IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8905 of 2008 (OA No.2328/2007) Judgment reserved on : 24.11.2010 Date of decision : 25.11.2010. Tara Dutt …Petitioner. Versus State of H.P. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Praneet Gupta, Advocate. For the Respondents : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge The petitioner has prayed for quashing of Annexure A-5 dated 10.9.2006 and Annexure A-6 dated 3.10.2006 rejecting the request of petitioner for withdrawal of voluntary retirement of the petitioner. It has also been prayed that petitioner may be ordered to be re-engaged in service under the respondents with all consequential benefits including seniority, pay, salary and allowances. 2. The further case of the petitioner is that petitioner while serving in the office of District Statistical Officer, Lahaul & Spiti at Keylong made an application for voluntary retirement from service and 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 submitted an application dated 8.6.2006 for voluntarily retirement to the competent authority. The petitioner requested that he may be treated as retired voluntarily from Government service w.e.f. 30.9.2006. The respondent No.2 in pursuance to sub rule (2) of Rule-3 of Himachal Pradesh Civil Services (Premature retirement) Rules 1976 ordered retirement of the petitioner from Government service w.e.f. 30.9.2006 subject to the condition that all outstanding recoveries shall be recovered from his retirement dues. 3. There was change of circumstances, therefore, petitioner prior to date of voluntary retirement submitted an application dated 29.8.2006 to respondent No.2 requesting him that his application dated 8.6.2006 may kindly be treated as withdrawn. It was submitted that family circumstances of the petitioner had improved and he wants to continue in service. 4. The request of the petitioner for withdrawing the resignation from government service was rejected by respondent No.2 vide communication dated 10.9.2006 addressed to respondent No.4, who vide letter dated 3.10.2006 informed the petitioner that his request for withdrawal of pre-mature retirement was forwarded to Economic Adviser to H.P.Government which was rejected on 30.9.2006. The petitioner stood retired and relieved from Government service w.e.f. 30.9.2006 as per the Economic Adviser to H.P.Govt. order dated 25.8.2006. 5. The petitioner immediately after issuance of letter dated 10.9.2006 Annexure A-5 and letter dated 3.10.2006 Annexure A-6 met the respondent No.2 and requested that he had already withdrawn his request for voluntary retirement but still he had been retired despite 3 the withdrawal. The respondent No.2 assured the petitioner to make a written representation which petitioner submitted in the office of respondent No.2 but did not retain a copy of such representation. The petitioner waited for reply from the office of respondent No.2 but without any result and, therefore, the petitioner has filed the present petition. It has been submitted that petitioner had made the request for withdrawal of resignation before its acceptance and date of retirement. The action of respondents in turning down the request for withdrawal and passing the impugned Annexures A-5 and A-6 are illegal and liable to be quashed. The Annexures A-5 and A-6 have been passed without application of mind. The petitioner was legally competent to withdraw his request for voluntary retirement before it actually had taken effect. 6. The petition has been contested by respondents No.1 and 2 by filing joint reply. It has been stated that voluntary retirement order in respect of petitioner was rightly passed by competent authority after taking into consideration all aspects and Government instructions. The petitioner has not exhausted normal official channels. The petitioner has no cause of action. It has been stated that petitioner had applied for voluntarily retirement from government service w.e.f. 30.9.2006 and his request was accepted on 25.8.2006. He lateron applied for withdrawal of retirement notice. After examining the whole case of the petitioner, the request of the petitioner was rejected as there was no substantial change in the circumstances which led the government servant to seek retirement and the request of the petitioner was baseless. Once the government servant had been retired at his request there was no question of withdrawal of notice of the retirement. There is also no question of any appeal in such case. The petitioner has no cause of 4 action, the petition has been filed after lapse of more than 11 months. The petitioner is habitual to submit application in the first instance and subsequently withdrawing the same. The petitioner never met the respondent No.2 after his retirement. The petitioner has accepted his retirement on his own request and got all retirement benefits including pension, commutation of pension, leave encashment, GPF etc. The petitioner has filed rejoinder. 7. I have heard the learned counsel for the parties. The learned counsel for the petitioner has submitted that petitioner had applied for voluntary retirement on 8.6.2006 to be made effective w.e.f. 30.9.2006. The application for voluntary retirement was submitted by petitioner in view of his family circumstances prevalent at the time of submitting application dated 8.6.2006. The request of the petitioner was accepted by respondent No.2 vide office order dated 25.8.2006 and it was ordered that petitioner shall retire from government service w.e.f. 30.9.2006. The petitioner before the actual retirement submitted the application dated 29.8.2006 to respondent No.2 for withdrawal of his request dated 8.6.2006 in view of improvement of his family circumstances. He also made it clear in the application dated 29.8.2006 that he intended to continue his government service. The request dated 29.8.2006 of the petitioner was not accepted by the competent authority and ultimately Annexures A-5 and A-6 were passed showing that petitioner had retired from 30.9.2006. 8. The learned counsel for the petitioner has relied Balram Gupta vs. Union of India and another 1987 (Supp) SCC 228 in support of his submission that petitioner was well within his right to withdraw the voluntary retirement request after it was accepted but 5 before 30.9.2006 the date from which the petitioner was to be voluntarily retired. The learned counsel for the petitioner for the same proposition has also relied Balbir Singh Negi vs. Union of India and others (1996) 8 SCC 283, J.N. Srivastava vs. Union of India and another (1998) 9 SCC 559 and Shambhu Murari Sinha vs. Project & Development India and another (2000) 5 SCC 621. 9. The learned Assistant Advocate General has submitted that the petitioner was in the habit of making such applications. The application of the petitioner for voluntary retirement was considered by the competent authority and after due application of mind the request of the petitioner was accepted. There was no change of circumstance after the acceptance of the request and, therefore, the competent authority has rightly rejected the request of the petitioner to withdraw his earlier request for withdrawal of voluntarily retirement. The learned Assistant Advocate General has prayed for dismissal of the petition. 10. The facts are in narrow compass. The petitioner submitted his request dated 8.6.2006 for voluntary retirement on the basis of his family circumstances prevalent at that time. This request was accepted by the competent authority on 25.8.2006. The petitioner submitted another request dated 29.8.2006 to the competent authority and requested that in view of improvement of his family circumstances he is withdrawing his earlier request for pre-mature retirement. This request of the petitioner was not accepted, rather he was retired w.e.f. 30.9.2006. The learned Assistant Advocate General has relied on Annexure RA-IV to the following effect:- “ Points raised Government’s decisions 1. Whether a request for The request for withdrawal of notice 6 withdrawal of the notice if received before the date of actual for voluntary retirement retirement should be considered by if received before the the competent authority and the date of actual retirement, request should be allowed if the said should be considered? Authority is satisfied that:- a) there has been substantial change in the circumstances which led the Govt. servant to seek retirement; b) the conduct of the Government servant after submitting notice has not been such as unworthy of a Govt. servant and he has not joined any political activity during this period. 11. The request of the petitioner for withdrawal of his earlier request for pre-mature retirement was not rejected on the ground that the conduct of the petitioner after submitting notice has not been such as unworthy of a Government servant and he has not joined any political activity during the said period. It has been contended that the request of the petitioner was rejected on the ground that there was no substantial change in the circumstances which led the Government servant to seek retirement. 12. The case of the petitioner on 30.9.2006 was considered by the competent authority which is clear from Annexure A-7 placed on record by petitioner alongwith rejoinder and is as follows:- “N-75: On 30.9.2005, the matter was confirmed/discussed in detail in the Administrative Department of this department. The AD has stated that the Personnel Department is in the opinion that the matter be disposed of in the light of instruction contained vide page 711 of the H.P.Personnel Matter Vol.II which is placed vide page 194/Cor. of the file. As per Govt. decision vide Sl. No.1, the request for withdrawal of notice if received before the date of actual retirement should be considered by the competent 7 authority and the request should be allowed if the said authority is satisfied that there has been substantial change in the circumstances which led the Govt. servant to seek retirement. In this connection, it is submitted that Shri Tara Dutt Sharma had submitted his resignation for pre-mature retirement w.e.f. 31.1.2006 vide page 179/Cor. due to his un-avoidable circumstances which was withdrawn vide page 180 Cor. and the same accepted in the first instance. Subsequently, he again applied for premature retirement w.e.f. 30.9.2006 which was considered vide page 189 read with N-63-64 supra. Now again he wants to withdraw the same with the lame excuse and dealt accordingly and propose vide N-69-70. According to his behaviour from the last 9 months, he become habitual to write down for seeking volunteer retirement and once he seek the opportunity to withdraw the notice of retirement, there does not seem any necessity to accept the second opportunity. In view of the above position, his representation may be rejected looking to his behaviour. Accordingly, DFA is added for signature, please.” Sd/- “ 30.9.2006.” 13. The perusal of N-75 reproduced above indicates that the request of the petitioner for withdrawal of voluntary retirement was rejected merely on the ground that he has become habitual to write down to seek voluntary retirement and once he seeks the opportunity to withdraw the notice of retirement, there does not seem any necessity to accept the second opportunity and, therefore, his representation was rejected. This was in context with the stand of respondents that petitioner had earlier submitted his resignation for pre-mature retirement from 31.1.2006 which was lateron withdrawn and the withdrawal was accepted. The number of requests for voluntary retirement and their 8 withdrawal are not relevant what is relevant is whether request for withdrawal is based upon substantial change in circumstances which led the Government servant to seek retirement. In Balram Gupta (supra) the Supreme Court has held as follows:- “We hold, therefore, that there was no valid reason for with- holding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Many complications which had arisen could have been thus avoided by such graceful attitude. The Court cannot but condemn circuitous ways “to ease out” uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees.” 14. The aforesaid N-75 clearly indicates that the request of the petitioner for withdrawal of his request for voluntary retirement was rejected on the ground that he is in the habit of making such requests and earlier also he made such request which was permitted to be withdrawn by the competent authority. Once the earlier request of the petitioner for voluntary retirement was allowed to be withdrawn by the 9 competent authority, then it cannot be said that such request was baseless, rather the respondent cannot be heard to say that the earlier request of the petitioner in the year 2006 for withdrawal of voluntary retirement was baseless when respondents themselves had accepted the request of the petitioner for withdrawal of voluntary retirement. It is clear from the material on record that the case of the petitioner was not considered for withdrawal of voluntary retirement on the basis of subsequent events after 8.6.2006 and mentioned in withdrawal request dated 29.8.2006. In these circumstances, the only conclusion which can be drawn from the material on record is that the competent authority has erred in not allowing the petitioner to withdraw his voluntary retirement from service vide request dated 29.8.2006 which was given by him before the actual date of retirement i.e. on 30.9.2006 from which date he had requested pre-mature retirement. 15. The respondents have placed on record some documents showing therein that the petitioner has received his retiral benefits in pursuance of his retirement w.e.f. 30.9.2006. The respondents cannot take benefit of such situation inasmuch as according to respondents they had retired the petitioner on 30.9.2006. It is the case of the petitioner that he made representation to respondent No.2 and waited the decision of the competent authority on his representation and when no decision was communicated to him he filed the petition. The petitioner was rendered out of job by his forced retirement on 30.9.2006, he had no alternative but to accept the situation till it is rectified in accordance with law. Therefore, acceptance of retiral benefits will not wipe out the right of the petitioner to challenge his forced retirement in accordance with law. The respondents cannot take benefit of the fact 10 that petitioner has accepted his retiral benefits. The respondents cannot take benefit of their own wrong. The respondents cannot be expected to project the case that the petitioner should starve and wait for indefinite period till his case is finally decided. Hence, the plea of respondents that in view of the acceptance of retiral benefits by the petitioner the petition is not maintainable, is rejected. In any case the retiral benefits which the petitioner has received, will be adjusted lateron at the appropriate stage. Thus, Annexures A-5 and A-6 are not sustainable and are liable to be quashed. It is held that the petitioner shall be deemed to be in continuous service irrespective of Annexures A-5 and A-6. 16. No other point was urged. 17. The result of the above discussion, the petition is allowed. Annexures A-5 and A-6 are quashed. The petitioner shall be deemed to be in continuous service for the purpose of continuity of service, seniority, pay fixation etc. as if Annexures A-5 and A-6 were never passed. However, the petitioner shall not be entitled to actual salary w.e.f. 1.10.2006 till he re-joins in pursuance to this judgment. No costs. ( Kuldip Singh ), November 25, 2010, Judge. (GR)