1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No.13885/2010 with D.B. Civil Misc. Stay Appl. No.6638/2010 Kendriya Vidyalaya Sangathan vs. Dr. Lalit Kishore & Anr. Date of order :: 22.10.2010. HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Rajendra Prasad for petitioner. (PER HON'BLE MOHAMMAD RAFIQ, J.) This writ petition has been filed by Kendriya Vidhyalaya Sangathan (for short-KVS) against the judgement of the Central Administrative Tribunal dated 2.12.2009. The Tribunal by the aforesaid judgement has allowed the original application filed by respondent-Dr. Lalit Kishore and has quashed and set aside the order of his removal from service dated 20.4.2001 by directing that the same be treated as voluntary retirement under Rule 56(k)(1) of the Fundamental Rules. Factual matrix of the case is that respondent was working with the petitioner-KVS as Assistant Commissioner. When he was transferred elsewhere, he did not join the duties at new place and abandoned the service. A show cause notice dated 16.11.2000 was therefore served on him. The respondent filed reply to the same and requested for personal hearing. Vice Chairman of the KVS granted him personal hearing 2 on 28.2.2001. Respondent explained his personal difficulties and persuaded the Chairman to grant him an opportunity to seek voluntary retirement. A communication to this effect was sent to respondent by KVS on 26.3.2001 advising him to seek voluntary retirement under Rule 56(k)(1) of Fundamental Rules. Respondent vide letter dated 2.4.2001 conveyed his consent to the option given by the petitioner, however with a request that he may also be granted pensionary benefits under C.C.S. (Pension) Rules, 1972 while counting his past services with the Government of Haryana with effect from 1.9.1975 to 4.6.1983 for the purpose of pensionary benefits. Instead of granting voluntary retirement, petitioner by order dated 20.4.2001 removed him from service. The Tribunal keeping in view the totality of circumstances modified the order of removal, directing that the order of his removal from services dated 20.4.2001 be treated one of voluntary retirement. However, the Tribunal further observed that it had not given any finding on the point whether respondent was governed by the Provident Fund Rules, as contended by the KVS or by the Pension Rules, 1972. This issue was left open to be independently examined by KVS and for which purpose liberty was granted to the respondent to 3 make a suitable representation to the appropriate authority within a period of 15 days and the KVS was directed to dispose of the same within a period of three months in accordance with law. Shri Rajendra Prasad Sharma, learned counsel for the petitioner argued that the petitioner was fully justified in removing the respondent from service because he had absented for a long time and did not report on duty. Learned counsel argued that once the option was given to the respondent to seek voluntary retirement unconditionally he could not have subjected this to any condition. Respondent however imposed a condition that the period of service spent by him with the Government of Haryana be treated as part of the qualifying service for the purpose of pension. Since the respondent was not governed by the CCS (Pension) Rules, 1972, there was not question of counting such period of service for the purpose of pension. He thus forfeited the right to get voluntary retirement. Action of the petitioner was in conformity with Article 81(d)(1) of the Education Code for Kendriya Vidyalayas. Since on 20.4.01 when the impugned order was passed, the respondent did not attain the age of 55 years, he was not 4 entitled to retirement and therefore he was rightly removed from the services. We have given our anxious consideration to submissions made by learned counsel for the petitioner and perused the impugned order passed by the Tribunal as also the other material forming part of the record. It is not in dispute that respondent was recruited in the services of petitioner on 27.4.1983 and till impugned order was passed on 20.4.2001, he continued to serve them. Once the petitioner gave option to the respondent to seek voluntary retirement under Rule 56(k)(1) of the Fundamental Rules, question of his absence or abandonment of service became inconsequential because even if there was any mistake on his part, the same stood waived by conduct of the employer (KVS). It was because petitioner themselves gave to the respondent option to seek voluntary retirement under Rule 56(k)(1) and wrote a letter to him to this effect on 26.3.2001. All that the Tribunal had done is to substitute the order of removal by that of an order of voluntary retirement under Rule 56(k) (1) in terms of the offer extended to the respondent by KVS itself. It has not decided other contentious issue whether respondent was liable to be governed by the Provident Fund 5 Rules as was contended by KVS or by the Pension Rules, for which purpose the liberty was granted to the respondent to make a representation with direction to the petitioner to decide the same. In our view, the present writ petition is not only devoid of merits but is also wholly misconceived. This writ petition is therefore dismissed. Since the writ petition is dismissed, the stay application also stands disposed of. (MOHAMMAD RAFIQ), J. (ARUN MISHRA),J. RS/-