” Therefore, in the absence of a refusal by the appointing authority before the date specified in the notice, the retirement of that officer will be automatically effective from the date of expiry of the notice period. The decision of the Apex Court in Tek Chand's case {(2001) 3 SCC 290} followed the decision of the Apex Court in S.K. Singhal's case {(1999) 4 SCC 293}. 14. Therefore, herein as the petitioner's request Ext.P4 which is dated 4.10.2007, was well in time and as he requested for permission to retire with effect from 9.12.2008, the notice is valid in law. 15. Herein, the learned Govt. Pleader pointed out that the petitioner, in those letters, actually also wanted to transfer his service under the Collegiate Education Department to the University, so as to draw pension from the University and therefore they cannot be treated as proper notices wpc 29674/2008 & 1411/2009 10 under the relevant rules. It is therefore pointed out that as directed in Ext.P18, as he was on deputation, he had to join back to the parent department and normally the refusal after the period of deputation will invite other consequences also. 16. Herein, two things are important. The contention whether the notice Ext.P4 which was followed by Ext.P3, in any way, is defective, is the question and while considering it, how the same were understood by the Government and the parent department, also is relevant in this context. That he was on deputation as Vice Chancellor, is beyond dispute. Even though the respondents maintain that the petitioner ought to have joined back after the period of deputation is over, so as to consider his applications no specific rule or other provisions are relied upon in support of the above plea. The petitioner had been maintaining that there is no law which states that deputationists cannot seek voluntary retirement. In the counter affidavit also no particular provision is relied upon. The notice Ext.P4 is addressed to the Director of Collegiate Education who is the appointing authority. In para 4 it is clearly stated that “I would like to voluntarily retire from the service with effect from 9.12.2008 from this University in the present cadre and prefer to claim pensionary benefits from this University.” wpc 29674/2008 & 1411/2009 11 Clearly, the same is really a notice conveying his intention to voluntarily retire from service with effect from 9.12.2008. No particular form is prescribed under the Rules to give notice. True that he had requested to transfer his service in the Collegiate Education Department and remit the required pension contribution to the University. But that will not defeat the purpose of the notice and the same is separable. This was forwarded through the Registrar of the University, as evident from the covering letter Ext.P5. The same was acted upon by the Government also as evident from Ext.P6 dated 5.4.2008 by the Government according sanction for the remittance of Rs.16,76,127/- with interest. Ext.P7 is the proceedings of the Director of Collegiate Education according sanction for payment of an amount of Rs.19,55, 481/-. In the meanwhile, the petitioner by Ext.P3 D.O. letter dated 11.4.2008 again communicated his intention to voluntarily retire, to the Principal Secretary, Higher Education Department. It is stated that he would like to voluntarily retire from service with effect from 9.12.2008 as Vice Chancellor of the University and further requested to take necessary steps to grant permission to retire from service. There is no case for the respondents that the above letter was not received. 17. When things stood as such, the Government felt that the wpc 29674/2008 & 1411/2009 12 petitioner should approach the Chancellor since according to the Government, he is the appointing authority of the Vice Chancellor which fact was conveyed by Ext.P9 letter and the petitioner was thus compelled to approach the Chancellor as per Ext.P10 solely because of the above letter. This was answered by the Chancellor as per Ext.P11, communicating a letter dated 29.9.2009 of the Government itself (Ext.P12) wherein the Government changed its earlier stand abruptly and conveyed the opinion that it is for the parent department to take a decision. 18. Even going by Ext.P12, there is no refusal by the Government or by the parent department to consider his request. After stating the fact that his appointment to the post of Vice Chancellor is on deputation and that he has to return to his parent department, in the last portion, it is stated that “in the light of the above, the request of Shri K.S. Radhakrishnan will be examined by Government as per rules after he rejoins duty in the parent Department.” Therefore, this evidences the fact that there was no refusal also. Actually, no such refusal was communicated to the petitioner prior to 9.12.2008. The direction issued by the Director of Collegiate Education to the petitioner to rejoin duty is dated 2.1.2009 (Ext.P18) which is after the crucial date, i.e. 9.12.2008 chosen by the petitioner to voluntarily retire wpc 29674/2008 & 1411/2009 13 from service. Therefore, the said letter cannot also be taken as a refusal to grant permission to retire from service. 19. The entire scheme of Rule 56 does not contain any provision that a person who is on deputation, will have to report back before submitting an application for voluntary retirement. The rules concerning deputation contained in Part I K.S.R. also do not prohibit a person who is on deputation, to submit an application for voluntary retirement. Therefore, the insistence by the respondents that the petitioner should have joined back after 9.12.2008 on expiry of his term as Vice Chancellor, is evidently unsupportable. The petitioner wanted to retire from service co-inciding with the expiry of the tenure of the term as Vice Chancellor. There was nothing in law preventing him to opt for that date. Herein, learned counsel for the petitioner submitted that the meaning of the term “notice” is to give information which should be actually communicated and that part was over as far as the petitioner is concerned. Evidently, the notice will imply in the legal sense communication of a fact to an authorised person. Herein, Ext.P4 is evidently addressed to the appointing authority itself and Ext.P3 is also a reminder sent to the Government also. It can therefore be safely held that valid notice was served by the petitioner. Merely because there wpc 29674/2008 & 1411/2009 14 was a request to transfer various amounts to the University, that does not affect the validity of the notice. At the most it can only be said that, that part could not have been acted upon by the Government. But herein, that was readily accepted by the Government and sanction was accorded which was followed by a competent proceedings issued by the Director of Collegiate Education. 20. Herein, one more aspect is relevant. The petitioner filed W.P.(C) No.29674/2008 on 6.10.2008, well before the date 9.12.2008. In the counter affidavit filed therein, in para 3 while referring to Ext.P4, it is stated that “In Ext.P4 representation dated 4.10.2007 addressed to the Director of Collegiate Education the petitioner has expressed his willingness to retire voluntarily from service on 9.12.2008 only.” In pare 4 also it is stated that “the petitioner had approached the Government for permitting him to retire voluntarily with effect from 9.12.2008.” Therefore, evidently the averments will show that such letters were treated as expressing his willingness to retire voluntarily from service with effect from 9.12.2008. Therefore, the contrary stand taken now disputing the validity of the notice cannot be justified. The contention raised in the counter affidavit therein is that it is not the Chancellor to grant permission, but the parent department and wpc 29674/2008 & 1411/2009 15 therefore he has to return to the parent department and then only the authority can grant permission. 21. Even after filing of W.P.(C) No.29674/2008 well before 9.12.2008, no communication was issued to the petitioner refusing to grant him permission to voluntarily retire from service. 22. A similar situation was considered by the Apex Court in Tek Chand's case {(2001) 3 SCC 290}. In para 33 similar rules have been examined by the Apex Court. It was held thus: “It is clear from sub-rule (2) of the Rule that the appointing authority is required to accept the notice of voluntary retirement given under sub-rule (1). It is open to the appointing authority to refuse also on whatever grounds available to it but such refusal has to be before the expiry of the period specified in the notice. The proviso to sub-rule (2) is clear and certain in its terms. If 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 sought for becomes effective from the date of expiry of the said period.” The same is the position herein. 23. In the decision of the Apex Court in Dinesh Chandra Sangma's case (AIR 1978 SC 17), while examining the effect of F.R. 56(c), it was wpc 29674/2008 & 1411/2009 16 held that “while the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant under F.R. 56(c) to voluntarily retire from service by giving the Government three months' notice in writing. “ Therefore, the legal effect of the notice is therefore clear and the notice will become effective if there is no refusal by the appointing authority before the date on which the employee wishes to retire. 24. In that view of the matter, the petitioner will be deemed to have retired from service with effect from 9.12.2008 itself. The subsequent events also will show that he has already attained the age of superannuation and would have retired from service actually on 31.3.2010. Therefore, at any rate, Ext.P18 cannot be implemented at this distance of time. 25. For all these reasons, the writ petitions are allowed. There will be a declaration that the petitioner will be deemed to have been retired from service with effect from 9.12.2008 as the voluntary retirement exercised by the petitioner has become effective from that date. Ext.P18 is therefore quashed. There will be a further direction to the respondents to sanction pension and other retirement benefits of the petitioner and appropriate orders will be passed within a period of two months from the date of receipt wpc 29674/2008 & 1411/2009 17 of a copy of this judgment and the retirement benefits will be disbursed accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/