IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10719 of 2004 ============================================= Ganesh Pandey, s/o- Late Brihaspati Pandey, r/o- Mohalla- Chandpur Bela, P.S.- Jakkanpur, District & Town- Patna. .... .... Petitioner/s Versus 1. The Bihar School Examination Board, Patna through its Secretary. 2. The Chairman, Bihar School Examination Board, Patna. 3. The Secretary, Bihar School Examination Board, Patna. .... .... Respondent/s ============================================= Appearance : For the Petitioner/s : Mr. Satish Chnadra Mishra For the Respondent/s : Mr. Girijanand Kumar ============================================= 11 20-09-2011 Petitioner was appointed as Assistant in Bihar School Examination Board (for short “ the Board”). Having served the Board for several years, he, owing to the disease (Throat Cancer) he was found suffering with, submitted an application (Annexure-2) on 16.5.2004 seeking voluntary retirement from the service of the Board w.e.f. 31.5.2004. Petitioner thereafter changed his mind and filed application on 29.5.2004 (Annexure-3) praying therein to reject his application seeking voluntary retirement since he has substantially recovered from his ailment. Be it noted that the date of birth of the petitioner recorded in the Service Book was 13.7.1947 and as per the then prevailing provision of law, he was slated to retire w.e.f. 31.7.2005 on attaining 58 years of age . With the enhancement in the retirement age, the petitioner was scheduled to retire w.e.f. 31.7.2007. The 2 respondents, by a communication dated 28.5.2004 (Annexure-4) communicated that his application for voluntary retirement from the service of the Board has been allowed and he would demit the office from the afternoon of 31.5.2004. The wife of the petitioner filed a representation on 30.5.2004 (Annexure-5) permitting her husband to continue in the service which was not replied. Again a representation was filed by the petitioner on 27.7.2004 (Annexure-7) which did not yield any response. Petitioner, thus, filed the present writ petition on 8.9.2004. During the pendency of this application, the respondent considered and rejected his representation which has been brought on record by filing interlocutory application being I.A. No. 5367 of 2004. The respondents, during the pendency of this application, considered and rejected the representation filed by the petitioner on 29.5.2004 (Annexure-3) which has also been brought on record and challenged by filing I.A. No. 1229 of 2006. Learned counsel appearing in support of the application submits that the respondents acted illegally and arbitrarily in passing the order dated 28.5.2004 (Annexure-4) since on the day the said order was passed, the petitioner 3 continued in service and had the option to withdraw his notice seeking voluntary retirement which was to take effect w.e.f. 31.5.2004. The petitioner has relied on a judgment of the Hon’ble Supreme Court in the case of Shambhu Murari Sinha versus Project & Development India Ltd. since reported in 2002 (2) P.L.J.R. 172 (S.C.), particularly paragraph Nos. 11 and 19 thereof. A counter affidavit has been filed on behalf of the respondent Board. Learned counsel appearing on behalf of the respondent(s) has supported the impugned action. It is contended that considering the physical and mental condition of the petitioner spelt out in the letter seeking voluntary retirement (Annexure-2), the respondent accepted the same and issued order dated 28.5.2004 (Annexure-4). While accepting his request seeking voluntary retirement, the respondents took into consideration the request as well as the sagging physical condition of the petitioner which had rendered him incapable to discharge duties in the office of the respondent Board. It is also contended that communication dated 29.5.2004 (Annexure-3) was addressed to the Secretary of the Board and not to the Chairman of the Board. Relying on a judgment of the Apex 4 Court in the case of Balbir Singh Negi versus Union of India since reported in (1996) 8 S.C.C. 283. It is argued that the application has become infructuous since the relief of re- induction into service cannot be granted to the petitioner who already attained the age of superannuation. Heard learned counsel for the petitioner and the learned counsel for the respondent Board and perused the pleadings on record filed by the parties. The question begging answer in the present application is whether the respondent Board was justified in passing the order dated 28.5.2004 (Annexure-4) whereby they accepted the resignation before the expiry of the period indicated in the letter seeking voluntary retirement. If the answer of the aforesaid question is in negative then the petitioner is entitled to what relief(s). The first question would not detain this Court much since the said issue has already been considered and decided by the Apex Court in Shambhu Murari Sinha (supra). The Hon’ble Apex Court, referring to the ratio laid down in the Union of India and others versus Gopal Chandra Misra & Others [ (1978) 2 SCC 301] held that a prospective resignation can be withdrawn at any time before it becomes 5 effective. The Hon’ble Supreme Court, referring to the ratio laid down in Balram Gupta vs. Union of India & Anr [(1987) Supp. SCC 228], further held that the dissolution of contract of employment would, in such matter, be brought about only on the date indicated in the letter seeking voluntary retirement. Up to that date the employee shall be deemed to continue as government servant/employee and, therefore, had the option to withdraw his notice seeking voluntary retirement from a prospective date. The Apex Court, on a consideration of the various judgments on the issue concluded as under in paragraph 19 of the said report: “19. We, therefore, hold that the respondent could not have refused to accept the (sic- withdrawal of?) resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end…………..” In view of the aforesaid ratio laid down by the Hon’ble Supreme Court, this Court finds substance in the submission of the petitioner that the respondent Board acted illegally and unjustly in passing the order dated 28.5.2004 (Annexure-4) well before 31.5.2004 with effect wherefrom the notice seeking voluntary retirement (Annexure-2) was intended to be effective. This takes the Court to another aspect of the matter. 6 Learned counsel for the Board has submitted that this Court should refrain from granting any relief to the petitioner considering the fact that the petitioner, in the normal course, was destined to superannuate w.e.f. 31.7.2007. Reliance in this regard has been placed on Balbir Singh Negi (supra). In the case aforesaid, the appellant challenged the order of Central Administrative Tribunal (for short “C.A.T”), Chandigarh Bench passed on 17.11.1995 whereby relief prayed for in the original application was refused. The appellant, after completing 33 years of qualifying service, had submitted an application seeking voluntary retirement which came to be accepted on 2.5.1991 w.e.f. 30.6.1991 as requested by the appellant. On 2.5.1991, the appellant sought to withdraw his application seeking voluntary retirement which was not accepted. Aggrieved thereby, he approached the C.A.T. raising a grievance that he was entitled to withdraw his application before the effective date of voluntary retirement. It appears that the Tribunal refused to grant him the relief permitting him to withdraw his application seeking voluntary retirement. Learned counsel for the petitioner, on the other hand, submitted that the factual background in which the aforesaid judgment was 7 rendered was entirely different. The appellant of the said case was on leave for one year prior to the date of seeking voluntary retirement on medical ground as he was unable to discharge the duties. He was also frustrated with the order transferring him from one place to another. In the case at hand, the voluntary retirement was initially sought to be effective from 31.5.2004 on the medical grounds but before expiry of the period indicated therein, another application was promptly filed on 29.5.2004 wherein it was categorically asserted that he has recovered and is able to discharge the official duties. Regard being had to the facts of the present case, this Court is satisfied that the facts of the present case are not similar to the facts of the case based thereon the Apex Court passed order in Balbir Singh Negi (supra). There is another connected aspect of the matter which assumes relevance. In a case where the Court or Tribunal grants relief which may result in reinstatement in service, the Court or Tribunal has to act with circumspection in granting pecuniary benefits for the period the employee was out of service. It is a discretion independent of the ultimate relief granted to the petitioner. Entitlement to 8 salaries and/or wages is not automatic. The entire factual scenario and the principles of equity, justice and good conscience should be kept in view while deciding on the entitlement of the petitioner to back wages. Petitioner was suffering from a dreaded disease. In the application seeking voluntary retirement, he spelt out his physical and mental condition. There is no materials on record to find as to how the petitioner was placed during the period he was out of service. There is nothing on record also to show that the petitioner, during the period he was out of service, was not earning anything from any other source. Taking into consideration all the factors relevant for exercise of such discretion, this Court is satisfied that the present application be disposed of by the following order: (i) The order dated 28.5.2004 (Annexure-4) is quashed and set aside. (ii) The petitioner shall, accordingly, be treated in service till he attained age of superannuation. (iii) The petitioner shall be entitled to 50 % of the salary payable to him for the period he remained out of service until attaining age of superannuation from service. While computing the amount, the respondent shall not take 9 into consideration the increment, if any, which the petitioner could have earned while in active service of the respondent Board. (iv) The respondent shall calculate the amount payable to the petitioner by way of back wages/salary as per the present order and shall authorize payment thereof in his favour within a maximum period of 10 weeks from the date of receipt/production of a copy of the order. If the respondents fail to authorize such payment within the stipulated period of 10 weeks, the petitioner shall also be entitled to payment of cost quantified at Rs. 10,000/- (ten thousand) besides the entitlement as per the present order. (v) The period for which the petitioner remained out of service till attaining age of superannuation shall be counted as spent on duty for the purpose of payment of terminal benefits, if any. There shall be no order as to costs. PANKAJ KUMAR/- (Kishore K. Mandal, J)