2006 Supreme(SC) 708

2006(6) Supreme 466
SUPREME COURT OF INDIA
(From Gauhati High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Ashok Kumar Sahu — Appellant
versus
Union of India & Ors. — Respondents
Civil Appeal No. 59 of 2004
Decided on 8-8-2006
Counsel for the Parties :
For the Appellant : In-person (Ashok Kumar Sahu).
For the Respondents : Vikas Singh, A.S.G., Mrs. Rekha Pandey, Ms. Sushma Suri, J.R. Luwang, Ms. Ponum Arora (for M/s. Corporate Law Group) and Ranjan Mukherjee, Advocates.

IMPORTANT POINT
In view of amendment in sub-rule 2A of Rule 16 of All India Services (Death-Cum-Retirement Benefits) Rules, an offer of retirement made by a member of service requires acceptance by Central Govt. and not by State Govt.

Headnote:SERVICE LAW — Voluntary Retirement — All India Services (Death-cum-Retirement Benefits) Rules, 1958 — Rule 16 sub-rule 2A — Appellant, member of Indian Police Service, placed under suspension on 4-6-1997 and facing disciplinary proceedings on charge of misconduct, desired to retire from service w.e.f. 1-8-1997 — State Govt. forwarded said request for approval by Ministry of Home Affairs — Central Govt. Communicated its approval and Governor of State by notification dt. 8-9-1997 accepted voluntary retirement — Appellant filed writ in 1999 questioning legality of retirement — High Court dismissed the writ — Appeal — offer of voluntary retirement could be made and accepted in terms of Rule in three different situations — In view of amendment in Rule, offer of retirement made by a member of service required acceptance by Central Govt. and not by State Govt. — Order passed by an authority without jurisdiction would be non-est — Issuance of notification of Governor of State accepting said offer was bad in law — As regards contention that offer to retire was required to be communicated before 1-8-1997, offer can not be said to have accepted automatically unless rule provided therefor — Rule in the case-though did not specify date for communicating such acceptance, ordinarily such acceptance should be within period of notice — Withdrawal of offer in 1999 by appellant was impermissible — In disciplinary proceedings, no action was taken and only punishment of censure was imposed on premise that appellant had already made an offer of voluntary retirement — Acceptance of offer of appellant must be judged only on that premise — Fit case for exercise of jurisdiction under Article 142 of Constitution of India and in facts and circumstances instead of directing reinstatement of appellant, directions issued for certain benefits.

       Held : In law, offer of voluntary retirement can be made and accepted in terms of the said Rules, inter alia, in three different situations :

       (a)On completion of 20 years of service;

       (b)When an employee is placed under suspension; and

       (c)If he has completed more than 20 years of service or 50 years of age.

       Whereas in the first situation acceptance of the proposal is not required, in the second and third, acceptance of the offer by the competent authority would be required. The appellant was born on 23rd January, 1953. He was directly appointed as a member of the Indian Police Service on 16.7.1975. Indisputably, the conditions of services are governed by the provisions of the All India Services Act, 1951 and the Rules and Regulations framed thereunder. He belonged to Joint Cadre of Assam & Meghalaya. It is not in dispute that by a notice dated 30th April, 1997, he sought for voluntary retirement with effect from 1.8.1997. (Paras 8 and 9)

       In view of the said amendment, thus, an offer of retirement made by a member of service requires acceptance by the Central Government and not by the State Government. The materials on records, as noticed hereinbefore, clearly point out that the authorities proceeded on the basis of the Rules prior to amendment. In terms of the amended Sub-rule (2A) of Rule 16, the offer of the appellant was required to be accepted by the Government of India and not by the Joint Cadre Authority. The question of application of mind by the Joint Cadre Authority for the purpose of acceptance of the said offer and/or approval thereof by the Government of India does not arise. At the first instance it was obligatory on the part of the competent authority of the Central Government to apply its own mind and pass an appropriate order. The competent authority could not have delegated its power to the Joint Cadre Authority or for that matter, the State of Assam. (Para 13)

       We have made the aforementioned observations keeping in view the fact that if the Central Government intended to consider the matter from the latter angle, it would have communicated the same to the appellant directly. It did not do so. It approved the action of the Joint Cadre Authority. It directed the State of Assam to issue orders/notifications accordingly. As the offer of the appellant was to be accepted by the Central Government and communicated to him, the issuance of notification dated 1.8.1997 by the Governor of Assam accepting the said offer is bad in law. (Para 20)

       Having regard to the facts and circumstances of this case, we are of the opinion, that it is a fit case where we should exercise our jurisdiction under Article 142 of the Constitution of India. It is now well settled that the court in appropriate cases may decline to exercise its jurisdiction although it would be lawful to do so. {See A. Umarani v. Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112] and Des Raj (Deceased) Through LRS. & Ors. v. Union of India & Anr. [(2004) 7 SCC 753].}(Para 39)

       Keeping in view the principles laid down in the aforementioned decisions, we are of the opinion that the interest of justice, having regard to the peculiar facts and circumstances of this case, shall be sub-served if instead of directing reinstatement of the Appellant in service, the following directions are issued :

       (i)The Appellant shall be paid all his pensionary benefits with interest at the rate of 9 per annum with effect from 1st August, 1997.

       (ii)The Appellant shall be paid his salary for the period 1st August, 1997 to 8th September, 1997.

       (iii)The Second Respondent shall pay and bear the costs of the Appellant, which is quantified at Rs.50,000/-.

       The Appeal is allowed to the aforementioned extent and on the aforementioned terms.(Para 40)