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1999 Supreme(Pat) 1350
PATNA HIGH COURT
Aftab Alam and Shiva Kirti Singh JJ.
Krishna Mohan Srivastava
Versus
High Court Of Judicature At Patna
Civil Writ Jurisdiction Case No. 9989 of 1997 ; 11689 of 1997 ;
Decided On : DECEMBER 17, 1999
The payment of three months' pay and allowance in lieu of notice under rule 74(b) (ii) of the Bihar Service Code was a mandatory requirement and the failure to comply with this requirement rendered the retirement orders void and inoperative.
Headnote:
COMPULSORY RETIREMENT - Bihar Service Code, Rule 74(b) (ii) - Payment of Three Months Pay and Allowance in Lieu of Notice - Mandatory Requirement - Waiver - Estoppel.
Fact of the Case:
Two petitioners, members of the Subordinate Judicial Service of Bihar, were compulsorily retired from service under rule 74(b) (ii) of the Bihar Service Code. The retirement orders specified that they would be paid three months' pay and allowance in lieu of three months' notice. However, the payments were made to the petitioners after the dates of their retirement as specified in the orders.
Finding of the Court:
The court held that the payment of three months' pay and allowance in lieu of notice was a mandatory requirement under rule 74(b) (ii) and that the failure to comply with this requirement rendered the retirement orders void and inoperative. The court also held that the petitioners' acceptance of the payments after the dates of their retirement constituted a waiver of their right to challenge the validity of the retirement orders.
Issues: 1. Whether the payment of three months' pay and allowance in lieu of notice under rule 74(b) (ii) of the Bihar Service Code was a mandatory requirement. 2. Whether the petitioners' acceptance of the payments after the dates of their retirement constituted a waiver of their right to challenge the validity of the retirement orders.
Ratio Decidendi: 1. The court held that the payment of three months' pay and allowance in lieu of notice was a mandatory requirement under rule 74(b) (ii) because: a. The rule empowered the appointing authority to require a government servant to retire from service after giving him either three months' previous notice or an amount equal to three months' pay and allowance in lieu of such notice. b. The rule did not specify any time limit for making the payment, but it was implicit that the payment should be made before or at the time of retirement. c. The purpose of the rule was to protect the interests of government servants who were being compulsorily retired. 2. The court held that the petitioners' acceptance of the payments after the dates of their retirement constituted a waiver of their right to challenge the validity of the retirement orders because: a. The petitioners had a right to challenge the validity of the retirement orders on the ground that the payments were not made in accordance with the rule. b. However, the petitioners had waived this right by accepting the payments without protest.
Final Decision: The court dismissed the petitions, holding that the retirement orders were void and inoperative but that the petitioners were not entitled to any relief because they had waived their right to challenge the validity of the orders.
Aftab Alam, J.
1. The question that arises for consideration in these two cases is whether the action of the State Government in retiring the two petitioners from service, compulsorily in terms of rule 74(b) (ii) of the Bihar Service Code, remains void and inoperative because payment of three months pay and allowance in lieu of the notice was made to the petitioners long after the dates of their retirement as specified in their respective notices.
2. The petitioner in C.W.J.C.No.9989/97 assails the order of his compulsory retirement from service solely on the ground that the payment of three months pay and allowance was made to him after the date of his retirement as specified in the retirement order. The petitioner in C.W.J.C.No.11689/97 assails his order of retirement, apart from the above ground, on some other additional grounds as well but the additional grounds are mostly decorative and the fate of the two writ petitions would ultimately depend on the answer to the question as framed above.
3. The two petitioners (one each in these two writ petitions) were members of the Subordinate Judicial Service of this State. Shri Krishna Mohan Srivastava, petitioner in C.W.J.C.No.9989/97 was posted at the material time as Subordinate Judge. Shri Basudeo Sharan, petitioner in C.W.J.C.No.11689/97 was posted at the material time as Additional Munsif. On a consideration of their entire service records the High Court took the decision that it would not be in public interest to retain them in service beyond the age of 50 years. The Registrar General of this Court by his letter, dated 10.12.1996 forwarded the decision of the High Court to the Secretary to the Government in the department of Personnel and Administrative Reforms and made the recommendation that the two petitioners, along with two others, be made to retire compulsorily, in public interest, under rule 74(b) (ii) of the Bihar Service Code on giving them three months salary in lieu of three months notice.
4. On the basis of the decision of the High Court, retirement orders, dated 2.8.1997 were issued in respect of the two petitioners. In these orders (Annexure-1 in C.W.J.C. No.9989/97 and Annexure-4 in C.W.J.C.No.11689/97) issued in the name of the Governor of Bihar it was stated that as the petitioners had completed 50 years of age and further as in the opinion of the Governor it was in public interest to do so, the petitioners were being made to retire compulsorily in exercise of powers under rule 74(b) (ii) of the Bihar Service Code w.e.f. the forenoon of August 16,1997 or the date of service of the order on them, whichever being earlier, and that they will be paid the amount equal to three months pay and allowance in lieu of three months previous notice.
5. The retirement order of Shri Krishna Mohan Srivastava was served upon him on 16.8.1997 and the retirement order of Basudeo Sharan was served upon him on 14.8.1997.
6. It is, however, an admitted position that neither of the two petitioners were given three months pay and allowance either before or at the time of service of their respective retirement orders. Shri Srivastava was finally paid a sum of Rs.32,737.50 paise on 18.7.1997, that is slightly over a month after the specified date of his retirement.
7. Learned counsel for the petitioner stated that on the basis of the pay last drawn by Shri Srivastava, the amount equal to three months salary and allowance would be Rs. 33,397.50 paise and thus the amount paid to him was slightly lesser than his three months salary. We are not inclined to entertain this plea, based on the difference of computation, being raised for the first time before this writ court.
8. But the admitted position remains that the three months salary and allowance in lieu of three months previous notice was paid to Shri Srivastava a month afte,r the date of his retirement as specified in the order.
9. Mr.Tej Bahadur Singh, learned counsel, for the petitioner repeatedly stated that he did not p
