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 service on the date of acceptance of the notice and not on the date of expiry of the notice period itself. What would be the position or status of the petitioner as a government servant during the period from the date of expiry of the notice to the period upto the date of acceptance of the voluntary retirement notice by the appointing authority?

Headnote:
U.P. Fundamental Rules – Rules 56 – Voluntary retire from service – By means of the present writ petition, the petitioner seeks to challenge the order whereby the Sub Divisional Officer, Goverdhan Mathura had refused to accept the notice given by him expressing his desire to voluntary retire from service – Representation moved by the petitioner seeking compliance of the order in Writ Petition has, thus, been rejected.
Finding of the court: 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 service on the date of acceptance of the notice and not on the date of expiry of the notice period itself. – What would be the position or status of the petitioner as a government servant during the period from the date of expiry of the notice to the period upto the date of acceptance of the voluntary retirement notice by the appointing authority? – Petitioner either continues in service till the date of decision or does not continue in service on expiry of three months period. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a government servant would continue in service till the voluntary retirement notice is accepted. – The argument that the petitioner stood retired on the expiry of three months period is self-defeating. – Petitioner himself had filed a writ petition in the month of March' 2020 seeking a direction to the appointing authority to take a decision on his application for voluntary retirement. – The said writ petition was disposed of with the direction to consider the application of the petitioner. – The petitioner gave representation to the appointing authority to comply the order of this Court to take a decision. – He, thus, treated himself to be in service till a decision was taken on his notice. – It is clear that the petitioner was suspended while in service. – One of the charges in the charge sheet is that he remained absent from duty unauthorizedly – On the date of the decision on the notice for voluntary retirement, the disciplinary enquiry was pending against the petitioner. – The appointing authority in its own wisdom had refused to accept the notice. – In case of contemplated or pending enquiry, the notice is effective only if it is accepted by the appointing authority, as per the second proviso, sub-rule (d) of the Fundamental Rule 56. – The decision of the appointing authority in refusing to allow the petitioner to retire voluntary being in accordance with the second proviso to Rule 56 (d) of the Fundamental Rules, cannot be said to suffer from any illegality.
Result: – Writ Petition Dismissed

JUDGMENT

1. Heard learned counsel for the parties and perused the records.

2. By means of the present writ petition, the petitioner seeks to challenge the order dated 04.08.2020 whereby the Sub Divisional Officer, Goverdhan Mathura had refused to accept the notice dated 26.08.2019 given by him expressing his desire to voluntary retire from service. The representation dated 07.05.2020 moved by the petitioner seeking compliance of the order dated 05.03.2020 in Writ Petition No.3584 of 2020 has, thus, been rejected.

3. The petitioner gave a notice dated 26.08.2019, seeking to retire voluntarily from service. The reasons given therein was that the petitioner's wife had died much earlier and he needed to retire to discharge his family responsibility. It was also stated that the petitioner had completed 20 years of qualifying service and was aged above 45 years. As per the Fundamental Rules 56 (c) of the U.P. Fundamental Rules in Financial Hand Book (Vol. II, Part II to IV), (in short as the Fundamental Rules) his notice may be accepted and he be allowed to voluntarily retire.

4. When no decision was taken, a Writ Petition No. 3584 of 2020 was filed by the petitioner stating therein that during pendency of the application for voluntary retirement, the petitioner had been placed under suspension but no decision had been taken on his request to retire voluntarily. The said writ petition was disposed of with the direction to the competent authority to consider and take a decision in accordance with law. It was, however, clarified that the Court had not gone into the merits as to whether the request for voluntary retirement can be considered during the pendency of suspension or not and the said question shall be decided by the competent authority independently and in accordance with law.

5. It may further be noted that a show cause notice dated 27.11.2019 was served on the petitioner calling him to submit his explanation for remaining absent from duty from 10.10.2019 and dereliction in discharge of his official duties. The said notice was received by the petitioner on 02.12.2019 and 15 days time was sought to submit his written explanation. By an order dated 13.12.2019, the petitioner was placed under suspension. He, thereafter, approached this Court in the aforementioned writ petition seeking direction to the respondent to take a decision on the notice to voluntary retire. It may also be noted that a charge sheet dated 03.04.2020 has been served upon the petitioner and the disciplinary enquiry is going on.

6. It is vehemently contended by learned counsel for the petitioner that on the expiry of three months from the date of notice the petitioner stood automatically retire. The period of three months had expired on 26.11.2019, no disciplinary enquiry was either contemplated or pending against the petitioner on the date of the notice of voluntary retirement or during the said period. The disciplinary enquiry initiated against the petitioner after he had retired from service, thus, suffers from manifest error of law. It is vehemently contended that once a government servant gave a notice to the appointing authority expressing his desire to voluntary retire, on expiry of three months period of notice, if no decision is communicated to him, the retirement from service is automatic under Fundamental Rules 56 (c) & (d). Subsequent suspension order or disciplinary enquiry cannot be taken as a ground for refusal to accept the notice. In any case, the decision of the appointing authority to place the petitioner under suspension and subsequent initiation of enquiry is malafide, in as much as, the said action was taken only to deny permission for voluntary retirement to the petitioner.

7. The order impugned further cannot be sustained as entire service record of the petitioner was appreciated by the appointing authority while taking decision on the notice for voluntary retirement, which is impermissible. Second proviso to Rule 56 (d) of the Fundame