Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Bom) 755

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR.
NITIN W. SAMBRE, ABHAY J. MANTRI, JJ.
Union Of India & Others – Appellants
Versus
Satish Namdeorao Andraskar – Respondent
Writ Petition No. 3797 of 2024
Decided on : 26-07-2024

Advocates:
Advocate Appeared:
For the Appellant : Ms. Ashwini Athalye
For the Respondent:Mr. M.M. Sudame, Senior Advocate with and Shri A.M. Sudame

IMPORTANT POINT
The discretion to accept or reject voluntary retirement applications must be exercised judiciously, considering the employee's circumstances and not arbitrarily.

Headnote:
Voluntary Retirement - Union of India - CCS Pension Rules - The court interpreted Rule 48-A of the CCS Pension Rules, emphasizing that voluntary retirement is not an absolute right but must be considered judiciously by the employer, especially in light of the employee's circumstances.
Fact of the Case:
The respondent, after facing personal tragedies and health issues, applied for voluntary retirement under the CCS Pension Rules. His application was rejected by the petitioners, prompting him to challenge the decision in the Central Administrative Tribunal, which ruled in his favor.
Finding of the Court:
The court found that the respondent met the conditions for voluntary retirement under Rule 48-A and that the petitioners' rejection was arbitrary, especially given the respondent's personal hardships and health issues.
Issues: Whether the petitioners had the discretion to reject the respondent's application for voluntary retirement under the CCS Pension Rules and if the Tribunal's order was justified.
Ratio Decidendi: The court held that while the employer has discretion in accepting voluntary retirement applications, this discretion is not absolute and must be exercised judiciously, particularly considering the employee's circumstances.
Result: The petition was dismissed, upholding the Tribunal's order to accept the respondent's voluntary retirement.

Judgement Key Points

Case Summary

Parties and Procedural History
Union of India & Others (Appellants/Petitioners) challenged the Central Administrative Tribunal (CAT), Mumbai Bench order dated 01.03.2024 in O.A. No. 802/2023, which allowed the respondent-employee's voluntary retirement application dated 09.05.2023 and quashed rejection dated 07.07.2023 and Circular dated 12.05.2023 (!) (!) (!) .

Facts
- Respondent appointed as Lower Division Clerk on 27.08.1996, promoted to Upper Division Clerk (10.01.2011) and Assistant (12.01.2021) (!) .
- Suffered family tragedies: brother's family died in accident, parents depressed, father died, mother lost speech, suffered depression, cancer, diabetes; respondent has uncontrolled diabetes, breathing issues (!) (!) .
- Applied for retention at Nagpur (24.03.2023); gave transfer preferences (West Circle Vadodara, North Circle) but transferred to Guwahati (25.04.2023, ~1851 km away), joined 08.05.2023, took leave post 14.05.2023 (!) (!) (!) (!) (!) .
- Submitted 3-month voluntary retirement notice under Rule 48-A & 48-B CCS (Pension) Rules on 09.05.2023 (!) (!) (!) .

Petitioners' Arguments
- Discretion under Rule 48-A(2) CCS Pension Rules to accept/reject voluntary retirement absolute (!) (!) .
- Tribunal erred on respondent's age (not 57 years) (!) .
- Relief contrary to Circular 12.05.2023 and Rule 56(k)(1) Fundamental Rules; staff shortage/public interest/public policy (!) (!) (!) .
- Voluntary retirement not absolute right (!) .

Respondent's Arguments
- Qualifies under Rule 48-A CCS Pension Rules (20+ years service, 3-month notice, no disciplinary/prosecution issues) (!) (!) (!) .
- Rule 56(k)(1) FR inapplicable (elected CCS Pension Rules remedy) (!) (!) .
- Circular 12.05.2023 overrides rules, invalid; rejection arbitrary (!) (!) .
- Discretion not absolute, must be judicious (!) (!) .

Court's Analysis and Findings
- Respondent completed 26+ years service, no disciplinary/prosecution bars; entitled to apply under Rule 48-A(1), acceptance required under Rule 48-A(2) unless expiry deems effective (!) (!) (!) (!) .
- Rule 48-A rejection grounds limited (disciplinary/prosecution); staff shortage not valid (!) .
- Rule 56(k)(1) FR inapplicable (doctrine of election of remedies; chose CCS Pension Rules) (!) (!) .
- Discretion not absolute/arbitrary (violates Article 14); consider employee circumstances (health/family hardships, unwanted transfer) (!) (!) .
- Circular 12.05.2023 contravenes rules, invalid (executive instructions cannot override statutory rules) (!) .
- Tribunal's age error immaterial; upheld direction to accept VRS w.e.f. 09.08.2023 (or 09.05.2023 per Tribunal), release benefits (!) (!) .

Ratio Decidendi
Employer discretion to accept/reject voluntary retirement under Rule 48-A CCS Pension Rules not absolute; must be exercised judiciously, considering employee's circumstances (e.g., health/family issues), not arbitrarily (e.g., staff shortage) [p_1 (IMPORTANT POINT)] (!) (!) (!) .

Result
Writ petition dismissed; Tribunal order upheld; respondent retired w.e.f. 09.08.2023; pension/benefits directed (!) (!) (!) .

JUDGMENT :

(PER : NITIN W. SAMBRE, J.)

Heard finally.

This is a petition by the Union of India questioning the order dated 01.03.2024 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai (for short the “Tribunal”) in Original Application No.802 of 2023 (Satish Namdeorao Andraskar v. Union of India and others). In the said original application preferred by the respondent-employee, the challenge was to the decision dated 07.07.2023 issued by the petitioners thereby rejecting the prayer of the respondent who is working as an Assistant for grant of voluntary retirement, which was moved on 09.05.2023.

2. The Tribunal vide order impugned dated 01.03.2024 has allowed the original application and directed the acceptance of notice of voluntary retirement dated 09.05.2023 referred supra. A further declaration is awarded that the respondent stood retired on 09.05.2023 and directions are also issued to the petitioners, to take necessary steps for release of pension and pensionary benefits of the respondent within a period of three months from the date of receipt of certified copy of the said order. As a sequel of above, the Circular dated 12.05.2023 issued by petitioner No.2 came to be quashed, as the circular puts an embargo contrary to the relevant rules on the power of the petitioners to process and accept a request for voluntary retirement.

3. The facts necessary for deciding the writ petition are as under:

(a) Through Staff Selection Commission the respondent was selected on 27.08.1996 as a Lower Division Clerk and was promoted to the post of Upper Division Clerk vide order dated 10.01.2011. A further promotion was conferred on 12.01.2021 in favour of the respondent on the post of Assistant.

(b) The respondent in past couple of years has suffered certain calamities in his family life viz. the death of entire family of his brother in an accident, his father and mother underwent depression because of the same, the death of his father subsequent thereto and his mother losing her speech. As a sequel of this, not only the respondent is suffering from the hardship but also his health is informed to have been deteriorated.

(c) The respondent accordingly moved an application on 24.03.2023 citing cause of his hardship with a request for grant of retention in his favour at Nagpur office.

(d) It appears that under the scheme which is adopted by the petitioners for the purpose of effecting annual transfers, the respondent’s option was invited and the respondent accordingly, furnished preferences of getting transferred to West Circle, Vadodara and North Circle.

(e) The petitioner authorities ignoring the aforesaid preferences which were furnished by the respondent, ordered his transfer to Guwahati vide order dated 25.04.2023.

(f) Honouring such transfer order, the respondent joined his duties on 08.05.2023, worked till 14.05.2023 and thereafter went on earned leave for a period from 15.05.2023 to 19.05.2023. Subsequent thereto, the respondent submitted a prayer for extension of leave which was subsequently followed with a request for grant of voluntary retirement pursuant to the provisions of Rule 48 of the CCS Pension Rules.

(g) The prayer as moved by the respondent on 09.05.2023 for grant of voluntary retirement was rejected vide communication dated 07.07.2023, which has prompted the respondent to prefer an original application before the Tribunal.

4. Since the original application is allowed by the Tribunal, the present writ petition.

5. The learned Counsel appearing for the petitioners has made threefold contentions; (a) That whether to grant voluntary retirement or not, is purely within the domain and ambit of the petitioners. A support is drawn from the provisions of Rule 48-A(2) of the CCS Pension Rules; (b) That the Tribunal has committed an error of fact by considering that date on which application was tendered by the respondent for voluntary retirement his age was 57 years; and (c) The Tribunal proceeded to grant relief contrary to th