Dismissed

Dindayal Sangole S/o. Ramgopal Sangole v. Union of India and Ors.

Bombay HC17 Oct 2012WP/1552/2012

Case brief

AI extract

What is this about?

Petitioner challenged the rejection of voluntary retirement application arguing the authority failed to decide and communicate before the specified expiry date. The Court held the rule only requires the decision before expiry, not communication, thus dismissing the writ petition.

What did the court decide?

Petitioner's writ petition was dismissed as devoid of merits.

Dindayal Sangole S/o. Ramgopal Sangole Vs… — Pension and Retirement Benefits | Bombay HC (2012)

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SQP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1552 OF 2012

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Dindayal Sangole (D.D.Sangole) son of Ramgopal Sangole ...Petitioner Versus UOI, through Director General, Coast Guard Headquarters & Ors. ...Respondents

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Mr.S.A.Deshpande for Petitioner

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Mr.Y.S.Bhate a/w Mr.M.S.Bhardwaj for Respondents

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CORAM:- A.M.KHANWILKAR AND

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R.Y.GANOO, JJ. DATED:- OCTOBER 17, 2012.

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P.C.

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Heard Counsel for the parties.

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This petition takes exception to the order passed by the Appropriate

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Authority dated 8^th June, 2012 rejecting the petitioner's application for voluntary retirement. The challenge to that decision is essentially on the ground that the Appropriate Authority failed to decide the issue regarding

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voluntary retirement of the petitioner before 1^st June, 2012 which was the effective date mentioned in the application for voluntary retirement made

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by the petitioner. The decision, however, appears to have been taken on 8^th June, 2012, as is evident from the communication Exhibit `I' , which is impugned in this petition. That is contrary to the proviso to Rule 48-A of the Central Civil Services (Pension) Rules, 1972. The respondents have countered this contention by filing reply affidavit. Along with the reply affidavit, the respondents have produced communication dated 29^th May, 2012, contents whereof are similar to the communication impugned in the present petition dated 8^th June, 2012. By the said communication, the Commandant Joint Director (EP) for Director General informed the Officer In-charge, Bureau of Naviks, Mumbai about the decision of the Appropriate Authority in not approving the voluntary retirement proposal of the petitioner. The communication on which the petitioner is relying is, however, issued under the signature of Commandant (JG), Staff Officer (Admin) for Officer-in-charge which is addressed to the Commandant Officer/Officer-in-Charges. The basic document is dated 29^th May, 2012 on the basis of which the Commandant (JG) has informed the concerned Commandant Officer/Officer-in-charges. Thus understood, the decision taken by the Appropriate Authority precedes the date of expiry of the period referred to in the application submitted by the petitioner. In that

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view of the matter, the argument under consideration will have to be stated to be rejected.

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To get over this position, Counsel for the petitioner contends that assuming that the decision has been taken by the Appropriate Authority within the period specified under the proviso but that decision will be of no avail, as it has not been communicated to the petitioner before the expiry of the date specified in the application for voluntary retirement submitted by the petitioner. The petitioner has been communicated the letter sent under the signature of Commandant (JG) dated 8^th June, 2012 which is after the expiry date and for that reason, the decision is vitiated. For considering this submission, we may have to straight away turn to the proviso to Rule

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48-A(2). The same reads thus:

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“Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.”

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On plain reading of this proviso, the obligation is only of deciding the

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proposal for voluntary retirement before the specified period and if the Appointing Authority fails to refuse to grant the permission before the said

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period, the retirement request of the incumbent would become effective from the date of expiry of the period mentioned in the request for voluntary retirement. There is no obligation specified by the proviso to communicate the decision so taken within the same time to the incumbent.

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Counsel for the petitioner, however, has placed reliance on the decision of this Court which has considered Rule 66 of the Maharashtra Civil Services (Pension) Rules, 1982 (`MCSPR'). The proviso to sub-rule (2) of Rule 66 of the said Rules is parimateria to proviso to sub-rule (2) of Rule 48-A. However, on going through the decision in the case of Nilkanth Ramji Akarte vs. State of Maharashtra¹ , it is noticed that the purport and the sweep of proviso has not been considered in that decision. As aforesaid, the proviso to Rule 48-A referred to above does not obligate the Appropriate Authority to communicate its decision before the specified date. This decision, therefore, cannot be pressed into service as an authority on the proposition that the Appropriate Authority is obliged to communicate the refusal to grant the permission for retirement within the specified time to the incumbent. The Counsel for the petitioner also relied

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1 2007(2) Bom.C.R.479

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on the decision of the Apex Court in the case of Union of India vs. S.P.Singh² . The observations in this decision, however, are in the context of non-communication of suspension order within the specified time dealt with by Rule 48 of the Central Civil Services (Pension Rules). Similar view has been taken in another decision of the Apex Court pressed into service in the case of State of U.P. & Ors. vs. Laxmikant Shukla³ . In this decision, the Court was dealing with FR 56, which expressly provides that the decision of the Appropriate Authority must be informed to the Government Servant before the expiry of his notice. That is not the requirement under proviso to sub-rule (2) of Rule 48-A of the Central Civil Services (Pension Rules). Reliance was also placed on unreported order of the Madras High Court in the case of Commandant (JG) Arindam Bose vs. The Secretary to Government, Ministry of Defence, Government of India, New Delhi in Writ Petition No.26305 of 2008 decided on 16^th December, 2009. In the first place, the order appears to be a consent order. Further, there is no discussion in the order about the purport of proviso with which we are concerned and more particularly, specific plea taken by

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