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IN THE HIGH COURT OF JUDICATURE AT PATNA
P.B. BAJANTHRI, HARISH KUMAR, JJ.
Kanhaiya Singh, S/o Late Ram Ayodhya Singh – Appellant
Versus
The State of Bihar – Respondent
Letters Patent Appeal No.1140 of 2019 In Civil Writ Jurisdiction Case No.20149 of 2018
Decided on : 15-03-2023
VOLUNTARY RETIREMENT - SERVICE LAW - Rule 74(b) of the Bihar Service Code - 74(a) The State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation shall be entertained. (b)(i) Notwithstanding anything contained in the preceding sub-rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:] Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the Rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Justice.][(ii) The appointing authority concerned may after giving a Government servant at least three month's previous notice in writing, or an amount equal to three month's pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.][(iii) A Government servant who retires voluntarily is required to retire in public interest under this Rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity.
Fact of the Case:
The writ petitioner-appellant, a government servant, sought voluntary retirement after completing 22 years of service and attaining the age of 50. However, he had a history of unauthorized absence and was facing departmental proceedings. The department rejected his application for voluntary retirement on the grounds of incomplete service and pending proceedings.
Finding of the Court:
The court found that the rejection of the voluntary retirement application was lawful, considering the petitioner's unauthorized absence and pending departmental proceedings. The court also emphasized that the suspension of an employee is essential in the context of departmental proceedings, and the application for voluntary retirement does not automatically grant the right to retirement.
Issues: The main issue was whether the rejection of the voluntary retirement application was justified based on the petitioner's unauthorized absence and pending departmental proceedings.
Ratio Decidendi: The court held that the rejection of the voluntary retirement application was lawful, as the petitioner's unauthorized absence and pending departmental proceedings were valid grounds for refusal. The court also clarified that the suspension of an employee is essential in the context of departmental proceedings, and the application for voluntary retirement does not automatically grant the right to retirement.
Final Decision: The court upheld the rejection of the voluntary retirement application but allowed the petitioner to challenge the outcome of the departmental proceedings separately. If the outcome is quashed or the petitioner is exonerated, the application for voluntary retirement shall be reconsidered.
JUDGMENT :
HARISH KUMAR, J.
Heard Mr. Ashok Kumar Choudhary, learned senior counsel, duly assisted by Mr. Rajeev Kumar Singh and Mr. Akshansh Ankit, learned counsel for the writ petitioner-appellant. The State is represented by Mr. S.D. Yadav, learned AAG-9.
2. The challenge in the present Letters Patent Appeal is to an order dated 31.07.2019 passed by the learned Single Judge in C.W.J.C. No. 20149 of 2018.
3. The sole ground for challenge made in the present appeal as canvassed by the learned senior counsel is that while passing the order under appeal, the learned Single Judge failed to appreciate the fact that on the date of application for “Voluntary Retirement” submitted on behalf of the writ petitioner-appellant on 03.07.2010, there was no impediment to grant the benefit under V.R.S., as the writ petitioner-appellant had completed 22 years of service and had already attained the age of 50 years and he was not under suspension, hence in view of the settled proposition of law as per Rule 74(b) of the Bihar Service Code prescribing the provision of voluntary retirement by way of three months notice is automatic and the appellant cannot be denied the privilege of voluntary retirement.
4. It is vehemently contended at the bar that a bare reading of Rule 74(b)(i) of the Bihar Service Code makes it apparent that the option for voluntary retirement lies with the employee to initiate the process. The only right given to the Government is, if the officer is under suspension to deny such option for voluntary retirement and it could also do so by express refusal during the notice period and if in the interregnum period of three months, the claim of the employee is not negated, the government servant shall be deemed to have voluntary retired from service. Once the relationship of master and servant ceases, the question of initiating any departmental proceeding against him, therefore, simply does not arise and is a nullity.
5. In order to buttress the aforesaid submission, heavy reliance has been made on orders/judgments passed by the learned Single Judge of this Court in the case of Shah Azad Siddiqui (Dr.) Versus The State of Bihar and others, reported in 2008 (4) PLJR 194, Shah Waliullah Tarique Vs. the State of Bihar and others, reported in 2010 (1) PLJR 371. Further reliance has been made on a judgment passed in the case of Vijay Kumar Vs. The State of Bihar and others and other analogous cases, reported in 2015 (2) PLJR 625, as also the judgment dated 03.07.2018 passed in C.W.J.C. No. 1641 of 2016 [Dr. (Smt) Swarn Lata Sinha Vs. The State of Bihar and Others).
6. On the strength of the aforesaid judgments, he, emphatically, submits that in fact, even the pendency of the departmental proceeding cannot be made a ground of refusal to the prayer of voluntary retirement in view of the provisions made under Rule 74(b)(i) of the Code read with Government Circular No. 6190 dated 27.04.1979 and moreover the order of punishment inflicted upon the writ petitioner-appellant, as contained in Memo No. 915 (9) dated 09.10.2014 for unauthorized absence from 26.12.2005 to 18.05.2010 was quashed by this Court vide order dated 14.03.2018 passed in C.W.J.C. No. 12145 of 2017. Hence, the petitioner would be treated to be in continuous service till 19.05.2010 as also on the date on which the writ petitioner-appellant submitted his VRS. Therefore, in any view of the matter the rejection of the prayer of the writ petitioner-appellant for VRS vide order as contained in Memo No. 624(3) dated 16.08.2018 is illegal and wholly without jurisdiction.
7. On the other hand, learned counsel appearing on behalf of respondent State submits that as the prayer of voluntary retirement as provided under Rule 74(b)(i) of the Code is incumbent upon fulfillment of certain stipulation including, completion of 20 years of service, but as the writ petitioner-appellant, had remained unauthorized absent since 26.12.2005 to 18.05.2010, he has not completed 20 years of service, hence th
AI
A government servant's qualifying service includes periods of unauthorized absence unless a disciplinary proceeding is initiated. The voluntary retirement request must be accepted if not explicitly r....
A government servant has an absolute right to voluntarily retire after completing 30 years of service under Rule 48 of the CCS (Pension) Rules, 1972, provided they are not under suspension, and the e....
Point of law: if the application for voluntary retirement would have been accepted by the appointing authority on the subsequent representation moved by the petitioner, he would have retired from ser....
Voluntary retirement requires explicit acceptance from the appointing authority and cannot be deemed effective solely based on a lack of response.
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