A retired government servant sought to withdraw his accepted voluntary retirement two weeks after its effective date and sought reinstatement via Rule 88 relaxation. The court held withdrawal was barred by Rule 48-A(4), Rule 88 being discretionary conferred no enforceable right, dismissed the petition against CAT's dismissal of his OA.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJAY KAUSHIK ...Petitioner Through: Mr. Aditya Kaushik, Advocate
versus
UNION OF INDIA & ANR. .....Respondents
Through: Ms. Shagun S. Chugh, SPC with Mr. Utsav Mangotra, Advocate.
% Date of Decision: 10th February, 2025 CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
J U D G E M E N T
TUSHAR RAO GEDELA, J.: (ORAL)
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petitioner was promoted to the Entry Grade of DANICS and was transferred to Andaman & Nicobar Islands by the Ministry of Home Affairs (hereinafter referred to as “ MHA ”), and was relieved in February, 2012. Petitioner claims that due to serious medical condition of his mother, the petitioner remained on leave in Delhi between 16.10.2012 and 03.12.2012. Petitioner also claims that while at Port Blair, he was informed about an immediate and emergent surgery of his mother at Delhi. Pursuant to the said news, the petitioner claims to be depressed and in utter confusion about his next move and requested for voluntary retirement on 12.12.2012 with effect from 13.03.2013. Simultaneously, the petitioner also sought transfer to Delhi so as to ensure that all his post retiral benefits could be easily accessible and availed of in the city of Delhi, of which he was an ordinary resident. On 08.03.2013, the petitioner also submitted an undertaking and an affidavit reiterating his request for voluntary retirement to be effective from 18.03.2013 as a condition precedent for his transfer to Delhi. On 11.03.2013, the petitioner was transferred to Delhi and after acceptance of his resignation by the Competent Authority, the voluntary retirement was made effective from 18.03.2013.
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preferred a writ petition bearing W.P.(C) No.6040/2019 which was disposed of by the order dated 28.05.2019 by this Court directing respondent no.1 to consider the petitioner’s case for grant of relaxation under Rule 88 of the CCS (Pension) Rules, 1972 (for short Pension Rules ) on its own merits. In pursuance thereof, the petitioner submitted a representation dated 10.06.2019 which too was rejected by respondent no.1 on 31.07.2019. Though the petitioner had preferred an application against the said order dated 31.07.2019 in WP(C) No.6040/2019, this Court had directed the petitioner to agitate the same before the learned CAT as it would constitute a new cause of action. Following the said directions, the petitioner preferred OA No.2947/2019 before the learned CAT, Principal Bench, New Delhi assailing the order dated 31.07.2019 passed by respondent no.1.
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representation of the petitioner on such frivolous grounds would not have arisen.
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for the petitioner and has invited attention of this Court to Rule 48-A of the Pension Rules. In particular, she draws attention of this Court to sub-rule (4) of Rule 48-A to submit that once the government servant elects to retire under this rule, he would be precluded from withdrawing the said notice except with the specific approval of such authority, provided that the request for withdrawal should have been made before the intended date of his retirement. She forcefully contends that once the voluntary retirement has been accepted by the Competent Authority to be effective from a particular date, an employee could have possibly withdrawn the said voluntary retirement before the effective date of retirement. This situation could have been considered by the Competent Authority and the permission could have been granted subject to the aforesaid condition. She states that in the present case, not only did the Competent Authority accept the application seeking voluntary retirement but also confirmed that the same would be effective from 18.03.2013. She states that the application seeking withdrawal of voluntary retirement was submitted by the petitioner on 01.04.2013. This, according to learned counsel, was beyond the date before which the Competent Authority could have exercised its powers under sub rule (4) of Rule 48-A of the Pension Rules. She states that the petitioner thus cannot take shelter of Rule 88 of the Pension Rules to seek relaxation of sub rule (4) of Rule 48-A of the Pension Rules. Learned counsel for the respondents submits that the present petition be dismissed with costs.
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Gurdarshan Kaur Sandhu reported in (2019) 17 SCC 129 . The relevant
paragraph is extracted hereunder:
12. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paras 41 and 50 in Gopal Chandra Misra [Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303] , “in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post” or “in the absence of a legal contractual or constitutional bar, a ‘prospective resignation’ can be withdrawn at any time before it becomes effective”. Further,...............”
(Emphasis Supplied) However, in the facts of the present case, the petitioner had admittedly filed his notice seeking withdrawal of his voluntary retirement on 01.04.2013 while he retired on 18.03.2013. It is pertinent to note that the jural relationship of master and servant terminated on 18.03.2013 and no relationship existed between the parties.
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“48-A. Retirement on completion of 20 years’ qualifying service
(1) At any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is –
(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes.
(ii) posted abroad in foreign based offices of the Ministries/Departments,
(iii) on a specific contract assignement to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
(2) The notice of voluntary retirement given under sub-rule(1) shall require acceptance by the Appointing Authority;
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.
(3) Deleted.
(3-A) (a) A Government servant referred to in sub-rule(1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reasons therefor;
(b) On receipt of a request under Clause (a), the Appointing Authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the Appointing Authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:
Provided that the request for withdrawal shall be made before the intended date of his retirement.
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(5) Omitted.
(6) This rule shall not apply to a Government servant who-
(a) retires under the Special Voluntary Retirement Scheme relating to voluntary retirement of surplus employees, or
(b) retires from Government service for being absorbed permanently in an Autonomous Body or a Public Sector Undertaking to which he is on deputation at the time of seeking voluntary retirement.
EXPLANATION. – For the purpose of this rule, the expression “Appointing Authority” shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement.”
(Emphasis Supplied)
“88. Power to relax -
Where any Ministry or Department of the Government is satisfied that the operations of any of these rules, causes undue hardship in any particular case, the Ministry or Department, as the case may be, may, by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner:
Provided that no such order shall be made except with the concurrence of the Department of Personnel and Administrative Reforms.”
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approval of such authority, provided that the request for withdrawal shall be made before the intended date of his retirement. Notwithstanding the ratio of Gurdarshan Kaur Sandhu (Supra) the language employed in sub rule (4) and its proviso is simple and clear and brooks no ambiguity. It is trite that the proviso is to be read as carving out an exception to the main statute and has to be read as such. In other words, the petitioner could have submitted a notice for withdrawal of his application for voluntary retirement anytime before 18.03.2013, when the acceptance of his voluntary retirement became effective. The petitioner had retired from government service on 18.03.2013, thus the question of him being reinstated in service does not arise at all. 15. That said, we would examine the effect and impact of Rule 88 of the Pension Rules. Plainly, the provisions of Rule 88 leave no manner of doubt that the same is in the nature of a residuary power of the Competent Authority to relax the operation of any of the Pension Rules, if they cause undue hardship in a particular case. It is also manifest that the power vested is absolutely discretionary and not mandatory. The Competent Authority has been given enough room for movement to exercise administrative power in the interests of the administration and to meet exigencies. Assuming the authorities have indeed exercised such power in some cases, that by itself would not confer any right upon the petitioner to seek similar treatment. Clearly, Rule 88 does not envisage any equal rights to the government servants and has to be applied on a case to case basis. The petitioner can neither allege discrimination nor can seek parity on that basis at all. Moreover, having due regard to the facts of the present case and the proper exercise of Rule 48-A by the Competent Authority,
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we do not consider it appropriate to direct the respondent to re-examine the case of the petitioner in the light of Rule 88 of the Pension Rules.
TUSHAR RAO GEDELA, J
DEVENDRA KUMAR UPADHYAYA, CJ
FEBRUARY 10, 2025/ rl
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2 issues framed by the court
Whether withdrawal of voluntary retirement is permissible after the retirement date has become effective under Rule 48-A(4) of the Pension Rules.
Whether Rule 88 relaxation power should be directed to be exercised in favour of reinstatement despite post-retirement withdrawal.
Colour shows how this judgement treated each authority
Air India Express Ltd. v. Gurdarshan Kaur SandhuRelied on¶11
(2019) 17 SCC 129 · Who else cites this
2 provisions across 1 enactments
Sanjay Kaushik
Union of India
Respondent No. 2
Devendra Kumar Upadhyaya
Tushar Rao Gedela
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
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