IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WA.No. 1391 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.27303/2009 Dated 10/06/2010 .................... APPELLANT): PETITIONER:- --------------------------------------- SUMANGALA.K., H.S.A.(HINDI), GOVT.HIGH SCHOOL, PARAVOOR, ALAPPUZHA. NOW ON DEPUTATION TO BLOCK RESOURCE CENTRE, S.S.A., ALAPPUZHA. BY ADV. SRI.M.K.PRADEEPKUMAR RESPONDENTS: RESPONDENTS:- --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE HEAD MASTER/MISTRESS, GOVT.HIGH SCHOOL PARAVOOR, ALAPPUZHA. 5. ACCOUNT GENERAL OF KERALA (A & E), THIRUVANANTHAPURAM. 6. STATE PROJECT DIRECTOR (SSA) KERALA, SSA, THIRUVANANTHAPURAM. 7. DISTRICT PROJECT OFFICER, SSA, ALAPPUZHA. GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “ CR” A.K.BASHEER & P.Q.BARKATH ALI, JJ. = = = = = = = = = = = = = W.A.No.1391 of 2010. = = = = = = = = = = = = = Dated this the 4th November, 2010. J U D G M E N T Basheer, J. Appellant who is a member of the Kerala General Education Service was sent on deputation in July 2004, as a Block Resource Centre Trainer to impart training to school teachers at Alappuzha. The above training programme was being conducted by the Sarva Shiksha Abhiyan (SSA), a project sponsored by the Central Government. At the time of deputation, appellant was working as High School Assistant (Hindi) in Government High School, Paravoor in Alappuzha district. 2. While continuing on deputation appellant submitted a request to her appointing authority, the Deputy Director of Education, Alappuzha to allow her to retire from service voluntarily, with effect from March 31, 2008. The said request was made by the appellant on February 8, W.A.No.1391 of 2010. 2 2008 as could be seen from Ext.P2. But, on April 2, 2008 appellant submitted Ext.P5 application before the Deputy Director requesting him to drop all further proceedings on her application for voluntary retirement and allow her to continue in service. 3. It is on record that appellant continued as Block Resource Centre Trainer in Sarva Shiksha Abhiyan even thereafter. In the meanwhile in September, 2008 and June, 2009 the Deputy Director is seen to have issued notice to the Headmistress of the Government High School, the parent institution where the appellant had been working as High School Assistant prior to her deputation, to take steps to recover the salary and allowance paid to the appellant after March 31, 2008, the date on which the appellant wished to retire from service. 4. Appellant filed the writ petition before the learned Single Judge under Article 226 of the Constitution of India at that stage with a prayer to declare that her continuance in service beyond March, 31, 2008 was lawful and proper W.A.No.1391 of 2010. 3 and that Ext.P2 application submitted by her seeking voluntary retirement had become infructuous. 5. The learned Single Judge did not allow the primary prayer made in the writ petition. However, the respondents were directed not to recover any amount received by her by way of salary and allowance after March 31, 2008 till January 31, 2010. It was further directed that the respondents shall disburse all her pensionary benefits reckoning her date of retirement as March 31, 2008. The above judgment is under challenge in this appeal to the extent the learned Single Judge has refused to grant the entire reliefs prayed. 6. The questions that arise for consideration in this case may be formulated thus: Can a request by a Government servant for voluntary retirement be treated as ab initio invalid and inoperative for want of requisite minimum notice period as contemplated in Rule 56(1) of Part III Kerala Service Rules? W.A.No.1391 of 2010. 4 Is not the Government justified in rejecting the plea of an employee to allow him to withdraw the request for voluntary retirement if such plea is made after the intended date of retirement? 7. As has been noticed already the appellant submitted Ext.P2 seeking voluntary retirement with effect from March 31, 2008. Admittedly, appellant submitted Ext.P5 application seeking to withdraw her request for voluntary retirement only on April 2, 2008 viz. after the due date of intended retirement. 8. Rule 56 in Part III Kerala Service Rules deals with retiring pension. Relevant clauses of the above rule are extracted hereunder: “56. A retiring pension is granted to an employee who retires voluntarily after 20 years of qualifying service subject to the following conditions:- (i) He shall give notice in writing to the appointing authority or the pension sanctioning authority of his intention to retire at least three months before the date on which he wishes to retire: W.A.No.1391 of 2010. 5 Provided that the employee may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefor. On receipt of such request the appointing authority may consider it for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (emphasis supplied) xxx xxx xxx xxx xxx xxx (iv) Voluntary retirement of an employee shall become effective on the grant of permission to retire by the authority competent to make appointment to the post: Provided that where the authority competent 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.” A perusal of clause (i) extracted above will show that the employee has to give notice in writing indicating his intention to retire at least three months before the date on W.A.No.1391 of 2010. 6 which he wishes to retire. The proviso under clause (i) postulates that on receipt of such request from an employee the authority may consider it even if the notice is of less than three months, if the authority is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience. The appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. 9. The proviso to clause (iv) makes it clear that the retirement of the employee shall become effective from the date specified in his notice if the competent authority does not refuse to grant permission for retirement before the date on which he wishes to retire. 10. In the case on hand the appellant had not given three months' notice as contemplated under clause (i). It is contended by the appellant that her retirement would not have become effective with effect from March 31, 2008 for W.A.No.1391 of 2010. 7 the above defect in the notice. Therefore, even if the subsequent request made by the appellant was beyond the proposed date of retirement, it was of no consequence, it is contended. 11. But, the case of the respondents is that the application received from the appellant was forwarded by the appointing authority to the Accountant General with Service Book for verification of admissibility of service after treating it as a valid application albeit it was defective, in as much as three months' notice as contemplated under clause (i) was not given. It is further contended that since the request for grant of permission to retire was not refused before the date of retirement, the appellant ought to have retired from service in the afternoon of March 31, 2008 as provided under clause (iv) of Rule 56. 12. However, it is contended by learned counsel for the appellant that forwarding of the Service Book is only for the purpose of verification of the service records being maintained by the Accountant General's office with W.A.No.1391 of 2010. 8 reference to the number of years of service as provided under Ruling No.1 in Rule 56. There was no other significance to this routine procedural formality. Therefore, according to the learned counsel, the administrative or procedural formality performed by the appointing authority will not cure the inherent defect in the application. 13. We are not impressed with the above contention for two reasons. Firstly, as is explicit from clause (iv) referred to above, the employee who seeks voluntary retirement is bound to retire on the date specified in the notice, if the competent authority does not refuse to grant permission for retirement. In this context Ruling No.2 in Rule 56 is relevant, which reads thus: “Ruling No.2: An employee who has elected to retire under this rule and has given necessary intimation to that effect to the competent authority, shall be precluded from withdrawing his election subsequently except with the sanction of the Government under the recommendation of the authority competent to fill the appointment, provided his request for withdrawal is made within the intended date of his retirement.” W.A.No.1391 of 2010. 9 The above ruling makes it abundantly clear that once an employee makes a request to allow him to retire voluntarily, he shall be precluded from withdrawing his election. But of course, he would be entitled to do so provided the request for withdrawal is made “within the intended date of retirement” and that too only if the Government accords sanction on a recommendation to be made by the “authority competent to fill the appointment”. Therefore, since the competent authority had not refused to grant permission to the appellant to retire voluntarily, and also since Ext.P5 application seeking withdrawal of the request for voluntary retirement was after the date of retirement specified in Ext.P5, we have no hesitation to hold that the voluntary retirement of the appellant had become effective from March 31, 2008 itself. More importantly the appellant has no case that the Government had accorded sanction to her to “withdraw her election” as provided in Ruling No.2 extracted above. In that view of the matter also the appellant would not have been entitled to continue in W.A.No.1391 of 2010. 10 service beyond the “intended date”, viz. March 31, 2008. 14. But, the crucial question is whether the application seeking voluntary retirement “had become infructuous” (as appellant would put it) since the appellant had not given at least three months' notice as stipulated in Rule 56(i) of Part III Kerala Service Rules. According to the appellant, ExtP2 application was inconsequential and invalid and therefore the authorities were not bound to act upon it. It is further contended that even assuming any action had been taken pursuant to the above application, all such actions would be inconsequential and unenforceable. 15. But, it has already been noticed that the proviso to sub rule (i) of Rule 56 KSR confers discretionary power on the appointing authority to accept the request for voluntary retirement with less than three months' notice. However, the proviso makes it clear that the employee must give reasons for the shorter notice period. The latter part of the proviso elucidates further that the authority may relax the requirement of notice of three months' on condition that W.A.No.1391 of 2010. 11 the employee shall not apply for commutation of a part of pension before the expiry of the period of notice of three months'. 16. A conjoint reading of sub rule (i) and (iv) of Rule 56 with the provisos and Ruling No.2 thereunder, will unambiguously show that reasonable flexibility or balance has been given by the rule making authority to ensure that an employee is not put to any kind of heartburn or prejudice even if a decision is taken by him to retire voluntarily on an impulse. There is enough “play in the joints”, if we may say so. 17. It is true that appellant had not given three months' notice. But, still the appointing authority had accepted the request and forwarded the same to the higher authorities for further follow up action. Admittedly, appellant had second thought only after the due date of “intended retirement” was over. Having regard to the entire aspects of the matter, we have no hesitation to hold that the authorities were justified in acting on Ext.P2 W.A.No.1391 of 2010. 12 application for voluntary retirement. 18. But, the materials available on record would show that there was some unfortunate lapse or communication gap between the parent department of the appellant and the Sarva Shiksha Abhiyan in which the appellant had been working since 2004 on deputation basis. As rightly pointed out by learned counsel for the appellant, the respondent could not have pretended ignorance as regards the continuance of the appellant in service. The learned counsel has invited our attention to Ext.P12 dated September 18, 2009 by which the period of deputation of the appellant was extended by the government till March 31, 2010. Similarly Annexure-A3 will show that the appellant had been granted a refundable advance of Rs.83,900/- from her General Provident Fund account. This order was issued by the District Educational Officer, Alappuzha on March 17, 2010 with copy to the Accountant General, Director of Public Instruction, etc. Further, appellant had been making contribution to General W.A.No.1391 of 2010. 13 Provident Fund account every month. The annual account statement for the years 2008 to 2010 will show that subscription amount was being credited every month from the salary of the appellant during the period referred to above. 19. However, learned Government Pleader points out that the Deputy Director had issued Ext.P7 notice as early as on September 8, 2008 to the Headmistress of the school in which the appellant had been working calling for her explanation as to why appellant was being allowed to continue as Block Resource Centre Trainer after March 31, 2008. Ext.P7 further shows that a copy of this communication was sent to the appellant also. Similarly Ext.P11 notice was also issued by the Deputy Director on June 20, 2009 calling for the explanation of the Headmistress as to why the appellant was being allowed to continue in service after March 31, 2008. The attempt of the learned Government Pleader is apparently to highlight the fact that the Deputy Director had taken some action in W.A.No.1391 of 2010. 14 the matter. 20. But, it is evident from the records that apart from issuing these notices the Deputy Director, Headmistress or any other authority had not taken any steps to terminate the deputation of the appellant in the Sarva Shiksha Abhiyan. The appellant continued as Block Resource Centre Trainer till March 31, 2010 as could be seen from Ext.P17, though she was paid salary and allowance only till January 31, 2010. Obviously, salary and allowance during the period of deputation were paid from the funds made available by the Central Government under the Sarva Shiksha Abhiyan scheme. Any how, the fact remains that the appellant was paid her dues for the services rendered by her in Sarva Shiksha Abhiyan even though she could not have continued in service as High School Assistant beyond March 31, 2008. It is in the above facts and circumstances the learned Single Judge directed the respondents not to recover the salary and allowance received by the appellant after March 31, 2008 till January 31, 2010. In view of the fact that the W.A.No.1391 of 2010. 15 above direction issued by the learned Single Judge has not been challenged by the State and also keeping in view the fact that the appellant's service had been utilised by the Sarva Shiksha Abhiyan, we are satisfied that the direction issued by the learned Single Judge need not be disturbed. The appeal fails and it is accordingly dismissed. A.K.BASHEER, (Judge) P.Q.BARKATH ALI, (Judge) Kvs/-