1985 Supreme(AP) 268

Andhra Pradesh High Court
Judges : K.JAYACHANDRA REDDY, K.RAMASWAMY
N.Ranga Rao - Appellant
Versus
Government of India - Respondent
Decided On : 06-26-85

The acceptance of the request for voluntary retirement becomes effective from the date of its communication to the officer and not from the date of acceptance by the competent authority.

Headnote:

K. RAMASWAMY, J. ( 1 ) "to be" or "not to be" was the question with which like Hamlet, the appellant was confronted with and in the conflagration thereof he opted to relinquish his office as Major in Army EME to assuage from domestic tribulations and sent letter dated 29/10/1982 for voluntary retirement. Though he retraced the step after reflection he is landed in legal tangle and knocked the door of this Court under Art. 226 of the Constitution to extricate therefrom. For the elaboration thereof, it is necessary to delineate in a nutshell the undisputed facts : While having Bachelors course of Engineering and N. C. C. , the appellant had the short service commission on 22/02/1965 and in a short span scaled over to higher echelons of service in quick succession, as a Major and was discharging his duties in the Military College of Electrical and Mechanical Engineering at Secunderabad. He has exhibited undaunted exemplary valour on war front in 1971 and devotion to duty unmindful of consequences to his person and brought two abandoned enemy tanks after due repair and earned unquestioned reputation to be an Officer of efficiency, integrity and relentless devotion to duty, in fairness to the respondents, they accepted this as a fact at more than one place in the note file. In August 1982, he was transferred from Secunderabad and was posted at Assam. At that juncture he was baffled with domestic tribulations to look after all his ailing dependents, etc. and he was in a fix and even was prepared to forego sixteen years benefit of service and opted to lay down the office in peace time military service and submitted an application dated 29/10/1982. In the interregnum he was screened by a Selection Board in December 1982 for promotion as Asst. Lt. Colonel and selected him. Having had reflections and got mitigated domestic problems, he submitted his application dated 27/05/1983 through proper channel withdrawing his letter 29/10/1982. But a day interluded i. e. , 28/05/1983, the Army Headquarters communicated an order accepting his request for premature retirement and it was served on the appellant on 2/07/1983. On receipt of the letter dated 27/05/1983, the Army Headquarters suo motu kept in abeyance the operation of the letter dated 28/05/1983 accepting his request to voluntarily retire, and he was allowed to continue in uninterrupted service. His request withdrawing the application for premature retirement was rejected by order dated 19/10/1983, and was communicated resulting in his filing the writ petition. This Court suspended the operation of the order dated 28/05/1983 (accepting his request for premature retirement) and the appellant has been continuing in service. At final hearing the writ petition was dismissed and hence this appeal.

Fact of the Case:

The appellant, a Major in the Army, applied for voluntary retirement on 29/10/1982 due to domestic tribulations. He was selected for promotion to Asst. Lt. Colonel in December 1982. He withdrew his application for voluntary retirement on 27/05/1983. However, the Army Headquarters communicated an order accepting his request for premature retirement on 28/05/1983, which was served on him on 2/07/1983. The Army Headquarters kept the operation of the order in abeyance and allowed him to continue in service. His request for withdrawal of the application for premature retirement was rejected on 19/10/1983. He filed a writ petition, which was dismissed. Hence, this appeal.

Finding of the Court:

The Court held that the acceptance of the request for voluntary retirement becomes effective from the date of its communication to the officer and not from the date of acceptance by the competent authority. In this case, the appellant had already withdrawn his application for voluntary retirement before the acceptance was communicated to him. Therefore, the order accepting his request for voluntary retirement was void and inoperative. The Court also held that the order rejecting the appellant's application for withdrawal of his request for voluntary retirement was illegal and void.

Issues: 1. Whether the Minister of State was competent and had jurisdiction to accept the request for voluntary retirement. 2. When the acceptance of such request becomes effective? 3. Whether it is obligatory for the authorities to accept his request for withdrawal of premature retirement.

Ratio Decidendi: 1. The Minister of State was competent and had jurisdiction to accept the request for voluntary retirement as he was duly authorized to deal with the said matters at the relevant period. 2. The acceptance of the request for voluntary retirement becomes effective from the date of its communication to the officer and not from the date of acceptance by the competent authority. 3. It is obligatory for the authorities to accept the request for withdrawal of premature retirement before it is communicated to the officer.

Final Decision: The writ appeal was allowed and the Rule Nisi was made absolute. The orders accepting the appellant's request for voluntary retirement and rejecting his application for withdrawal of his request for voluntary retirement were quashed. The respondent was directed to consider giving effect to the promotion of the appellant as Asst. Lt. Colonel.