IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1796 of 2007 Date of decision: 15.09.2010 O.P. Shant …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Rajiv Rai, Advocate. For respondents No. 1 & 2: Mr. Vivek Thakur, Additional Advocate General, with Mr. Rajesh Mandhotra, Deputy Advocate General. For respondents No. 3: Mr. Janesh Mahajan, Central Government Counsel. For respondent No. 4: Mr. Deepak Kaushal, Advocate. Deepak Gupta, J. (Oral) 1. The petitioner, by means of this petition, has prayed that the respondents be directed to release the pension, gratuity and other retiral benefits payable to him under the Triple Benefit Scheme applicable to Government aided private schools. 2. The undisputed facts are that the petitioner was employed as a Hindi and Sanskrit Teacher with the DAV Senior 1 Whether the reporters of local papers may be allowed to see the Judgment?Yes. 2 Secondary School, Una on 3rd May, 1960. It is not disputed that this school is a government aided school. It is also not disputed that in these government aided schools, rules known as “The Union Territories Government Aided Schools Teachers Contributory Provident Fund-cum-Insurance-cum-Pension Rules, 1965” were applicable. These rules envisaged the payment of Contributory Provident Fund, Insurance, Gratuity, Pension and Death Gratuity. Under this scheme, pension was classified into four classes: 1. Compensation Pension; 2. Invalid Pension; 3. Superannuation Pension; and 4. Retiring Pension. Compensation Pension was payable only when on account of abolition of the permanent post a qualified teacher was rendered unemployed. Invalid Pension was to be paid in case a teacher was retired due to bodily or mentally infirmity rendering him incapable of serving as a teacher. Superannuation Pension was to be paid when a teacher retired on attaining the age of superannuation prescribed under the Rules of the school or the relevant grant-in- aid rules applicable to such schools. We are not here concerned with any of these three classes of pension. Retiring Pension was defined as follows: “18. Retiring Pension: (i) Retiring pension shall be granted to a teacher who is permitted to retire after completing qualifying service of 30 years. 3 (ii) A teacher wishing to retire under this clause after completing 30 years qualifying service shall give a notice in writing to the management at least three months before the date on which he wish to retire. Similarly the management may, with the prior approval of the Director of Education, also require a teacher to retire after he has completed 30 years qualifying service provided that the management shall give in this behalf a notice in writing to the teacher at least three months before the date on which he is required to retire. (iii) A teacher who has given to the Management Notice of retirement under clause (ii) above shall have no right to withdraw the notice. Withdrawal of notice may however be permitted with the prior approval of the appointing authority provided the request of withdrawal is made within the intended date of his retirement.” 3. A bare perusal of this provision clearly shows that retiring pension was to be granted to a teacher, who was permitted to retire after completing minimum 30 years as qualifying service. This retiring pension, in fact, was payable on account of voluntary retirement of a teacher and the rule lays down that only a teacher, who has served for 30 years, would be permitted to seek voluntary retirement. It is more than obvious that a teacher, who had not served for 30 years, could not seek voluntary retirement under these Rules. 4 4. Rule 19 (ii) of the Rules provided for the different rates of gratuity and pension payable. We are concerned with Rule 19 (ii) (a), which reads as follows: “(ii) Pension – (a) A teacher shall be eligible for pension if he has rendered a total qualifying service of 10 years or more, and discharged or retired as per rules and orders.” 5. It has been strenuously urged on behalf of the petitioner that any teacher, who retires after rendering service of more than 10 years, as per Rules, would be entitled to pension, to be calculated under sub-clause (b) of this Rule. The stand of the State is that, in fact, Rule 19 (ii) (a) is applicable only after a teacher retires in accordance with the Rules 15 to 17. It is contended that when a person retires in terms of Rules 15 to 17, then the qualifying service required is only 10 years. In case of a teacher seeking voluntary retirement in terms of Rule 18, the qualifying service, as per Rules, is 30 years and Rule 19 (ii) (a) cannot be invoked in such a case. 6. The Apex Court in Reserve Bank of India and another versus Cecil Dennis Solomon and another, 204 (9) SCC 461, has very succinctly brought out the difference in various terms used for retirement / resignation from service. The relevant portion of the judgment reads as follows: “In service jurisprudence, the expressions “superannuation”, “voluntary retirement”, “compulsory retirement” and “resignation” convey different connotations. Voluntary 5 retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary.” 7. I am in agreement with the contention of the State that the provisions of Rule 19 (ii) (a) are not applicable to the present case and they would be applicable only to retirements made under Rules 15, 16 and 17 and for a teacher seeking voluntary retirement, it is only the terms and conditions laid down in Rule 18, which would be applicable, though the pension may have to be calculated in terms of Rule 19 (ii) (b). 8. Having held so, it cannot be denied that no employee can voluntary retire from service without the express consent of the employer. The act of voluntary retirement is a bilateral concept. The Apex Court in Himachal Pradesh Horticultural Produce Marketing & Processing Corporation Ltd. versus Suman 6 Behari Sharma, 1996 (4) SCC 584, has clearly laid down that no employee has a right to seek voluntary retirement. The employer may accept the request of the employee to seek voluntary retirement, but in case the services of the employee cannot be spared, the employer has the right to reject the prayer for grant of voluntary retirement. 9. Here it would be apposite to refer to the letter dated 12th March, 1986, whereby the petitioner sought voluntary retirement. The letter reads as follows: “The Manager, DAV Hr. Sec. School, Una. Through: Principal D.A.V. H/S School, Una. Dear Sir, The prevailing conditions of the school have driven me to request you to please allow me pre-mature retirement. I am in the Triple Benefit Scheme of the School and as such entitled to pension etc. Kindly pass orders to complete my case and then relieve me of my duties and also arrange to disburse my upto date dues of pay & allowances. The case for final payment of my G.P.F. may also please be sent to the quarter concerned. Thanking You. Yours faithfully, Dated:12 March, 1986 sd/- (O.P.Shant) Lecturer. D.A.V. Hr. Sec. School, UNA. 7 Copy forwarded for favour of information and necessary action to: 1. The District Education Officer, Una. 2. The Director of Education, Himachal Pradesh, Shimla. 3. The President D.A.V. College Managers Committee, Chittar Gupta Road, New Delhi. (O.P. Shant) Lecturer. D.A.V. Hr. Sec. School, Una.” 10. It is apparent from a reading of this letter that the petitioner was rightly or wrongly under the impression that he was not only entitled to pre-mature retirement but also to the benefits of Triple Benefit Scheme. He clearly mentioned that he is entitled to pension in terms of said scheme. It is important to note that copies of this letter were endorsed to District Education Officer, Una, as well as to the Director of Education, Himachal Pradesh, Shimla. None of the authorities advised the petitioner that he was not entitled to the benefit of pension or other retiral benefits under the Triple Benefit Scheme. If the petitioner had been advised in such a manner, he may have withdrawn his letter seeking voluntary retirement. Not only this letter, but various communications addressed to the petitioner thereafter, clearly shows that even the department was of the view that the case of the petitioner was covered under Rule 19 (ii) of the Scheme. In this behalf, reference 8 may be made to an undated letter, Annexure P-4, sent by the Assistant Director (Legal), H.P. Education Directorate. Similarly, another letter addressed by the Director of Education to the Senior Deputy Accountant General (A & E), Annexure P-5, also clearly shows that the pension case of the petitioner was being examined under Rule 19 (ii) of the Rules. 11. In fact, in a communication addressed by the Senior Deputy Accountant General (A & E), Himachal Pradesh, to the Assistant Registrar (Law) National Human Rights Commission, it was stated that the Director of Education and Principal, DAV Senior Secondary School have stated that though the case of the petitioner was not covered under Rule 19 (ii), the case is covered under Section 18 (ii) of the Triple Benefit Scheme. It was, thereafter, for the first time, vide letter dated 5th March, 2005, Annexure R-1, that the petitioner, after about more than 18 years of his retirement, was informed that his case is not covered under the Triple Benefit Scheme and he was not entitled to pension. Thereafter, the petitioner, made certain other representations and it is only thereafter, the petitioner filed the present writ petition on 1st November, 2007. 12. Though, as I have held above that the petitioner may not be covered under Rule 19 (ii), but the fact remains that he was let to believe by all the authorities that he was entitled to pension under these Rules. If the petitioner had been informed by any of the authorities at the relevant time that he was not entitled to pension, he may have withdrawn his request for grant of voluntary 9 retirement. The petitioner has, thus, been totally misled by the respondents, i.e. the employer as well as the officials of the Directorate of Education, who for the 19 years’ long period, kept on informing the petitioner that his case is being examined for grant of pension under Rule 19 (ii), which was totally inapplicable. 13. The petitioner, in my view, is, therefore, entitled to rightly claim pension, gratuity and other retiral benefits due and payable to the petitioner in terms of Rules mentioned hereinabove. The petitioner has approached to this Court only in the year 2007 and prior to this, he was taking up the matter either before the Human Rights Commission, Lokayukta or the Consumer Forums, that too without filing any proper petitioners. He can not, therefore, be rewarded interest for a period of more than three years prior to the filing of the present petition. 14. In view of the above discussion, the petition is disposed of with the directions to the respondents to work out the pension, gratuity and other retiral benefits payable to the petitioner in terms of Rule 19 (ii) (b) by taking his qualifying service to be 25 years 10 months. The arrears alongwith the interest @ 6 per cent per annum w.e.f. 1st December, 2004 shall be paid to the petitioner on or before 30th April, 2011. In case, the arrears are not deposited before the said case, the petitioner shall be entitled to claim interest @ 12 per cent per annum instead of 6 per cent per annum. The respondents are also directed to ensure that in future the pension is credited to the account of the petitioner every month. 10 15. The petition is disposed of in the aforesaid terms. No costs. (Deepak Gupta) Judge September 15, 2010 (rajni)