Allowed

The Manager,St.Augustin'S H.S.Murukumpuz v. State of Kerala

Kerala HC18 Aug 2009WP(C)/15677/2007

Case brief

AI extract

What is this about?

High Court quashed orders recalling voluntary retirement sanctioning because the reason for recall (private debt) was extraneous and beyond the scope of retirement scheme. Court directed appointment approval for petitioner clerk in vacant post.

What did the court decide?

Impugned orders recalling voluntary retirement quashed. Direction to approve petitioner's appointment with consequential benefits.

The Manager,St.Augustin'S H.S.Murukumpuz Vs State of… — Service and Employment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931

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WP(C).No. 15677 of 2007(N)

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------------------------------------

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PETITIONER(S):

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-----------------------

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THE MANAGER, ST.AUGUSTIN'S HIGH SCHOOL, MURIKUMPUZHA, THIRUVANANTHAPURAM.

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BY ADV. MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)

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RESPONDENT(S):

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-------------------------

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT.

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2. THE DEPUTY DIRECTOR, EDUCATION, THIRUVANANTHAPURAM.

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3. DISTRICT EDUCATION OFFICER, THIRUVANANTHAPURAM.

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4. THE HEADMISTRESS,ST.AUGUSTIN'S HIGH SCHOOL, MURIKUMPUZHA.

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5. SRI.NAVEEN CHRISTOPHER, CLERK, ST.AUGUSTIN'S HIGH SCHOOL, MURIKUMPUZHA.

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6. SMT.BEAULA FATHIMA LOPAS,

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(VOLUNTARY RETIREMENT CLERK), `RESMI', MURIKUMPUZHA P.O., THIRUVANANTHAPURAM.

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R1 TO R3 BY GOVT. PLEADER R4 BY ADV. MR.GOPAKUMAR R.THALIYAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, ALONG WITH WPC. NO.17240 OF 2007 THE COURT ON 18/08/2009 DELIVERED THE FOLLOWING:

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W.P.(C) NO.15677/2007

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APPENDIX

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PETITIONER'S EXHIBITS

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P1:- COPY OF THE ORDER NO.B2/8266/01/B.DIS. DTD. 16.8.02.

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P2:- COPY OF THE AGREEMENT DTD. 1.8.74.

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P3:- COPY OF THE ORDER OF 2ND RESPONDENT ACCEPTING THE VOLUNTARY RETIREMENT NO.G2/20699/2006, DTD. 25.12.06.

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P4:- COPY OF THE COVERING LETTER DT. 21.3.07 AND APPOINTMENT ORDER WITH ECNLOSURES.

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P5:- COPY OF THE ORDER NO.G2-206906/DDE DT. 9.4.07.

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P6:- COPY OF THE ORDER NO.G2-20699/06/DDE DTD. 3.5.07 .

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P7:- COPY OF THE MINUTES BOOK DTD. 9.2.07.

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P8:- COPY OF THE SUBMISSION DTD. 22.5.07.

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RESPONDENT'S EXHIBITS

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R4(a):- COPY OF THE APPLICATION DTD. 19.6.06.

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R4(b):- COPY OF THE APPLICATION DTD. 29.6.06.

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R4(c):- COPY OF THE LETTER DTD. 12.1.07.

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R4(d):- COPY OF THE REPLY LETTER ISSUED BY THE 2ND RESPONDENT DTD. 2.2.07.

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R4(e):- COPY OF THE NOTICE ISSUED BY THE BRANCH MANAGER, SBT, PALLIPURAM BRANCH DTD. 22.1.07.

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R4(f):- COPY OF THE LETTER ISSUED BY THE BRANCH MANAGER, MANGALAPURAM BRANCH OF SBT DTD. 13.2.07.

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R4(g):- COPY OF THE LETTER ISSUED BY THE BRANCH MANAGER, SBT, THIRUVANANTHAPURAM DTD. 18.4.07.

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R4(h):- COPY OF THE LETTER ISSUED BY THE BRANCH MANAGER, SBT, PALLIPPURAM BRANCH DTD. 14.2.07.

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R4(i):- COPY OF THE NOTICE ISSUED BY THE BRANCH MANAGER , KSFE, KAZHAKKUTTOM BRANCH DTD. 24.11.06.

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R4(j):- COPY OF THE NOTICE ISSUED BY THE MURUKKUMPUZHA SERVICE COOPERATIVE BANK DTD. 8.2.07.

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W.P.(C) NO.15677/2007

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R4(k):- COPY OF THE ISSUED BY THE 3RD RESPONDENT DTD. 8.3.07. R4(l):- COPY OF THE COVERING LETTER DTD. 1.3.07. R6(a):- COPY OF THE JUDGMENT DTD. 16.8.07 IN WPC. 23013/06. R6(b):- COPY OF THE LETTER DTD. 19.9.07 ADDRESSED TO THE PETITIONER. R6(c):- COPY OF THE LETTER DTD. 19.9.07 ADDRESSED TO THE 2ND RESPONDENT. R6(d):- COPY OF THE LETTER DTD. 19.9.07 ADDRESSED TO THE 3RD RESPONDENT. R4(a):- COPY OF THE JUDGMENT DT. 18.6.07 IN CCC. 812/07.

TRUE COPY

P.S. TO JUDGE

tss

T.R. Ramachandran Nair, J.

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- - - - - - - - - - - - - - - - - - - - - - - -

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W.P.(C) Nos.15677/2007-N & 17240/2007-B

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- - - - -- - - - - - - - - - - - - - - - - - - - -

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Dated this the 18th day of August, 2009.

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JUDGMENT

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These writ petitions are at the instance of the Manager of a school and

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the newly appointed clerk who is seeking approval of appointment. The relevant facts for the disposal of the writ petitions are the following:

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The 6^th respondent in W.P.(C) No.15677/2007 was working as a

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Clerk in the school. She requested for voluntary retirement from service with effect from 1.9.2006. The request was duly forwarded by the Headmistress to the Accountant General. After completing the process and after getting sanction of the Accountant General, by Ext.P3 sanction was accorded by the second respondent after accepting the voluntary retirement. The same came into effect on 1.9.2006. In the said vacancy, the 5^th respondent who is the petitioner in W.P.(C) No.17240/2007 was appointed. Later on, after several months, the second respondent issued Ext.P5 directing not to proceed with Ext.P3. Ext.P6 is the consequential order passed by the second respondent withdrawing the sanction for voluntary retirement. These are under challenge in these writ petitions.

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wpc 15677/07 & 17240/07 2

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The apparent reasons shown in Exts.P5 and P6 are that the Headmaster reported that the 6^th respondent has availed a number of loans from various concerns and she is also a surety to certain other loanees. She is an indebted person and her pensionary benefits are not sufficient to compensate these liabilities.

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Learned counsel for the petitioners submitted that the second respondent has no power to recall the order sanctioning voluntary retirement. The 6^th respondent had not withdrawn her application for voluntary retirement before the sanction was granted. Even if there is a withdrawal, that can be made only before the acceptance of the voluntary retirement. Herein, the said question therefore does not arise. It is further pointed out that merely because the 6^th respondent is indebted to private parties and co-operative societies in respect of certain loans, that cannot be a ground to recall the sanction for voluntary retirement. It is pointed out that the second respondent has acted arbitrarily and illegally in passing such an order. Learned counsel for the 6^th respondent and learned Govt. Pleader were also heard. In the counter affidavit filed by the 6^th respondent, the case pleaded is that she was cheated by the Manager in seeking voluntary retirement. His son is appointed in her place. She has no case that the application seeking voluntary retirement was withdrawn at any time.

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wpc 15677/07 & 17240/07 3

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Her plea can only be an after thought.

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A reading of Ext.P3 shows that when the application for voluntary retirement was given by the 6^th respondent, the proposal was forwarded to the Accountant General for verification and the same was approved. Accordingly, sanction was ordered to effect voluntary retirement from 1.9.2006. This order is dated 26.12.2006. It is pointed out in the writ petition that the 6^th respondent had rendered service beyond 1.9.2006 for a period of two months till the receipt of the order Ext.P3 and the salary claimed for the said period was also refunded.

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Thus, it is a case where the voluntary retirement of the 6^th respondent has become final and had taken effect. Hence, the question of recalling or cancelling the said order does not arise at the hands of the second respondent who had sanctioned voluntary retirement. The reasons stated in Exts.P5 and P6 are that she has several number of loans from various concerns and is a surety to various transactions. The details have been shown in Ext.P6. The creditors are certain service co-operative banks and she has also dues in certain chitty transactions. Significantly, even though she was given an opportunity for hearing, she did not go back on the application for voluntary retirement. Thus, the action by the 2^nd respondent is perfectly without jurisdiction. It is mentioned in Ext.P6 itself

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wpc 15677/07 & 17240/07 4

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that the 6^th respondent submitted that all outstanding balance will be remitted by her from her pensionary benefits which is reiterated in her counter affidavit also. But the second respondent went on to state that the pensionary benefits are not sufficient to clear all the dues and therefore the sanction has to be withdrawn. The said reason is not one germane to the issue. It is beyond the scope of the scheme for grant of voluntary retirement also. Once the voluntary retirement has been sanctioned in terms of the application of the 6^th respondent, there was no reason for the second respondent to recall and cancel the same for a reason like the one pointed out in Exts.P5 and P6. If she is indebted to other private parties and cooperative banks, it is their look out to realise the amount from her. It is not a case where there had been any dues to the Government also. Therefore, the second respondent was not actually concerned with the main question whether the pensionary benefits are sufficient to satisfy the debts. Once voluntary retirement has been accepted and the 6^th respondent retired from service, she could not have been ordered to be reinstated in service based on a report by the Headmaster. It is clear from Exts.P5 and P6 that the 6^th respondent never wanted withdrawal of the application for voluntary retirement also. It is well settled by various decisions of this court and that of the Apex Court that even a withdrawal can be made only before

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wpc 15677/07 & 17240/07 5

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acceptance of the same. Therefore, the impugned orders Exts.P5 and P6 in W.P.(C) No.15677/2007 are quashed.

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Hence, both the writ petitions are allowed. There will be a direction to the District Educational Officer to consider the approval of appointment of the petitioner in W.P.(C) No.17240/2007 in terms of the appointment order. Appropriate orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. Consequential benefits also will be sanctioned to the petitioner therein.

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Learned counsel for the 6^th respondent submitted that she had rejoined duty pursuant to Ext.P6 and therefore she is entitled for grant of salary and other benefits. This is opposed by the learned counsel for the petitioner who submitted that in the light of the interim order, the said contention cannot be accepted. At any rate, the said contention cannot be accepted since she has accepted voluntary retirement from 1.9.2006. Therefore, such a claim cannot be countenanced at all and the plea is rejected.

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The writ petitions are disposed of as above. No costs

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(T.R. Ramachandran Nair, Judge.)

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kav/

The Manager,St.Augustin'S H.S.Murukumpuz v. State of Kerala

Case brief

What is this about?

What did the court decide?

The Manager,St.Augustin'S H.S.Murukumpuz v. State of Kerala

Case brief

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What did the court decide?

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