1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ratan Bishnoi v. State of Rajasthan S.B.CIVIL WRIT PETITION NO.8031/2008 under Article 226 of the Constitution of India. Date of Order :: 10th November, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.S. Singhvi, for the petitioner. Mr. Bharat Vyas, Additional Advocate General. .... BY THE COURT : REPORTABLE The petitioner, a member of Rajasthan Administrative Service, was placed under suspension on being registered a case alleging his involvement with the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The required sanction to prosecute him for the charges referred above was also granted by the Government of 2 Rajasthan on 1.7.2008. To contest the Rajasthan State Legislative Assembly Election, 2008, the petitioner sought voluntary retirement from service w.e.f. 15.9.2008 under an application dated 25.8.2008, however, the same was turned down by the authority competent on 8.9.2008. While reserving right to pursue for voluntary retirement w.e.f. 15.9.2008, the petitioner also tendered resignation from service vide an application dated 13.10.2008. The Government of Rajasthan refused to accept the resignation so tendered on the grounds referred in a communication dated 17.10.2008 and those are; (1)the Government Servant (petitioner) is facing a prosecution for the offences punishable under Sections 7, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988, the Government of Rajasthan's decision referred below Rule 22 of the Rajasthan Service Rules, 1951 (hereinafter referred to “as the RSR”) prohibits for accepting resignation of such an employee; and (2)no Government Servant undergoing suspension and facing trial for criminal charges can be voluntarily retired from service in view of the provisions of Rule 50 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as “the Rules of 1996”). To challenge the decision of the Government of Rajasthan refusing to accept the request for voluntary retirement as well as for resignation from service, this petition for writ is preferred. 3 Before coming to the arguments advanced by learned counsel for the rival parties and their merits, it shall be appropriate to notice certain provisions relevant to adjudicate the issues involved. Rule 50 of the Rules of 1996 pertains to premature retirement and according to that at any time after a Government servant has completed fifteen years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. The notice of voluntary retirement shall require acceptance by the appointing authority. The notice period may be of less than three months, if the Government Servant concerned make a request in writing to the appointing authority with reasons therefor. As per the Government of Rajasthan's decision given below to sub-rule (2) of Rule 50 of the Rules of 1996 the appointing authority in general is required to accept the request for voluntary retirement, except in the cases where the Government servant is facing suspension or in whose case disciplinary proceedings are pending or contemplated for imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of penalty of removal or dismissal from service and in 4 whose case the prosecution is contemplated or may have been launched in a court of law. Rule 6 of the Rules of 1996 provides that the future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. In the event of conviction of a pensioner by a court of law, the competent authority may take an appropriate decision to withheld the pension in total or in part, as the case may be. A right is given to the Governor to withhold or withdraw pension under Rule 7 of the Rules of 1996 and according to that if in any judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, the Governor may withhold or withdraw pension or part thereof, whether permanently or for a specified period and may also order for recovery from pension of the Government servant concerned. Rule 25 of the Rules of 1996 provided that resignation from a service or a post entails forfeiture of past service, as such if resignation is given by a Government servant otherwise than the eventualities given under sub-rule(2) of Rule 25, he shall not be entitled for getting any pension. Rule 22 of the RSR prescribes conditions for drawing pay and allowances, however, Government of 5 Rajasthan's decisions given below it provide certain circumstances under which resignation of a Government servant should be accepted. The decision referred above reads as follows:- “(b)Circumstances under which resignation should be accepted.-It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation from service should be accepted except in the circumstances indicated below:- (i)Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post the resignation should not be accepted straightaway, but only when alternative arrangement for filling the post have been made. (ii)Where a Government servant who is under suspension submits a resignation, the competent authority should examine, with reference to the merits of the disciplinary case pending against the Government servant whether it would be in the public interest to accept the resignation. Normally as Government servants are placed under suspension only in cases of grave delinquency it would not be correct to accept a resignation from a Government servant under suspension. Exceptions to this rule would be where the alleged offences do not involve moral turpitude or where the quantum of evidence against the accused Government servant is not strong enough to justify the 6 assumption that if the departmental proceeding were continued, the Government servant would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation. (iii)Where a Government servant has executed a bond to serve the State for a specified period the resignation tendered before completion of such period of service may not be accepted till the amount of penalty provided in the bond has been deposited.” The petitioner sought voluntary retirement from service and on its refusal also tendered resignation from service to contest legislative assembly election. Section 8 of the Representation of the People Act, 1951 (hereinafter referred to as “the Act of 1951”) provides disqualification to contest such election on conviction for certain offences and as per Section 9 of the Act referred above a person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified to contest election for a period of five years from the date of such dismissal. With the legal scenario stated above, the first contention raised by the petitioner is that the pendency of criminal case against him cannot be a 7 reason for declining the request for voluntary retirement in view of the fact that Rules 6 and 7 of the Rules of 1996 adequately equips the Government to take necessary action even against a retired Government servant, if his conduct is not good or if he is convicted as a consequent to judicial proceedings. The argument is also emphasised with the aid of the Government of Rajasthan's decision given below sub-rule(3) of Rule 50 of the rules of 1996 which prescribes that “in case a Government servant seeks voluntary retirement under rule 50(1) of the Rajasthan Civil Services (Pension) Rules, 1996, with a view to contest any election to Parliament/ State Assembly/ Municipalities/ Panchayati Raj Institutions, he may be retired by the competent authority under rule 50 of the RCS (Pension) Rules, 1996 immediately without prejudice to the right of Government going into the genuineness of the reasons and verification of the qualifying service rendered, and the period of notice prescribed under rule 50(1) of the Rajasthan Civil Service (Pension) rules, 1996 shall in such cases be deemed to have been waived as a matter of course.” It is asserted that right for adopting retirement voluntarily is absolute and that can be checked only in exceptional circumstances i.e. the non availability of alternative hand to fill in the space occurring on acceptance of the voluntary retirement. 8 The same contention is stressed with other limb of argument that refusal to accept voluntary retirement on the ground of pendency of a criminal case shall add a disqualification to contest election which is otherwise not provided under the Act of 1951. It is stated that under the Act of 1951 disqualification to contest election is prescribed only for the convicted persons and not for a person undergoing trial for criminal charges. It is also asserted by Shri M.S.Singhvi, learned counsel for the petitioner, that refusal to accept the request for voluntary retirement on the ground that the Government servant is facing suspension or undergoing trial for criminal charges is nothing but overstepping by the executive to the wish and intention of the legislature. It is pointed out that prior to enactment of the Rules of 1996 the provisions for voluntary retirement were prescribed under Rule 244 of the RSR and as per that the appointing authority was competent to decline the request for voluntary retirement relating to a Government servant placed under suspension and also for the persons undergoing trial for criminal charges, but the legislature while re-construing the provisions for voluntary retirement by the Rules of 1996 deleted those conditions, however, the executive by its administrative fiat injecting the provisions those were not found suitable by the legislature in its own wisdom. 9 While relying upon the Government of Rajasthan's decision given below Rule 22 of the RSR, it is submitted by learned counsel for the petitioner that the general rule is for acceptance of resignation as it is not in the interest of Government to retain an unwilling Government servant in service. To substantiate the contention, reliance is also placed by learned counsel for the petitioner upon the judgment of Hon'ble Supreme Court in J.K.Cotton Spinning And Weaving Mills Company Ltd. v. State of U.P. And Others, [(1990)4 SCC 27], observing therein that the employer cannot force an unwilling employee to work for him. While relying upon the same judgment it is also asserted that an employee is having a right to put an end to the contract of employment by informing his employer of his intention to give up the job as the employer is also having a right to terminate the employee from service. While stressing the argument aforesaid, it is asserted that clause (ii) under Government of Rajasthan's decision (b) given under Rule 22 of the Rules of 1996 is an administrative instruction and by that no restriction on the right of a Government servant to quit the service can be imposed. As per learned counsel for the petitioner if the petitioner shall be found guilty for the criminal charges 10 alleged, it shall be open for the Government of Rajasthan to take appropriate decision to effect recovery from him even after retirement from service, and in the event of resignation he shall not at all be entitled for getting any pension in view of the provisions of sub-rule(1) of Rule 25 of the Rules of 1996. In reply to the writ petition, the respondent has detailed gravity of the charges under adjudication before the competent court. According to the respondent, if the relief claimed by the petitioner is given, then there are all chances of leaving a person scot free, who may be otherwise held responsible for committing serious misconduct and grave criminal offences. Shri Bharat Vyas, learned Additional Advocate General, at the first instance emphasised that the petitioner is claiming for voluntary retirement and also for resignation from service to contest legislative assembly elections and i.e. only a statutory right in view of various authoritative pronouncements of the Hon'ble Supreme Court including in the case of Kuldip Nayar & others v. Union of India & Ors., reported in (2006)7 SCC 1, reiterating that the right to stand for election is a statutory right and enforcement of that cannot be reason for accepting voluntary retirement or the resignation tendered. 11 Meeting with the first contention of learned counsel for the petitioner it is stated by learned Additional Advocate General that the Government is having ample power to provide necessary guidelines through administrative exigencies wherever the statute is silent, no interference of this Court is required, if such administrative instructions are not in contravention of the specific statute or are not framed by the authority having competence to do so. In the instant matter the Government of Rajasthan's decisions nowhere over-steps the statute and the decisions are taken by the Government having all competence to regulate its administration by prescribing administrative instructions. Regarding competence of prescribing administrative instructions to fill in the gaps/spaces within the statutes, reliance is placed by learned counsel for the petitioner upon the judgments of Hon'ble Supreme Court in AIR 1967 SC 1910, Sant Ram Sharma v. State of Rajasthan & Ors.; AIR 1973 SC 303, Union of India v. K.P.Joseph & Ors.; and (2004)2 SCC 297, DDA & Ors. v. Joginder S. Monga & Ors. It is stated by learned counsel for the petitioner that whatever decision taken by the Government for not accepting the request for voluntary retirement and for resignation is founded on the decisions of the Government of Rajasthan which are 12 having uniform application on all Government servants. While placing reliance upon the judgments of Hon'ble Supreme Court in Reserve Bank of India & Anr. v. Cecil Dennis Solomon & Anr., (2004)9 SCC 461; Dr. Baljit Singh v. State of Haryana, AIR 1997 SC 2150; and Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571, it is stated by learned counsel for the petitioner that the voluntary retirement is required to be accepted as per the provisions of Rule 50 of the Rules of 1996 and the resignation of an employee normally required to be accepted by the employer in order to be effective. The employer i.e. the State of Rajasthan in present case is justified in refusing to accept the resignation as the petitioner is facing a criminal trial for very grave charges. The petitioner as a consequent to the judicial proceedings may be convicted and on conviction or as a consequent to the disciplinary proceedings if any initiated, he may be dismissed from service. I have considered the arguments advanced. No much time is required to be spent on issue regarding the authority of the Government to issue executive instructions to provide requisite rights/ checks/guidelines in administrative interest as it is well settled that, if, the statute is silent on any particular point, the Government can fill up the gaps 13 and supplement that through administrative instructions, however, those instructions must not be inconsistent with the statute already in existence. As per Rule 244 of the RSR (as then it was existing), it was well within the competence of the Government to decline a request for voluntary retirement in the eventuality of running suspension of the Government servant and also in the event of pendency of a judicial proceeding before a competent court, but under Rule 50 of the Rules of 1996 no such statutory power is available. Whatever power exercised by the Government in the instant matter is borrowed through the administrative instructions. Precisely, the question is that whether the State lost its authority to issue supplemental administrative instructions for considering and refusing for voluntary retirement on the counts those are not part of Rule 50 of the Rules of 1996 but were available under Rule 244 of the RSR during its currency? It is true that the legislature quite consciously has not included the power for denial to accept the request for voluntary retirement, if the Government servant is facing suspension or is undergoing a trial for criminal charges, but on that basis it shall not be appropriate to infer that the 14 Government exceeded its competence to issue administrative instructions to provide the same criteria to consider a request for voluntary retirement. As a matter of fact the legislature has provided a more flexible criteria to consider a request for voluntary retirement under Rule 50 of the Rules of 1996 vis-a-vis the criteria provided under Rule 244 of the RSR. As per Rule 244 of the RSR the appointing authority was required to withhold permission to retire a Government servant who is under suspension, in whose case disciplinary proceeding was pending or contemplated for imposition of major penalty and the disciplinary authority having regard to the circumstances of the case was of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service and in whose case prosecution was contemplated or may have been launched in a court of law. The legislature by remaining silent regarding criteria for considering request for voluntary retirement while construing Rule 50 of the Rules of 1996 left a broad and objective discretion for the appointing authority to consider the effect and impact of suspension, pendency or contemplation of judicial as well as disciplinary proceedings while dealing with the request for voluntary retirement. There may be thousand eventualities to accept the request for voluntary retirement even during currency of 15 suspension or during pendency or contemplation of judicial or disciplinary proceedings, but at the same time there may be a single cogent reason to decline the request for voluntary retirement. The legislature, thus, under Rule 50 of the Rules of 1996 by keeping silence relating to the criteria for withholding the request for accepting voluntary retirement, as that was available under Rule 244 of the RSR equipped the appointing authority with much more wide and objective discretion. The legislature rightly did so to make the provisions for voluntary retirement more effective and to more and more workable in different eventualities. The Government by issuing administrative instructions has given certain guidelines and empowered the appointing authority with a larger discretion. In every case where the Government servant is facing suspension undergoing trial or judicial proceedings and if he claims for voluntary retirement, the appointing authority is required to examine all pro and cons for accepting the request so made. On basis of objective consideration of available facts the appointing authority may accept the request for voluntary retirement and may also decline for the same. No wrong, therefore, is committed by providing administrative instructions by the Government of Rajasthan under Rule 50 of the Rules of 1996. I also do not find any merit with the argument that even after retiring the petitioner 16 voluntarily the Government shall be having adequate power to stop complete or part pension of the petitioner as per the provisions of Rule 6 of the Rules of 1996, therefore, the appointing authority should have accepted the request for voluntary retirement. It is true that as per Rule 6(1)(b) of the Rules of 1996 the appointing authority is having power to withhold or withdraw pension or part thereof, if the pensioner is convicted for a serious crime or is found guilty of grave misconduct, but it nowhere restricts for exercising powers to accept or deny the request for voluntary retirement on basis of available peculiar facts of a specific case. A Government servant is having no right to undergo the voluntary retirement unilaterally. The right available is only to claim for voluntary retirement subject to acceptance by the appointing authority. The voluntary retirement from service is a bilateral act and it cannot be considered as a compulsory retirement on attaining the age of superannuation. The acceptance of the argument advanced by learned counsel for the petitioner shall virtually amount to drastically curtailing a discretion given to the appointing authority by the statute and also through the valid administrative instructions while dealing with the request for voluntary retirement. It is also worthwhile to note that as a consequent to the conviction under judicial proceedings or as a consequent to disciplinary proceedings a Government 17 servant can even be dismissed from service and the dismissal from service is having totally different implications as a penalty, than to withholding or withdrawing pension. The other argument of the learned counsel for the petitioner is that the resignation is an implied condition of service and there is no provision for its acceptance, therefore, moment the petitioner tendered it, he should have been treated resigned from service. It is also urged by learned counsel for the petitioner that as per the provisions of Rule 25 of the Rules of 1996 the resignation from service entails forfeiture of past service, therefore, there could have been no hintch in accepting resignation of the petitioner. The argument advanced by learned counsel for the petitioner appears to be attractive but is of no merit. The resignation from service may be an implied condition of service but that requires acceptance under the administrative instructions given below Rule 22 of the Rules of 1996. Hon'ble Supreme Court while dealing with an argument similar to the present one in Central Inland Water Transport Corporation Ltd. (supra), held as follows:- “A resignation of an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer 18 would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee.” The Apex Court also in the case of Reserve Bank of India (supra), held that right to resign from office is a unilateral right or privilege but where there is a provision empowering the employer not to accept the resignation, in certain circumstances, such as pendency of disciplinary proceedings, the employer can exercise the power and refuse to accept resignation. In the present matter, the acceptance of resignation is desired as per the Government of Rajasthan's decisions. The judgments referred above also adequately answer the argument raised by the petitioner that public interest warrants acceptance of resignation of the Government servant, if he is unwilling to serve. A Government servant is an holder of a status and that 19 cannot be made dependent to his will. Once a person accepts a status as per rules, he is to be subjected as per the rules only. A person with statutory status is not only a simple individual, but an integral part of governance and also a face of the Government. In the garb of his unwillingness, neither he can be permitted to shirk from his responsibilities and duties nor he be allowed to escape himself from the consequences of adverse findings relating to his ill deeds, if any exist. The disqualification prescribed under Section 8 of the Act of 1951 is relating to conviction for certain offences only and, therefore, denial for acceptance of voluntary retirement to the petitioner virtually amounts to add an additional disqualification i.e. of pendency of criminal trial is the last argument advanced by learned counsel for the petitioner. It