A notice for voluntary retirement must comply with statutory notice periods to be effective; the doctrine of automatic retirement does not apply to an officer in a state of unauthorized absence, particularly when the retirement notice is conditional and fails to satisfy mandatory prerequisites.

ORDER

Hon’ble Mr. Rajinder Kashyap, Member (A):-

The learned counsels appearing for both sides submit that the issues involved in the captioned Original Applications are identical in nature and arise from the similar set of facts and circumstances. In view of the said submission, and with the consent of the learned counsels for the parties, it is considered appropriate to hear and dispose of both matters together in order to avoid multiplicity of proceedings and the possibility of conflicting decisions. Accordingly, both the captioned Original Applications are being adjudicated by this common order. For the sake of convenience and ease of reference, O.A. No. 490/2016 has been treated as the lead case, and the facts narrated therein are being referred to while deciding both matters.

By way of the present O.A.(s) filed u/s 19 of the A.T. Act, 1985 , the applicants, in para 8 of the O.A., have prayed for the following reliefs:-

“(i) Quash and set aside the Order No. 11019/05/2013-AIS-III dated 27th/28th August 2015, passed by the Respondent No. 1 under Rule 7 (2) (c) of the All India Service (Leave) Rules, 1955, whereby the Applicant herein has been deemed to have resigned from service with effect from 01st June, 2006

(ii) In the alternate to (ii) to grant the Applicant Voluntary Retirement from service with immediate effect and with full pensionary benefits;

(iii) Grant costs of this OA to the application herein, and

(iv) Pass such order/orders as may be deemed fit and proper in the interest of justice.”

FACTS OF THE CASE AS STATED BY THE APPLICANT in OA 490/2016

The applicant is an Indian Administrative Service (IAS) officer of the 1980 batch, Uttar Pradesh cadre, who turned 50 years of age in October 2007. In January 2001, with the approval of Respondent No. 1 (DoP&T), he proceeded on foreign deputation to the South Centre, Geneva, for a UNDP project assisting developing countries in WTO negotiations. On 03.09.2004, his deputation was extended up to 31.05.2006. Thereafter, by letter dated 21.03.2007, Respondent No. 2 informed him that his request dated 25.04.2006 for a further two-year extension had been rejected by Respondent No. 1 and directed him to return forthwith, failing which major penalty proceedings would be initiated. On 08.05.2007, however, Respondent No. 2 again recommended to Respondent No. 1 that the applicant be granted cadre clearance for two more years (01.06.2006–31.05.2008). By letter dated 08.07.2008, he was directed to report back within a month. The applicant rejoined on 01.09.2008, when he was placed on compulsory wait. As no posting was given and he was engaged in writing a book on the impact of WTO decisions on Indian agriculture, he sought study leave till the end of 2009.

On 15.09.2010, in response to Respondent No. 2’s letter dated 10.08.2008 directing him to report back within 15 days, the applicant requested permission to resume duties by December 2010. In the alternative, he sought permission to take voluntary retirement under Rule 16(2) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, if additional time could not be granted. Respondent No. 2 failed to act on the applicant’s request within 90 days. Accordingly, in view of the settled legal position, subsequently accorded statutory recognition by insertion of Rule 16(2C) through the 2017 amendment, the applicant’s voluntary retirement took effect automatically on the expiry of the 90-day notice period, i.e., on 15.12.2010, in the absence of any communication rejecting his request.

Despite the applicant’s specific request for voluntary retirement, Respondent No. 2, by letter dated 18.10.2010, issued a show-cause notice under Rule 3(1) and (2) of the All India Services (Discipline and Appeal) Rules, 1969, and simultaneously served a charge sheet. Unaware that no formal acceptance was required and that the employer-employee relationship terminated automatically if no rejection was communicated within the 90-day notice period (