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IN THE HIGH COURT OF JUDICATURE AT PATNA
Sanjeev Prakash Sharma, J.
Hareramacharya, son of Late Ramchandra Sharma - Appellant
Vs.
The Union of India through Secretary, Ministry of Human Resources Development, New Delhi - Respondent
Civil Writ Jurisdiction Case No.38 of 2022
Decided On : 11-01-2023
Constitution of India – Article 226 read with Article 12 – Maintainability of Writ Petition – Question in each case would be whether in light of cumulative facts has established that body is financially, functionally and administratively dominated by, or under control of Government – Such control must be particular to body in question and must be pervasive – There is administrative, financial and overall control on Sanskrit College by Union of India through Central Sanskrit University while individual appointments in colleges may be made by governing body – However, Adarsh Sanskrit norms under Scheme of 2012 had to be followed by such employees – Writ Petition would lie with regard to relief claimed by petitioner. (Paras 13 to 16)
Service Law – Voluntary Retirement – Withdrawal – Presumption cannot be drawn that VRS application was accepted by Chairman – Petitioner had locus poenitentiae to withdraw his VRS application before its acceptance – Petitioner is a non-Ph.D. and as per UGC rules, he attains superannuation on completing 62 years of age – Action of respondents, is bad in law and deserves to be set aside – However, by operation of law, a benefit cannot be extended to a person who may not be entitled to the same – Petitioner had attained superannuation age – As there is no reemployment granted to petitioner nor he possess Ph.D. degree, he cannot be allowed to continue after 62 years of age – At best, he has to continue up to the date when he submitted his VRS application – He has to be treated to have retired as on the date and he would be entitled to salary up to date he has worked. (Paras 18, 19, 27, 28, 29 and 30)
JUDGMENT :
1. Heard the parties.
2. The brief facts which require to be noticed for adjudication of this case are that the petitioner was appointed as a Principal of Sriswami Parankushacharya Adarsh Sanskrit Mahavidyalaya (hereinafter referred to as the ‘Sanskrit College’ on 22nd February, 1990 and presently has been working on the said post. The college receives financial assistance under the scheme for institutions recognized as Adarsh Sanskrit Mahavidyalaya with the Central Sanskrit University is the nodal agency working for the Ministry of Education, Government of India, which provides funds to it.
3. As per Clause 61 of the Revised Adarsh Scheme, 2012, an employee may, by giving notice of one month, in writing resign from the services of the institution. However, the appointing authority may, at its discretion, waive the condition of one month’s notice.
4. The petitioner submitted an application online vide letter dated 12.11.2021 to the Vice Chancellor of Central Sanskrit University seeking voluntary retirement from the post of Principal. The Vice Chancellor vide his letter no.633 dated 12.11.2021, sent a communication online to the Chairperson of the Managing Committee giving his consent for accepting the request of the VRS and communicated to the management of the college to take steps to appoint senior most teacher on the post of Principal. Accordingly, the Managing Committee held that voluntary retirement of the petitioner was accepted on 12.11.2021 itself and proceeded to appoint respondent no.7 to the post of Principal and communicated to the petitioner and 13.11.2021 the new incumbent joined on the post of Principal.
5. The petitioner sent a request for withdrawal of his resignation letter on 14.11.2021 to the Vice Chancellor pointing out that the retirement age has been increased to 65 years, and therefore, he would like to continue on the post of Principal. The letter was addressed to the Vice Chancellor and the same was further conveyed to the Management Committee on 16.11.2021. The Deputy Secretary of the Government of India conveyed the letter to the Vice Chancellor to take a decision in view of withdrawal of the letter of voluntary retirement. The petitioner has thereafter preferred writ petition before this Court praying to direct the respondent to accept the withdrawal of earlier request of VRS and he be allowed to function as Principal.
6. Learned counsel for the petitioner submits that the petitioner has been deprived to withdraw the voluntary retirement application and if one month time has been provided for notice in cases relating to resignation, the voluntary retirement application filed by the petitioner could not have been accepted on the same day, when the petitioner has sent it to the Vice Chancellor at Delhi. Learned counsel submits that the Central Sanskrit University’s Vice Chancellor had only given consent to allow voluntary retirement to the petitioner with request to the Chairman of the managing committee to accept the said voluntary retirement. Thus, on 12.11.2021, it can not be said that the Vice Chancellor had accepted the voluntary retirement of the petitioner but had only given his consent with direction to the Chairman to accept it. However, the Chairman on 12.11.2021 itself proceeded to pass a notification declaring that the Vice chancellor has accepted the VRS and proceeded to appoint respondent Venkatesh Sharma as Principal of the college. Learned counsel submits that the order does not mention of accepting voluntary retirement by the Chairman and he has not been relieved from his duty. Learned counsel submits that the order appears to have been back dated as it was not possible as for having passed the order on the same day when the petitioner has moved the application of voluntary retirement. The original record of the management was also called for in the Court and they have not been able to place any letter or facts by which they were conveyed of the decisions of the Vice chancellor
An employee's request for voluntary retirement can be withdrawn before it takes effect, and the intention behind the request must be considered in determining its nature.
An employee cannot withdraw his resignation after it has been accepted by the employer.
An employee can withdraw a voluntary retirement application before the effective date of retirement, as affirmed by the Court, ensuring that rights under Article 21 are protected; engaging in post-re....
The central legal point established in the judgment is that the age of superannuation for Principals and the requirement of a Ph.D. degree for continuation beyond the age of 62, as mandated by the UG....
Voluntary retirement requires explicit acceptance from the appointing authority and cannot be deemed effective solely based on a lack of response.
Point of Law : Rule 48-A of CCS (Pension) Rules is extracted retirement on completion of 20 years' qualifying service.
An employee has the right to withdraw the proposal for voluntary retirement before the jural relationship of employee and employer comes to an end.
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