Dismissed

Archana Paliwal v. State of U.P. and 4 Others

Allahabad HC18 Nov 2022SPLA/101/2022

Case brief

AI extract

What is this about?

This special appeal dismissed a challenge to a single judge order accepting a staff nurse's voluntary retirement application. The court held that interpreting the Fundamental Rules, the appointment authority could validly accept a standstill offer for voluntary retirement after the specified date, and continued service did not imply withdrawal.

What the court decided

AI extract

Archana Paliwal Vs State of U.P. and 4… — Pension and Retirement Benefits | Allahabad HC (2022)

AFR

Court No. - 29

Case :- SPECIAL APPEAL No. - 101 of 2022

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Appellant :- Archana Paliwal Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Jai Prakash Prasad Counsel for Respondent :- C.S.C.

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Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.

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Heard Sri Jai Prakash Prasad for the appellant and the learned Standing Counsel for the respondents.

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This intra court appeal is against the judgment and order of the learned Single Judge dated 09.11.2021 passed in Writ A No. 20146 of 2019 whereby the writ petition of the appellant seeking quashment of the order accepting the prayer of the writ petitioner for voluntary retirement from service with effect from 30.06.2018 and a direction upon the opposite party to decide petitioner’s representation for cancellation of the acceptance order, has been dismissed.

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The facts of the case have been succinctly narrated in paragraph 2 of the impugned judgment therefore instead of restating those facts we deem it appropriate to reproduce the said paragraph below:-

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"2. Facts, as have been pleaded in the writ petition, are that petitioner was a staff nurse and was posted in District Bijnor. After the State of Uttarakhand was created, she was permitted to opt for State of Uttar

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Pradesh vide order dated 26.12.2008. The petitioner, consequently, joined on 18.2.2009 at Saharanpur. She submitted an application for voluntary retirement alongwith which she also submitted an affidavit clearly stating that she is no longer desirous of serving the State and her application for voluntary retirement be accepted. The application form annexed alongwith the affidavit made a request to retire the petitioner voluntarily w.e.f. 30.6.2018. No orders apparently were passed on this application and the petitioner was allowed to continue till the month of October. It is by the order impugned that petitioner's voluntary retirement has been accepted w.e.f. 30.6.2018. It is after passing of the impugned order that petitioner who was residing in State of Uttarakhand made a request to recall the order on the ground that she be permitted to serve the employer. "

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Before the learned Single Judge, two grounds were pressed, namely, (a) that an application, under Fundamental Rule 56(c), seeking voluntary retirement would require a minimum three month's notice whereas the application submitted by the writ petitioner on 06.04.2008 sought voluntary retirement from 30.06.2018, which was less than three months, therefore, the same was defective and could not have been acted upon; and (b) that the acceptance order dated 09.05.2019 could not have directed retirement with effect from 30.06.2018.

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The state-respondents contested the petition by claiming that no prayer was made to withdraw the application seeking voluntary retirement before its acceptance therefore, once the application was accepted, there was no occasion for the writ petitioner (the appellant herein) to have a grievance in respect thereof.

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The learned Single Judge upon noticing the provisions of Fundamental Rule 56 (c) and (d) observed that the period of notice provided in Fundamental Rule 56(c) is for the benefit of the appointing authority whereas, by virtue of sub clauses (i) and (ii) of clause (d) of Rule 56 of the Fundamental Rules, the appointing authority is empowered to retire the Government servant on a shorter notice or forthwith and, for the period by which such notice is short, the Government servant is entitled to pay plus allowances at the same rates at which he was drawing immediately before his retirement. Thus, even if the notice period was shorter than three months it did not make it defective. The learned Single Judge also noticed the second proviso to sub-clause (ii) of clause (d) of Rule 56 of the Fundamental Rules which provided that the notice once given by a Government Servant under clause (c) seeking voluntary retirement can not be withdrawn except with the permission of the appointing authority. Having noticed those provisions, the learned Single Judge held that as there existed no dispute with regard to service of retirement notice on the appointing authority and there existed no material to indicate that a prayer to withdraw the notice was made before its acceptance, there was no merit in the writ petition, particularly, when the writ petitioner was not made to refund salary received for the period she worked after 30.06.2018.

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The learned counsel for the appellant has not questioned the contents of the Fundamental Rule 56 (c) and (d) quoted by the learned single Judge though he claimed

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that the learned Single Judge overlooked that the voluntary retirement application dated 06.04.2018 sought retirement with effect from 30.06.2018 and if it was not accepted till 30.06.2018, and the writ petitioner was allowed to work and receive salary thereafter, the same could not have been accepted. In the alternative, it was argued that since the petitioner rendered her services after 30.06.2018, by her conduct, she withdrew her notice/application seeking voluntary retirement and, by accepting work from the petitioner and making payment of salary to her, the appointing authority impliedly granted permission to withdraw the notice and waived its right to act upon the notice.

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To appropriately appreciate the above submission, it would be useful to notice the relevant provisions of UP Fundamental Rule 56. Clause (a) of Rule 56 deals with the age of superannuation of a Government servant; clauses (a-1) and (a-2) deals with extension of service; clause (b) has been omitted; clauses (c) & (d) of Rule 56 are relevant for the case, hence they are being reproduced below:-

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“56 (c) — Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service of twenty years.

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(d) — The period of such notice shall be three months:

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Provided that —

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(i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowance, if any, for the period of the notice or, as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement;

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(ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of the notice:

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Provided further that such notice given by the Government servant against whom a disciplinary proceedings is pending or contemplated shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted;

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Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not withdrawn by him except with the permission of the appointing authority.”

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A plain reading of clause (c) of Rule 56 would reflect that it has two parts. In its first part, it empowers the appointing authority to compulsorily retire a Government servant, whereas, in its second part, it confers a right on the Government servant to seek voluntary retirement subject to certain conditions. As we are dealing with a case where the petitioner (the appellant herein) had sought voluntary retirement, we are concerned with the second part. In respect thereof, the Rule provides that a Government servant may by notice to the appointing authority seek

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voluntary retirement at any time after he/she/it has attained the age of forty five years or completed qualifying service of twenty years. Clause (d) of Rule 56 prescribes the notice period as three months but, by clause (ii) of the Proviso to clause (d) of Rule 56, the appointing authority is empowered to allow a Government servant to retire without any notice or by a shorter notice without requiring him/ she/it to pay any penalty in lieu of notice. Meaning thereby that the appointing authority could allow a Government servant to retire voluntarily even if the notice period is shorter than three months albeit subject to fulfilment of other conditions enabling exercise of the right to seek voluntary retirement. The proviso to clause (ii) of the proviso to clause (d) of Rule 56 throws a hint as to from which date the notice seeking voluntary retirement will be effective by providing that where a disciplinary proceeding is pending or contemplated, the notice shall be effective only if it is accepted by the appointing authority, provided that in a case of contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted. Meaning thereby that where disciplinary proceeding is neither pending nor contemplated, the notice would become effective on expiry of the period provided in Rule 56(d), which is of three months. If the period provided by the notice is less than three months then, by virtue of clause (ii) of the first proviso to clause (d) of Rule 56, the appointing authority may have to pass an order allowing the Government servant to retire within that shorter period.

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In the instant case, admittedly, the notice period was less than three months therefore, the appointing authority was required to accept the request to allow the petitioner to retire. But whether the order of acceptance had to be passed within that period and not later, needs to be determined. Notably, the Rule does not prescribe the time limit for acceptance of the retirement notice. Although, where disciplinary proceedings are pending against the retirement seeker, the notice would become effective only when accepted provided that in the case of contemplated disciplinary proceeding, the notice giver would have to be informed within the period of the notice that it has not been accepted. In this case, it is not shown that any disciplinary proceeding was either pending or contemplated against the writ petitioner. Consequently, the appointing authority was not under an obligation to inform the petitioner about non-acceptance of the notice within the period provided therein. In these circumstances, the issue whether acceptance was required before 30.06.2018 would have to be addressed on the same principles which govern acceptance of an offer, that is, whether there was any indication from the petitioner that the offer to retire was acceptable up to 30.06.2018 and not later. In that context, on perusal of the record, we find that the retirement application/notice is silent in that regard. It only seeks voluntary retirement with effect from 30.06.2018. The affidavit, dated 06.04.2018, filed by the appellant along with the voluntary retirement application/notice spells out an unqualified offer/desire to retire without specifying a

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date by which it should be accepted. There is no indication either in the application or in the affidavit that if the offer is not accepted by a certain period it be treated as withdrawn. Thus, the notice seeking voluntary retirement extended a standing offer to retire with effect from 30.06.2018 which could have been accepted by the appointing authority till such time it was withdrawn with the permission of the appointing authority as per the provisions of the second proviso to clause (ii) of Rule 56 (d) of the Fundamental Rules. As by the second proviso to clause (ii) of Rules 56 (d) of the Fundamental Rule a voluntary retirement notice cannot be withdrawn save with the permission of the appointing authority, there can be no implied withdrawal of the notice by rendering service beyond 30.06.2018 simply for the reason that the notice period was less than three months, hence an acceptance of the offer was required to terminate the employer-employee relationship. Till such time that relationship subsisted, the incumbent was obliged to serve the employer and, therefore, taking such service would not amount to waiver of employer’s right to accept the standing offer. For the reasons above, we are of the considered view that there existed no legal impediment for the appointing authority to accept the voluntary retirement notice after the date from which retirement was sought.

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In view of the discussion above, we do not find any error in the judgment and order of the learned Single Judge. More so, because the learned Single Judge has clarified in its order that any salary for the subsequent

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period, if paid to the petitioner, shall not be recovered/ withdrawn from her and, further, the authority shall ensure that retiral benefits are released to the petitioner by treating her to have superannuated with effect from 30.06.2018.

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Before parting, we may notice that the learned Single Judge in paragraph 14 of the judgment, which remains unrebutted, has found another reason to non-suit the petitioner. The said paragraph is reproduced below:-

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"14. At this stage, learned Standing Counsel points out that petitioner has also filed a subsequent Writ Petition No.63782 of 2019, in which she was permitted to make representation and the same has also been rejected on 26.10.2020. This subsequent order is not under challenge. Once the claim of petitioner for voluntary retirement is found to have been accepted for valid reasons, any subsequent attempt to seek its recall would otherwise not be permissible in law. "

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We are in respectful agreement with the above view and for this reason also, the appellant is not entitled to any relief in this appeal.

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The special appeal is dismissed .

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Order Date :- 18.11.2022 Sunil Kr Tiwari

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Digitally signed by SUNIL KUMAR TIWARI Date: 2022.11.29 15:06:51 IST Reason: Location: High Court of Judicature at Allahabad

Archana Paliwal v. State of U.P. and 4 Others

Case brief

What is this about?

What the court decided

Archana Paliwal v. State of U.P. and 4 Others

Case brief

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What the court decided

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