Orissa High Court
Bhupendra Kumar Mohanty vs State Of Odisha on 6 January, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.31236 of 2023
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Bhupendra Kumar Mohanty
Aged about 52 years
Son of Jaganmohan Mohanty
Resident at Quarter No. 304
Asiana Apartment
Shivashakti Nagar
Berhampur, Ganjam. … Petitioner.
-VERSUS-
1. State of Odisha
Represented through
The Additional Secretary
Department of MSME Odisha
Bhubaneswar
District: Khordha.
2. Directorate of
Export Promotion and Marketing
Represented through
Director
Office of Directorate of Export Promotion
and Marketing, 1st Floor Raptani Bhawan
BDA Commercial Complex
Near Indradhanu Market
Nayapalli, Bhubaneswar.
District: Khordha … Opposite parties.
W.P.(C) No.31236 of 2023 Page 1 of 107
Counsel appeared for the parties:
For the Petitioner : M/s. Sambit Rath, S.K. Rout,
B.K. Mishra, M.K. Das,
AdvocatesFor the Opposite parties : Mr. Shantanu Das,
Additional Standing CounselP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 20.12.2024 :: Date of Judgment : 06.01.2025
J UDGMENT
MURAHARI SRI RAMAN, J.–
Assailed here in this writ petition the Office Order
No.4215– II EMET-15/2023, dated 16.09.2023 of the
Director of the Directorate of Export Promotion and
Marketing, whereby the petitioner has been allowed to
retire from Government service voluntarily with effect
from 30.09.2023 (Annexure-6), purported to have been
passed in pursuance of Office Order No.5825–
MSME-FE-FE-0026-2015/MS&ME, dated 11.08.2023
(Annexure-6A) under the provisions of Rule 42 of the
Odisha Civil Services (Pension) Rules, 1992.
1.1. Challenge has also been made to rejection of
Grievance Petition dated 18.09.2023 in connection
with withdrawal of voluntary retirement notice vide
W.P.(C) No.31236 of 2023 Page 2 of 107
Letter No.6957– MSME-FE-FE-0026-2015/MSME,
dated 29.09.2023 (Annexure-6A).
1.2. Craving to allow him to be reinstated in the
Government service and continue till he attains the
age of superannuation, the petitioner has made the
following prayers:
“It is, therefore, prayed that this Hon‟ble Court may
graciously be pleased to admit this writ petition and
issue rule nisi calling upon the opposite parties to show
cause and if they fail to show cause or show
insufficient cause, then issue appropriate writ(s),
order(s), direction(s) directing the opposite parties:
A) To quash the impugned Order dated 16.09.2023,
at Annexure-6 which states that vide Order dated
11.08.2023 the petitioner‟s request for voluntary
retirement has been accepted;
B) To quash the Order dated 29.09.2023 and
11.08.2023 at Annexure-6A Series:
C) Further, direct to allow the petitioner to continue in
the service till he attains the age of retirement;
And may pass any other/further order(s), as this
Hon‟ble Court may deem fit in the interest of justice and
equity.
And for this act of kindness, the petitioner as in duty
bound shall ever pray.”
Facts as narrated in the writ petition:
W.P.(C) No.31236 of 2023 Page 3 of 107
2. The facts as adumbrated by the writ petitioner deserve
to be referred to for the purpose of deciding the issues
raised in the writ petition.
2.1. The petitioner, having joined as a Laboratory Assistant
under the opposite party No.2-Directorate of Export
Promotion and Marketing (“DEPM”, for brevity) by
Order dated 10.10.1991, was promoted to the post of
Scientific Assistant on 05.05.2005 and subsequently
he was promoted to the post of Assistant Director
(Inspection) vide Order dated 22.10.2020.
2.2. Having completed around 31 years of service, citing
that he has been working as Senior Scientific Officer
(in-Charge) in the Testing Laboratory at Balasore with
effect from 29.10.2020, he was placed to discharge
duties as Senior Scientific Officer (in-Charge) of
Testing Laboratory, Berhampur for four days in a week
with effect from 16.06.2023 by DEPM Office Order
dated 12.06.2023 and in-Charge of Testing Laboratory
at Balasore for two days in a week, the petitioner made
application for voluntary retirement vide Letter dated
03.07.2023 addressing to the Principal Secretary of
the Micro, Small and Medium Enterprise Department,
(“MSME”, for short) through opposite party No.2
specifying his willingness for voluntarily retire from
service with effect from 31.10.2023 (afternoon);
W.P.(C) No.31236 of 2023 Page 4 of 107
however, without indicating curtailment of such notice
period.
2.3. While matter was thus, he made an application for
withdrawal of his application seeking voluntary
retirement with effect from 31.10.2023 by an
application dated 16.09.2023, sent via e-mail to the
DEPM at [email protected] at 04.59 p.m. and
the opposite party No.1-MSME Department at secy-
[email protected] at 05.05 p.m. and also sent the said
document by way of speed post, citing reason that
sanction of Modified Assured Career Progression has
been under consideration by the Government and to
cause enquiry on irregularities which were pointed. On
receiving the application for withdrawal of voluntary
retirement, the Senior Scientific Officer (in-Charge)
forwarded the same to the Director, DEPM-opposite
party No.2 by Letter No.411-VTLBE-02/2020/TLB,
dated 16.09.2023.
2.4. Even though said application for withdrawal of
voluntary retirement was communicated to all
concerned including the Appointing Authority, the
opposite party No.2 at 12.10 p.m. on 18.09.2023 by
way of e-mail communicated that the petitioner has
been allowed to retire with effect from 30.09.2023. The
text of the Office Order is reproduced:
W.P.(C) No.31236 of 2023 Page 5 of 107
“Directorate of Export Promotion and Marketing :
1st Floor : Raptani Bhawan : BDA Commercial Complex :
Near Indradhanu Market : Nayapalli : Bhubaneswar-15
Tel. No.0674-2552675 Fax No.2555268, e-mail:[email protected]
***Office Order
No. 4215– IIEMET-15/2023/EPM, dated 16.09.2023In pursuance of the Office Order No.5825/MSME, dated
11.08.2023 of MSME Department, Government of
Odisha, Bhubaneswar, Shri Bhupendra Kumar
Mohanty, Assistant Director (Inspection), Directorate of
Export Promotion and Marketing, Odisha, Bhubaneswar
has been allowed to retire from Government service
voluntarily with effect from 30.09.2023 (afternoon) on
personal ground in pursuance of Rule 42 of the Odisha
Civil Services (Pension) Rules, 1992.
Sri Abhimanyu Majhi, Joint Director (Inspection) will
remain in-Charge of Senior Scientific Officer, Testing
Laboratory, Balasore and Sri Chandan Kumar Mati,
Assistant Director (Inspection) will remain in-Charge of
Senior Scientific Officer, Testing Laboratory,
Berhampur, with effect from 01.10.2023 in addition to
their own duties until further orders.
Sd/- 13.09.2023
Director
***
Memo No.4218/EPM, dated 16.09.2023
Copy forwarded to Sri Bhupendra Kumar Mohanty,
Assistant Director (Inspection) of Directorate of EP&M,
Odissa, Bhubaneswar for information and necessary
W.P.(C) No.31236 of 2023 Page 6 of 107
action. He is informed to submit his pension papers in
the prescribed form along with other relevant
documents to this Directorate for availing his retirement
dues as applicable.
Sd/- 13.09.2023
Director”
2.5. Aggrieved by such Order dated 16.09.2023 accepting
the resignation of the petitioner after receipt of
application on 16.09.2023 for withdrawal of
application for resignation from service intending
voluntary retirement with effect from 31.10.2023, the
petitioner approached the MSME Department with
Grievance Petition dated 18.09.2023 which came to be
rejected on 29.09.2023 and the same was
communicated by Letter No.6957– MSME-FE-FE-
0026-2015/MSME, dated 29.09.2023 enclosing
therewith copy of the following Office Order dated
11.08.2023, which had never been communicated to
the petitioner before:
“Government of Odisha
MS&ME Department
Office Order
No.5825–MSME-FE-FE-0026-2015/MS&ME,
Bhubaneswar, dated 11.08.2023After careful consideration of the voluntary retirement
notice of Sri Bhupendra Kumar Mohanty, Assistant
Director (Inspection), Directorate of Export Promotion
and Marketing, Odisha, Bhubaneswar, Government
W.P.(C) No.31236 of 2023 Page 7 of 107
have been pleased to allow him to retire from
Government service voluntarily with effect from
30.09.2023 (afternoon) on personal ground in
pursuance of Rule 42 of Odisha Civil Services (Pension)
Rules, 1992.
Consequent upon his voluntary retirement, he will be
entitled to all retirement benefits as per provisions
contained under Odisha Civil Services (Pension) Rules,
1992.
By Order of the Governor
Sd/-
(S.C. Mandal)
Additional Secretary
to Government.
Memo No.5826/MSME, dated 11.08.2023
Copy forwarded to Sri Bhupendra Kumar Mohanty,
Assistant Director (Inspection), Directorate of Export
Promotion and Marketing, Odisha, Bhubaneswar for
information and necessary action.
Sd/-
Additional Secretary
to Government.”
2.6. Seeking indulgence of this Court by quashing the
Office Order dated 11.08.2023 as communicated along
with Order dated 29.09.2023 of the MSME
Department rejecting the grievance petition in
connection with withdrawal of voluntary retirement
(Annexure-6A series) and Office Order dated
W.P.(C) No.31236 of 2023 Page 8 of 107
16.09.2023 of the Director, DEPM (Annexure-6), the
petitioner has knocked the doors of this Court
invoking extraordinary jurisdiction under Article
226/227 of the Constitution of India.
Counter affidavit of the opposite party No.1:
3. The opposite party No.1 having chosen not to file
response independently to the contents and the
averments of the writ petitioner, merely sought to
adopt the counter affidavit filed by the opposite party
No.2.
Counter affidavit of the opposite party No.2:
4. Answering the contention of the petitioner that before
lapse of date of effect given in the notice for voluntary
retirement, i.e., 31.10.2023, the resignation could not
have been accepted, it is affirmed that Rule 42 of the
Odisha Civil Services (Pension) Rules, 1992 (“Pension
Rules”, for convenience) does not restrict or restrain
the appropriate authority of the Government from
allowing voluntary retirement before expiry of three
months from the date of application/notice. The Rule
mandates the employee to give a notice of at least
three months in their application for voluntary
retirement.
W.P.(C) No.31236 of 2023 Page 9 of 107
4.1. Refuting the averment of the petitioner that prior to
acceptance of resignation vide Office Order dated
16.09.2023, withdrawal notice was sent via e-mail on
the same day, it is asserted by the opposite party No.2
that after the order being passed to hand over the
charges of Testing Laboratory, the petitioner submitted
his representation for withdrawal of his application for
voluntary retirement.
4.2. The voluntary retirement of the petitioner was
accepted by Government in MSME Department and
intimated to the Directorate of EPM on 11.08.2023,
i.e., before receipt of his representation for withdrawal
of application for voluntary retirement. Further, on
16.09.2023 an order was issued by Directorate to
hand over the charges of the Testing Laboratory of
Balasore and Berhampur to the Officers of the
Directorate. Though the petitioner was well aware of
acceptance of the application for voluntary retirement
by the Government in MSME Department he has
falsely averred that he was intimated for the first time
regarding acceptance of such application for voluntary
retirement on 16.09.2023.
4.3. After submission of the application for voluntary
retirement the appointing authority, i.e., Government
in MSME Department, has rightly accepted theW.P.(C) No.31236 of 2023 Page 10 of 107
application with effect from 30.09.2023. After
submission of the application for voluntary retirement
the applicant cannot claim the date of acceptance of
the application for voluntary retirement. The petitioner
has avoided to receive the Government order regarding
acceptance of the application for voluntary retirement
though he was well aware of its acceptance by the
Government in MSME Department and Director has
personally instructed him to submit his pension
papers and receive the Government orders on
19.08.2023.
Rejoinder affidavit of the petitioner:
5. Refuting the assertions of the opposite parties, the
petitioner has filed rejoinder affidavit by denying the
fact that no proof has been furnished to demonstrate
that they had discussed about the acceptance of
voluntary retirement with the petitioner. It is on record
to suggest that the Director of EPM had accepted the
application for voluntary retirement only on
16.09.2023, which was communicated to the
petitioner on 18.09.2023. Therefore, it is suggested
that the affirmation of the opposite party No.2 that a
copy of Order dated 11.08.2023 accepting voluntary
retirement was being asked to the petitioner for
acknowledging receipt is far from truth.
W.P.(C) No.31236 of 2023 Page 11 of 107
5.1. Whereas the petitioner has specified that the
retirement would take effect from 31.10.2023, the
opposite parties are not vested with power to curtail
such notice period. It is only after completion of 20
years of service the petitioner submitted the
application for voluntary retirement on 03.07.2023 by
specifying the effective date on 31.10.2023. Therefore,
it is asserted by the petitioner that the opposite parties
were not justified in curtailing said period unilaterally
and curtailing the date of retirement cannot be treated
as voluntary retirement. In the scheme of voluntary
retirement, it is the employee who has the right to
seek for curtailment of notice period of three months.
Hearing:
6. Since pleadings are completed and exchanged between
the counsel for the respective parties, on consent this
matter is taken up for final disposal at the stage of
admission.
6.1. Heard Sri Sambit Rath, learned Advocate for the
petitioner and Sri Shantanu Das, learned Additional
Standing Counsel for the opposite parties.
6.2. Hearing being concluded, the matter was reserved for
preparation and pronouncement of judgment.
Rival contentions and submissions:
W.P.(C) No.31236 of 2023 Page 12 of 107
7. Sri Sambit Rath, learned Advocate appearing for the
petitioner submitted that the provisions of Rule 42 of
the Pension Rules does not vest power on the opposite
parties to curtail the period of notice as specified by
the employee. Had the Order dated 11.08.2023 by
virtue of which MSME Department is stated to have
accepted the application for voluntary retirement was
existing on the date of withdrawal of application by the
petitioner on 16.09.2023, such fact could have been
communicated to him by way of recognized mode of
service. Therefore, it is pleaded that such Order dated
11.08.2023 cannot be said to be an effective order
having force.
7.1. Sri Sambit Rath, learned Advocate has placed reliance
on K.L.E. Society Vrs. Dr. R.R. Patil, (2002) 5 SCC 278;
AIR India Express Limited Vrs. Captain Gurdashan
Kaur Sandhu, (2019) 17 SCC 129; M.S.P. Dora Vrs.
Odisha State Road Transport Corporation, 2006 (I) OLR
240 to buttress his argument that application for
voluntary retirement could not have been accepted
before lapse of three months‟ notice period as
envisaged under Rule 42 of the Pension Rules, 1992.
7.2. He would submit that though the Office Order dated
16.09.2023 is stated to have been signed on
13.09.2023 by the Director, DEPM, was
W.P.(C) No.31236 of 2023 Page 13 of 107
communicated via e-mail on 18.09.2023 (12:10
Hours), which is indicative of the fact that the same
has been passed after receipt of application for
withdrawal of voluntary retirement on 16.09.2023 sent
via e-mail at 17:05 Hours. The falsity of claim of the
opposite parties can be discerned on bare glance at
the Office Order dated 16.09.2023 of the Director,
DEPM and Office Order dated 11.08.2023 of the
MSME Department, copy of which was communicated
to the petitioner along with Letter dated 29.09.2023 of
the MSME Department rejecting the Grievance Petition
filed with regard to acceptance of application
contemplating voluntary retirement.
7.3. It is strenuously argued by Sri Sambit Rath, learned
Advocate that when the provisions contained in Rule
42 of the Pension Rules have prescribed safeguards to
the employee seeking voluntary retirement, it cannot
be construed that the Authority had the discretionary
power to grant voluntary retirement by waiving off
three months‟ notice period. There cannot be
relaxation or waiver of the three months‟ notice period
and the authorities are not vested with the power to
curtail the date of effect of retirement suggested by the
petitioner in the application for voluntary retirement.
Such notice period is meant for the Government
servant (petitioner) for “cooling off” and reflection.
W.P.(C) No.31236 of 2023 Page 14 of 107
Such three months‟ period would also give opportunity
to the employer to make arrangements for search out
substitute. As is apparent from the Office Order dated
16.09.2023, the arrangements have been made to
hand over the charge to the Joint Director and the
Assistant Director who would remain in-Charge of
Testing Laboratories of Balasore and Berhampur
respectively. It gives sufficient indication that no
authority/official has been posted. Therefore, he urged
that there was no point in rejecting the grievance of
the petitioner since no one else is appointed in his
place.
7.4. Amplifying his argument further Sri Sambit Rath,
learned Advocate with all humility submitted that
whereas the petitioner has been serving the
Organisation since 10.10.1991 and having been
promoted to the post of Assistant Director (Inspection)
from the post of Scientific Assistant on 22.10.2020,
the opposite parties-authorities should have been
compassionate enough by considering the plight of the
petitioner who was required to discharge duties as
Senior Scientific Officer in-Charge of Testing
Laboratory, Berhampur (for four days in a week) and
Testing Laboratory, Balasore (for two days in a week).
The distance between Balasore and Berhampur is
around 400 kilometres. The undue haste shown by the
W.P.(C) No.31236 of 2023 Page 15 of 107
opposite parties in accepting the application for
voluntary retirement before the period stipulated by
the petitioner, i.e., 31.10.2023 smacks arbitrariness
and such fanciful action on the part of the employer
(opposite parties) resulted in adverse civil
consequences. Therefore, he would submit that the
opposite parties while rejecting the Grievance Petition
should have extended an opportunity of hearing to
explain the difficulties faced and reasons for applying
for voluntary retirement.
7.5. It is fervently submitted that the impugned Orders
being devoid of reasons, are liable to be set aside.
8. Sri Shantanu Das, learned Additional Standing
Counsel appearing for the opposite parties placed
heavy reliance on the counter affidavit and submitted
that there is no restriction put upon the authority
concerned to accept the application for voluntary
retirement before the specified period by the petitioner.
Emphasis is laid on the fact that the petitioner earlier
made such application(s) in the years 2015 and 2020
on the ground of illness, which were allowed to be
withdrawn before the lapse of notice period.
Nonetheless, the petitioner has submitted yet another
application for voluntary retirement on 03.07.2023
specifying the date of effect of retirement on
W.P.(C) No.31236 of 2023 Page 16 of 107
31.10.2023. Therefore, there being no prohibition on
the employer to consider and accept the application for
voluntary retirement before lapse of three months as
the petitioner has remained indecisive to choose
between to avail “voluntary retirement” or to carry on
with the assigned job. He has been inconsistent in his
decision. Vehemently contesting the matter in order to
justify the action of the opposite parties in accepting
the application for voluntary retirement, referring to
paragraph 15 of the counter affidavit filed by the
opposite party No.2, Sri Shantanu Das, learned
Additional Standing Counsel submitted that the
petitioner has been “in a habit of requesting the
authorities in the name of voluntary retirement
application stating that he is physically and mentally
not sound to continue in the Government services
from the time and again”. Therefore, he would submit
that the Office Order dated 11.08.2023 depicting
acceptance of application for voluntary retirement,
copy of which though was offered to him for
acknowledgement of receipt in a meeting held on
19.08.2023 in the Directorate of EPM, the petitioner
consciously avoided to receive the same. Hence, no
infirmity in acceptance of voluntary retirement
application without waiting for notice period could
have been attributed to the opposite parties.
W.P.(C) No.31236 of 2023 Page 17 of 107
Analysis and discussions:
9. The following undisputed facts needs to be outlined for
consideration of the issues raised:
(a) Application/notice dated 03.07.2023 addressed
to Principal Secretary, MSME Department
seeking voluntary retirement on completion of 20
years of Government service in terms of Rule 42
of the Odisha Civil Services (Pension) Rules,
1992, has been submitted by the petitioner by
specifying:
“Therefore, I request you kind approval on my
willingness for voluntary retirement from service to
the State Government with effect from 31.10.2023
(AN) for which I shall be obliged.”
(b) On 16.09.2023, before lapse of three months‟
notice period envisaged under Rule 42 of the
Pension Rules, 1992, the petitioner withdrew the
application/notice for voluntary retirement citing
consideration of Modified Assured Career
Progression by the Government on completion of
30 years of service.
(c) On the very date, Office Order No.4215–
IIEMET-15/2023/EPM, dated 16.09.2023 stated
to have been signed on 13.09.2023 by the
Director, DEPM, was issued.
W.P.(C) No.31236 of 2023 Page 18 of 107
(d) Grievance Petition with regard to withdrawal of
application/notice for voluntary retirement filed
by the petitioner has come to be rejected by
Letter No.6957– MSME-FE-FE-0026-2015/
MSME, dated 29.09.2023.
10. It is perceived from the record that: though the
opposite party No.1 has claimed to have passed Order
dated 11.08.2023 accepting the application/notice for
voluntary retirement, did not choose to file counter
affidavit on merit of the matter, rather filed affidavit
affirming to have adopted counter affidavit filed by the
opposite party No.2. In the opinion of this Court the
opposite party No.1 would have been the appropriate
party to assert whether such an order has been
communicated and served on the petitioner.
10.1. The assertion of the opposite party No.2 at paragraph
11 of the counter affidavit that “the petitioner has
attended the meeting of the Directorate on 19.08.2023
where he was intimated regarding acceptance of his
voluntary retirement application and required to
receive the copy of the Government order from the
Directorate. Sri Mohanty was well aware of acceptance
of his voluntary retirement application and
intentionally avoided to receive the copy of the
Government orders of acceptance of the voluntary
W.P.(C) No.31236 of 2023 Page 19 of 107
retirement” has been strongly refuted by the petitioner
by way of rejoinder affidavit “the petitioner was aware
about the acceptance of VRS is completely frivolous
and baseless” and the same has no force in law.
10.2. It is specific stance of the petitioner as is revealed from
paragraph 11 of the writ petition that “the withdrawal
application for voluntary retirement has been made
much prior to the Order of retirement taking effect, i.e.
30.09.2023. Even the original Order dated 11.8.2023
wherein the acceptance has been made has also not
been communicated.” and it is stated to have come to
his knowledge when the Grievance Petition qua
withdrawal of application intending voluntary
retirement was rejected and communicated vide e-mail
dated 29.09.2023.
10.3. This Court appreciating rival contentions and
submissions observed that the record is silent about
the fact with respect to service of copy of Order dated
11.08.2023 of MSME Department on the petitioner. No
material is placed by the opposite parties to evince
that the copy of such Order had ever been served prior
to passing of Order dated 29.09.2023 rejecting the
Grievance Petition.
10.4. Furthermore, the record lacks evidence to show that
as to why it took more than one month from
W.P.(C) No.31236 of 2023 Page 20 of 107
11.08.2023 for the opposite party No.2 to make Order
dated 16.09.2023 (though stated to have been signed
by the Director, DEPM on 13.09.2023). It is inquisitive
enough to observe that even as the opposite party No.2
has admitted to have received “the withdrawal of
voluntary retirement application of the petitioner from
the Office of the Senior Scientific Officer, Testing
Laboratory, Balasore” in the Office of the Directorate of
EPM at 4:59 P.M. on 16.09.2023 (vide paragraph 10 of
counter affidavit), there is no explanation whatsoever
placed before this Court neither by way of affirmation
nor submissions as to why it took around six days to
communicate the signed Order dated 13.09.2023 to
the petitioner via e-mail on 18.09.2023.
10.5. It seems after receipt of application for withdrawal of
voluntary retirement stated to be effective from
31.10.2023 (afternoon) on 16.09.2023, the opposite
party No.2 has sprung into action only to deprive the
petitioner his legitimate right to withdraw his
application/notice before lapse of three months from
the date of its making.
10.6. Before communication of Order dated 16.09.2023 is
completed by service via e-mail on 18.09.2023, the
petitioner has effectively served application seeking to
withdraw the application/notice for voluntary
W.P.(C) No.31236 of 2023 Page 21 of 107
retirement. Such withdrawal application is also before
lapse of three months from the date of its submission
on 03.07.2023.
11. A glance at Office Order dated 11.08.2023 of the
Additional Secretary of MSME Department (Annexure-
6A) and Office Order dated 16.09.2023 of the Director
of EPM (Annexure-6) would indicate that the opposite
parties have exercised power under Rule 42 of the
Pension Rules, 1992 to curtail the notice period of
three months.
11.1. To examine whether such a power is vested in the
opposite parties, it is expedient to extract the
provisions contained in Rule 42 of the Pension Rules,
which stand thus:
“42. Voluntary 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.
(2) The notice of voluntary retirement given under
sub-rule (1) shall require acceptance by the
Appointing Authority.
NOTE.–
W.P.(C) No.31236 of 2023 Page 22 of 107
Such acceptance may be generally given in all
cases except those:
(a) in which disciplinary proceedings are
pending or contemplated against the
Government servant concerned for the
imposition of a major penalty and the
Disciplinary Authority, having regard to the
circumstances of the case, is of the view that
the imposition of the penalty of removal or
dismissal from service would be warranted
in the case or
(b) in which prosecution is contemplated or have
launched in a Court of Law against the
Government servant concerned.
If it is proposed to accept the notice of
voluntary retirement in such cases, approval
of the Government should be obtained:
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 that of expiry of
the said period.
(3) (a) A Government servant desirous of
retiring under 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 reason
therefor.
W.P.(C) No.31236 of 2023 Page 23 of 107
(b) On receipt of a request under clause (a), the
Appointing Authority subject to the provision
of sub-rule (2), may consider such request
for the curtailment of the period of
notice of three months on merits and if
he 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) This rule shall not apply to a Government servant
who 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 the rule the expression
“Appointing Authority” shall means the authority
which is competent to make appointment to the
service or post from which Government servant
seeks voluntary retirement.
(5) The qualifying service as on the date of intended
retirement of the Government servant retiring
under this rule, with or without permission shall
be increased by the period not exceeding five
years, subject to the condition that the total
W.P.(C) No.31236 of 2023 Page 24 of 107
qualifying service rendered by the Government
servant does not any case exceed twenty five
years and it does not take him beyond the date of
superannuation with effect from 01.12.2008. (Vide
Finance Department Notification No.24142/F.,
dated 04.09.2015).
(6) The pension and retirement gratuity of the
Government servant retiring under this rule shall
be based on the emoluments as specified under
Rule 48 and the increase not exceeding five years
in his qualifying service not entitle him to any
notional fixation of pay for the purposes of
calculating pension and gratuity.”
11.2. Meticulous reading of said provisions contained in
Rule 42 of the Pension Rules would transpire that:
(a) A Government servant, having completed 20
years of service, desirous of voluntarily retire
from service can make an application to the
Appointing Authority;
(b) The notice of voluntary retirement does require
acceptance by the Appointing Authority, which is
granted generally except under certain
circumstances enumerated.
(c) Such notice for voluntary retirement shall be
made “not less than three months in writing”. To
seek curtailment such period of three months,W.P.(C) No.31236 of 2023 Page 25 of 107
scope is given to the Government servant (but not
the Appointing Authority) vide Rule 42(3).
(d) Right to refuse voluntary retirement has been
conferred on the Appointing Authority. As per
Rule 42(3)(b), the Appointing Authority is given
power to relax subject to satisfaction that the
curtailment of period of notice will not cause any
administrative inconvenience.
11.3. The instant case is not one of refusal of the Appointing
Authority to grant voluntary retirement. Under such
fact-situation, proviso to clause (b) of Note appended
to sub-rule (2) of Rule 42 would have application.
Under said proviso it is laid down 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.
11.4. Ergo, it is accepted as argued by Sri Sambit Rath,
learned Advocate that it is at the option of the
petitioner the notice period can be curtailed but not
otherwise. Such curtailment can be allowed, of course,
at the discretion of the Appointing Authority on
consideration of request for the curtailment of the
period of notice of three months on merits. If the
W.P.(C) No.31236 of 2023 Page 26 of 107
Appointing Authority 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. In other words, the Appointing Authority has
no option but to wait till notice period elapses, if he
does not refuse voluntary retirement. In the case at
hand, as is manifest from notice dated 03.07.2023
seeking voluntary retirement (Annexure-1) that the
petitioner has specified his willingness to retire
voluntarily with effect from 31.10.2023. From the date
of 03.07.2023 said effective date for retirement is more
than three months.
11.5. Significant it is to take cognizance of the expression
“give notice of not less than three months in writing to
the Appointing Authority” as employed in Rule 42(1) of
the Pension Rules. Acceptance of the application/
notice dated 03.07.2023 before lapse of three months
or the date specified by the petitioner intending to
retire voluntarily, in essence, frustrates the purport of
Rule 42 or renders the avowed object of Rule 42 of the
Pension Rules unworkable. It is maintained that the
requirement as to “not less than three months‟ in
writing” in Rule 42 is a matter of policy and safeguard
for the employee. Noteworthy to state that the
expressions “within three months” and “not less than
W.P.(C) No.31236 of 2023 Page 27 of 107
three months” are two quite different aspects. Taking
into consideration the expression as incorporated in
Rule 42 of the Pension Rules, the period for the
requisite notice as “not less than three months” is
willed by rule-making authority and this obligation is
to be construed as absolute. The span of notice is,
thus, essence of the mandate. The necessity of notice
and the span of notice both are integral to the scheme
of the provisions contained in Rule 42. The provisions
contained in the said Rule cannot, therefore, be split
up into essential and non-essential components, the
whole of it being mandatory.
11.6. Meaning of “not less than” has been understood as
“Complete days; exclusive of named first or last days”.
See, Concise Law Dictionary, by P.G. Osborn, published
by Sweet and Maxwell, 1927.”
11.7. Where the statute provides that notice of “seven clear
days” is required to be given, it would exclude the date
of issue of the notice and the date of meeting. [Vide,
Shanti Dei Vrs. State of Odisha, 2006 (II) OLR 470 (Ori);
Paresh Nath Kuanr Vrs. State of Odisha, 2006 (II) OLR
390; Sarat Padhi Vrs. State, 1988 (I) OLR 80 (Ori) = 65
(1988) CLT 122 (Ori) (FB)].
11.8. The expression “not less than three months” can be
better comprehended from the following discussion
W.P.(C) No.31236 of 2023 Page 28 of 107
contained in Bharti Gupta Ramola Vrs. Commissioner
of Income Tax, 2012 SCC OnLine Del 2080:
“10. We are conscious that in some decisions the
expression “not less than” has been interpreted to
mean a clear period, excluding the date of service
(see Chambers Vrs. Smith, 67 Revised Reports
231, In re Railways Sleepers Supply Company,
(1885) 29 Ch.D. 204 (3), Mcqueen Vrs. Jackson,
1903 (2) KB 163, etc.). However, the said cases
were where the legislature had fixed time limit,
which should not be less than the prescribed days
for complying with the requirements of law or to
furnish reply. In such circumstances, it has been
held that in computation of time, fraction of a day
should not be reckoned (see In re Hector Whalling
Limited, 1935 All England Reporter, 302 (1936 Ch.
208). Even under the Income Tax Act, 1922,
the stipulation not less than 30 days in
Section 22(2) was interpreted in
Commissioner of Income Tax Vrs. Ekbal and
Company, AIR 1945 Bom 316 to mean 30
clear days. This expression was
distinguished from the expression within 30
days, which means within two points of time.
Similar views have been expressed in N.V.R.
Nagappa Chettiar Vrs. Madras Race Club, AIR
1951 Mad 831, Anokhmal Bhurelal Vrs. Chief
Panchayat Officer Rajasthan, Jaipur, AIR 1957
Raj 388, Smt. Haradevi Vrs. State of Andhra
Pradesh, AIR 1957 AP 229.
11. In T.M. Lall Vrs. Gopal Singh, AIR 1963 P&H 378,
Rule 4 of the All India Bar Council (First
W.P.(C) No.31236 of 2023 Page 29 of 107
Constitution) Rules, 1961 had come up for
consideration. In the said rule, the expressions
“not less than” and “not more than” were used.
Because of the use of the said words, it was held
that the provision referred to complete or entire
days intervening between the two terminal days.
Accordingly, fraction of day should not be taken
into consideration.
12. However, in English language many words have
different meanings and a word can be used in
more than one sense. Every dictionary gives
several meanings to each word. We cannot
mechanically apply every meaning given in the
dictionary and have to choose an appropriate
meaning that the word may carry in the context in
which it is used in the legislation. It is the context
which determines the meaning of the word (See
P.V. Indiresan (2) Vrs. Union of India, (2011) 8
SCC 441).
13. It is appropriate to refer to the decision of the
Supreme Court in Commissioner of Income Tax
Vrs. Braithwaite and Company Limited, (1993)
201 ITR 343. In the said case, the assessee had
obtained a term loan of Rs.50 lacs from a bank
vide agreement dated 1st August, 1964. The loan
was to be paid in five installments ending on 31 st
July, 1971. Question arose whether the
repayment as stipulated under the agreement was
during a period of “not less than” seven years as
per the proviso to Rule 1(b) of the second schedule
of the Companies (Profits) Surtax Tax Act, 1964.
Reversing the judgment of the High Court and
accepting the stand of the assessee, it was held
W.P.(C) No.31236 of 2023 Page 30 of 107
that a fraction of a day would be counted to
determine and decide whether the loan was for a
period of “less than seven years” or “more than
seven years”. It was held as under:
„We are of the view that on a plain reading of the
proviso to Rule 1(v), Second Schedule to the Act, it
is clear that in order to claim the benefit of the
said provision, the borrowed money has to be
repaid during the period of more than seven years.
The only interpretation which can be given to
the expression “during a period of not less
than seven years” is that the said period
should go beyond seven years. The reasoning
is simple. The period of seven years would
not be complete till the last “minute” or even
the last “second” of the said period are
counted. In other words, till the last minute of the
seven-year period is completed, the period
remains less than seven years. In the present
case, the agreement was entered into on August 1,
1964. The last instalment was to be paid on July
31, 1971. The seven years were to complete at 12
p.m. (between the night of July 31, 1971, and
August 1, 1971). Even if the loan was paid back at
11.59 p.m. on July 31, 1971, the period would be
less than seven years by one minute. It is,
therefore, obvious that the period of “not less
than seven years” can only mean till after
the completion of seven years. We, therefore,
hold that the repayment of the borrowed amount
during the period of seven years does not mean
repayment “during a period of not less than seven
years”. To claim the benefit under rule 1(v) of theW.P.(C) No.31236 of 2023 Page 31 of 107
Second Schedule to the Act the repayment of the
borrowed money must be during a period which is
more than seven years.
We find support in the view taken by us in the
following cases. In Ramanasari Vrs. Muthusami
Naik, (1906) ILR 30 Mad 248, Section 18 of the
Madras Rent Recovery Act, 1865 (VIII of 1865),
required that, in fixing the day of sale, not less
than seven days must be allowed “from the time
of the public notice and not less than 30 days from
the date of distraint”. The sale was held on the
13th February, but the notice was published on
6th February. It was held that “not less than”
means the same as “clear” and seven whole
days must elapse between the day of the
notice and the day fixed for sale. In Railway
Sleepers Supply Co., In re (1885) LJ 54 Ch 720;
(1885) 29 Ch 204, it was held that the
expression “not less” than a given number of
days means “clear days”. It was held that the
expression “not less” indicates “a minimum”.‟
14. Bombay High Court in Ravi Vrs. Collector,
Wardah, (2008) 3 Maharashtra Law Journal 758
had examined the expression within a period “not
more than one month” used in Maharashtra
Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965. The said words in
question stipulated and envisaged that an
application should be filed within a period of not
more than one month “from” the date of
notification of the election result. In view of the
word “from”, it was held that the first date had toW.P.(C) No.31236 of 2023 Page 32 of 107
be excluded in view of Section 10 of the Bombay
General Clauses Act, 1904.”
11.9. In M.N. Abdul Rawoof Vrs. Pichamuthu, (2000) 3 SCC
121 in the context of explaining the connotation of
expression “not less than” it has been observed as
follows:
“7. As we read the said proviso it appears to us that
the expression “not less than Rs.1200” means that
the minimum amount of rental value, if it is
Rs.1200, then the person would be covered by the
proviso and would not be regarded as a debtor. In
Stroud‟s Judicial Dictionary, 5th Edn., at p. 1700
it is noted that:
„Where a statute prescribes a penalty for an
offence of „not less‟ than a stated amount, that is
the minimum penalty that justices can impose,
notwithstanding that the section, prescribing the
penalty, says that the offender „shall be liable‟
thereto; and the power to mitigate given by the
Summary Jurisdiction Act, 1879 (C. 49) S. 4, was
in such a case qualified so that mitigation could
not go below such minimum (Osborn Vrs. Wood
Bros., (1897) 1 QB 197 = 66 LJQB 178 = 76 LT
60)‟.
8. In Raja Kulkarni Vrs. State of Bombay, (1953) 2
SCC 552 = AIR 1954 SC 73 = 1954 SCR 384 a
question arose regarding the recognition of a trade
union. Section 13 of the Bombay Industrial
Regulation Act, 1946 provided that a
representative union should have a membership of
W.P.(C) No.31236 of 2023 Page 33 of 107
“not less than 15 per cent of the total number of
employees”. While interpreting this provision it
was observed at SCR p. 390 that:
„The statute lays down the minimum qualification
of 15 per cent of membership to enable the union
to be called a „representative union‟.***‟After laying down the test of not less than 15 per
cent it was perfectly reasonable“not to allow any other union such as the
appellants to interpose in a dispute on behalf of
the textile workers when they did not command
the minimum percentage or when their
membership fell below the prescribed percentage”.
The view which was expressed in Raja Kulkarni
case, (1953) 2 SCC 552 = AIR 1954 SC 73 = 1954
SCR 384 clearly was that when the statute uses
the expression not less than a particular figure
then that figure is the minimum.
9. In K.P. Varghese Vrs. ITO, (1981) 4 SCC 173 this
Court was required to interpret Section 52 of the
Income Tax Act, 1961 where in sub-section (2) the
Income Tax Officer would get jurisdiction to
acquire a capital asset if the fair market value of
that asset exceeded the full value of consideration
“by an amount of not less than 15 per cent of the
value so declared”. Analysing this provision it was
held that according to sub-section (2) the
difference between the fair market value and the
consideration declared will have to be 15 per cent
or more to enable the Income Tax Officer to
exercise jurisdiction under that section. To the
W.P.(C) No.31236 of 2023 Page 34 of 107
same effect is the decision of this Court in Karnail
Singh Vrs. Darshan Singh, 1995 Supp(1) SCC 760.
Section 4 of the Punjab Gram Panchayat Act, 1952
enables the Government to declare any village or
group of contiguous villages to constitute one or
more sabha area if they had a population of “not
less than 500”. Interpreting this provision it was
held that what was required for the exercise of
powers under the said Section 4 was that there
should be a minimum population of 500. In other
words, the expression population of not less than
500 was interpreted to mean that the minimum
population should be 500.
10. The High Court has referred to the decision of this
Court in Pioneer Motors (P) Ltd. Vrs. Municipal
Council Nagercoil, AIR 1967 SC 684 = (1961) 3
SCR 609 where the expression was, which was
being interpreted, “not being less than one month”.
This Court held that in order that a notice should
be valid the expression not being less than one
month would mean that there must be notice of 30
clear days. This would be possible only if the 1st
and the last day on which the notice is issued is
excluded. Rather than helping the respondent in
our opinion the said decision fortifies the view
which we have taken namely, that the period
specified is the minimum period. Not less than
one month meant that 30 clear days‟ notice
had to be given and it is only in order to
ensure that 30 clear days‟ notice is given
that, basing on Section 9 of the General
Clauses Act, it was observed that the 1st and
the last dates should be excluded.
W.P.(C) No.31236 of 2023 Page 35 of 107
11. Similarly, in CIT Vrs. Braithwaite & Co. Ltd.,
(1993) 2 SCC 262 where the Court had to consider
the expression “of a period not less than 7 years”
it was held that the period cannot be even one
minute less than 7 years. The ratio of this decision
is not different than the decision of this Court in
Karnail Singh, 1995 Supp (1) SCC 760, K.P.
Varghese, (1981) 4 SCC 173 and Raja Kulkarni,
(1953) 2 SCC 552 = AIR 1954 SC 73 = 1954 SCR
384. To the same effect is the decision of this
Court in Saketh India Ltd. Vrs. India Securities
Ltd., (1999) 3 SCC 1.”
11.10. The term “month” can be couched from the
following discussions contained in Rameshchandra
Ambalal Joshi Vrs. State of Gujarat, (2014) 1 SCR
1112:
“15. The first question which calls for our answer is the
meaning of the expression “month”: whether it
would mean only a period of 30 days and,
consequently, whether six months would mean a
period of 180 days. The word “month” has been
defined under Section 3(35) of the General
Clauses Act to mean a month reckoned according
to the British calendar. Therefore we cannot ignore
or eschew the word „British calendar‟ while
construing “month” under the Act. Accordingly, we
are of the opinion that the period of six months
cannot be calculated on 30 days in a month basis.
Therefore, both the modes of calculation suggested
by Mr. Ahmadi do not deserve acceptance and are
rejected accordingly.
W.P.(C) No.31236 of 2023 Page 36 of 107
16. The next question which calls for our answer is
the date from which six months‟ period would
commence. In case of ambiguity with reference to
the date of commencement, Section 9 of the
General Clauses Act can be pressed into service
and the same reads as follows:
„9. Commencement and termination of time.–
(1) In any Central Act or Regulation made after
the commencement of this Act, it shall be
sufficient, for the purpose of excluding the
first in a series of days or any other period of
time, to use the word „from‟, and, for the
purpose of including the last in a series of
days or any other period of time, to use the
word „to‟.
17. From the judgment of this Court in the case of
Sivakumar Vrs. Natarajan 2009 (9) SCR 386 =
(2009) 13 SCC 623 and as quoted in the preceding
paragraph of this judgment, it is evident that this
Court recorded its agreement to a limited extent
that „in cases where there is an ambiguity or
suspicion with reference to the date of
commencement of period of limitation‟ „Section 9 of
the General Clauses Act can be pressed into
service.‟ We would hasten to add that this Court in
Sivakumar (supra) did not give nod to the
following proposition enunciated by the Kerala
High Court in K.V. Muhammed Kunhi Vrs. P.
Janardhanan, 1998 CRL.L.J. 4330.
„3 *** But in the instant case before me, Section
138 proviso (a) is involved which is so clear
W.P.(C) No.31236 of 2023 Page 37 of 107
(as extracted above) that the date of
limitation will commence only from the date
found in the cheque or the instrument.‟
18. In the case of K.V. Muhammed Kunhi (supra) the
cheque was dated 17.11.1994 and that was
presented on 17.05.1995, and in this background
the Court observed as follows:
„5 *** When on the footing of the days covered
by the British calendar month the period of
limitation in the case on hand is calculated,
the cheque ought to have been presented in
the Bani for collection on or before
16.05.1995. But in this case, as pointed out
above the cheque had been presented for
collection only on 17.05.1995, which is
clearly barred by limitation.‟
19. In this case, six months‟ period expired a day prior
to the corresponding month. In the case in hand,
no such day falls in the corresponding month and
therefore the last day would be last date of the
immediate previous month.
***
21. Proviso (a) to Section 138 of the Act uses the
expression „six months from the date on which it is
drawn‟. Once the word „from‟ is used for the
purpose of commencement of time, in view of
Section 9 of the General Clauses Act, the day on
which the cheque is drawn has to be excluded.
22. This Court, relying on several English decisions,
dealt with the issue of computation of time for the
W.P.(C) No.31236 of 2023 Page 38 of 107
purpose of limitation extensively in Haru Das
Gupta Vrs. State of West Bengal, (1972) 1 SCC
639 wherein Paragraph 5 states as follows:
„5. These decisions show that courts have
drawn a distinction between a term created
within which an act may be done and a time
limited for the doing of an act. The rule is
well established that where a particular
time is given from a certain date within
which an act is to be done, the day on
that date is to be excluded, (see
Goldsmiths Company Vrs. The West
Metropolitan Railway Co. (1904 KB 1 at 5).
This rule was followed in Cartwright Vrs.
Maccormack, (1963) 1 All E.R. 11, where the
expression „fifteen days from the date of
commencement of the policy‟ in a cover note
issued by an insurance company was
construed as excluding the first date and the
cover note to commence at midnight of that
day, and also in Marren Vrs. Dawson
Bentley and Co. Ltd., (1961) 2 QB 135, a
case for compensation for injuries received in
the course of employment, where for
purposes of computing the period of
limitation the date of the accident, being the·
date of the cause of action, was excluded.
(See also Stewart Vrs. Chadman, (1951) 2
KB 792 and In re North, Ex parte Wasluck
(1895) 2 QB 264.) Thus. as a general rule
the effect of defining a period from such
a day until such a day within which an
act is to be done is to exclude the firstW.P.(C) No.31236 of 2023 Page 39 of 107
day and to include the last day. [See
Halsbury‟s Laws of England (3rd ed.) Vol.37,
pp.92 and 95.] There is no reason why the
aforesaid rule of construction followed
consistently and for so long should not also
be applied here.‟***”
11.11. In Skoda Auto Volkswagen India Pvt. Ltd. Vrs.
Commissioner (Appeals), 2021 SCC OnLine Bom 349
the meaning of “month” has been explained as follows:
“36. As per sub-section (35) of Section 3 of the General
Clauses Act, the word „month‟ has been defined to
mean a month reckoned according to the British
calendar.
37. In the case of In re : V.S. Metha, AIR 1970 AP 234,
Andhra Pradesh High Court was considering the
provisions of Section 106 of the Factories Act,
1948 as per which no court shall take cognizance
of any offence punishable under the said act
unless complaint thereof is made within three
months from the date on which the alleged
commission of the offence came to the knowledge
of the inspector. In that context, Andhra Pradesh
High Court examined the meaning of the word
„month‟ : whether it would mean 30 days in which
case the complaint should be filed within 90 days
from the date of knowledge. After referring to
Section 3(35) of the General Clauses Act, it was
held that the word „month‟ would mean a calendar
month and by extension the term „three months‟
as appearing in section 106 of the Factories Act,W.P.(C) No.31236 of 2023 Page 40 of 107
1948 would only mean a period of three calendar
months.
38. Again, in Bibi Salma Khatoon Vrs. State of Bihar,
(2001) 7 SCC 197 = AIR 2001 SC 3596, Supreme
Court dealt with the provisions of section 16(3) of
the Bihar Land Reforms Act, 1961 which provided
that benefits under the said act could be availed of
if an application is made within three months of
the date of registration of the documents of
transfer. Posing the question as to what was
meant by the word „month‟, Supreme Court held
that British calendar would mean Gregorian
calendar. It was held that when the period
prescribed is a calendar month running from any
arbitrary date, the period of one month would
expire upon the day in the succeeding month
corresponding to the date upon which the period
starts.
39. Supreme Court in State of H.P. Vrs. Himachal
Techno Engineers, 2010 AIR SCW 5088
considered the period of limitation prescribed
under sub-section (3) of Section 34 of the
Arbitration and Conciliation Act, 1996. While
Section 34 relates to application for setting aside
arbitral award, sub-section (3) thereof prescribes
the period of limitation for filing of such application
which is three months. In that context, Supreme
Court examined the meaning of the word „month‟
and held that a month does not refer to a period of
30 days but refers to the actual period of a
calendar month. It was clarified that if the month
is April, June, September or November, the period
comprising the month will be 30 days; if the month
W.P.(C) No.31236 of 2023 Page 41 of 107
is January, March, May, July, August, October or
December, the month will comprise of 31 days; but
if the month is February, the period will be 29
days or 28 days depending upon whether it is a
leap year or not. After referring to Section 3(35) of
the General Clauses Act, it was held that the
general rule is that the period ends on the
corresponding date in the appropriate subsequent
month irrespective of some months being longer
than the rest. Therefore, it was held that when the
period prescribed is three months (as contrasted
from 90 days) from a specific date, the said period
would expire in the third month on the date
corresponding to the date upon which the period
starts. As a result, depending on the months, it
may mean 90 days or 91 days or 92 days or 89
days.”
11.12. With the above conspectus of meaning of the
term “month” and the expression “not less than”, it is
noticed that the opposite parties have demonstrably
committed error in having regard to the expression “by
giving notice of not less than three months in writing
to the Appointing Authority” as employed in sub-rule
(1) of Rule 42 of the Pension Rules, 1992. Moreover,
reading sub-rule (3) read with sub-rule (1) ibid. would
make it unambiguous that the petitioner-Government
servant may seek for curtailment of the period of
notice of three months and it is the satisfaction of the
Appointment Authority to allow or not to allow. It does
require no authority to cite that if a statute provides
W.P.(C) No.31236 of 2023 Page 42 of 107
for a thing to be done in a particular manner, then it
has to be done in that manner alone and in no other
manner.
11.13. As a precept it may be relevant to state that
whenever the statute prescribes that a particular act is
to be done in a particular manner and also lays down
that failure to comply with the said requirement leads
to severe consequences, such requirement would be
mandatory. It is the cardinal rule of the interpretation
that where a statute provides that a particular thing
should be done, it should be done in the manner
prescribed and not in any other way. Reference may be
had to State of Jharkhand Vrs. Ambay Cements, (2005)
1 SCC 368.
11.14. Whereas it is undisputed that the petitioner has
submitted the application/notice dated 03.07.2023
intending to retire voluntarily by specifying therein the
effective date as “31.10.2023” (Annexure-1) which is
“not less than three months in writing”, and the
petitioner has not requested the Authority for
curtailment of such notice period of three months, the
opposite parties could not have exercised power suo
motu and accepted the said notice for voluntary
retirement before lapse of such period stipulated in the
notice. Doing so attracted violation of provisions
W.P.(C) No.31236 of 2023 Page 43 of 107
contained in sub-rule (1) read with sub-rule (3) of Rule
42 of the Pension Rules.
11.15. Further reading of sub-rule (2) of Rule 42 would
make the position more clarified that the notice of
voluntary retirement “given under sub-rule (1) shall
require acceptance by the Appointing Authority”.
Appended to said sub-rule (2) is a note with proviso
which unequivocally speaks that where the Appointing
Authority does not refuse to grant 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.
11.16. To reiterate, the case at hand is not a case where
the Government servant sought for curtailment of
notice period nor is it a case of refusal to grant
permission. Had the instant case been on account of
consideration of curtailment of notice period at the
behest of Government servant, in terms of sub-rule (3)
of Rule 42 a discretion is vested in the Appointing
Authority to relax such period subject to “satisfaction”
that the curtailment of period of notice will not cause
any administrative inconvenience. As observed in Gazi
Sududdin Vrs. State of Maharashtra, (2003) 7 SCC 330
“satisfaction” of the authority can be interfered with if
the satisfaction recorded is demonstratively perverse
W.P.(C) No.31236 of 2023 Page 44 of 107
based on no evidence, misreading of evidence or which
a reasonable man could not form or that the person
concerned was not given due opportunity resulting in
prejudice. To that extent, objectivity is inbuilt in the
subjective satisfaction of the authority. In the case
hand the opposite parties have not placed any material
to show that the Government servant has made
request to curtail period of notice and the opposite
parties have recorded “satisfaction” as to causing
“administrative inconvenience” as is required under
sub-rule (3) of Rule 42.
11.17. Therefore, necessary corollary would be that
when the petitioner has given notice of not less than
three months in writing to the Appointing Authority
intending to retire voluntarily from a specified date,
i.e., 31.10.2023, there was no occasion for the
opposite parties to accept the application for voluntary
retirement prior to lapse of such period stipulated.
Therefore, the impugned Orders in Annexure-6 and
Annexure-6A run contrary to provisions of Rule 42.
12. It has been contended by the opposite parties that on
earlier occasions request of the petitioner for
withdrawal of application for voluntary retirement in
the years 2015 and 2020 were conceded and again he
has made similar request in the year 2023 having
W.P.(C) No.31236 of 2023 Page 45 of 107
submitted application for voluntary retirement, which
is not acceded to. Refuting such contention, it is
argued by learned counsel for the petitioner that there
can be no semblance of factual aspect and each
context has to be judged on its own perspective. It
would suffice to say that each case or each occasion is
to be treated on its own merits. Therefore, the scope of
consideration of factual aspect with respect to earlier
occasions cannot have bearing on the present context
qua application/notice dated 03.07.2023. Hence, it
may be apposite to hold that when there is no request
made by the petitioner to waive or curtail the three
months‟ notice period, passing orders accepting the
application for voluntary retirement prior to elapse of
the period specified in the notice dated 03.07.2023
would be contrary to the purport of Rule 42 of the
Pension Rules. As is apparent from the application for
consideration of voluntary retirement with effect from
31.10.2023 that the petitioner was to discharge his
duty for two days at Balasore and four days at
Berhampur in a week (by travelling around 400
kilometres– one side). As it appears the withdrawal of
such notice was on account of the fact that his
Modified Assured Career Progression has been under
consideration by the Government. The opposite
parties, therefore, should have allowed such
W.P.(C) No.31236 of 2023 Page 46 of 107
withdrawal as they could not treat the applications for
voluntary retirement submitted in the years 2015 and
2020 as if they are continuation of the application
dated 03.07.2023.
12.1. Relevant here to take note of the decision rendered by
the Hon‟ble Supreme Court of India in the context of
voluntary retirement in K.L.E. Society Vrs. Dr. R.R.
Patil, (2002) 5 SCC 278, wherein following is the
observation:
“11. The Rule speaks of two authorities, namely, the
appointing authority of the employee and the
authority competent to approve the appointment of
the employee concerned. No particular form of
giving the notice is specified in the Rule except
that it must be in writing and should be
addressed to the appointing authority. As far as
the period of notice is concerned, a minimum three
months‟ period is specified subject to both the
appointing authority and the approving authority
being satisfied that the employee’s case merited a
lesser notice period. In other words, as far as the
authorities themselves are concerned they cannot
on their own curtail the notice period. Once the
right is exercised by the employee, he can
withdraw the notice to retire provided he:
(i) makes a request to withdraw within the
“intended date of retirement”; and
(ii) is in a position to establish that there is a
material change in the circumstances by
W.P.(C) No.31236 of 2023 Page 47 of 107
reason of which the notice to retire
voluntarily had been given in the first place.
12. If there is no such withdrawal of notice, the
request for voluntary retirement can be accepted
under clause (j) subject to two exceptions neither
of which is relevant to this case. Finally, an order
of voluntary retirement can be passed by the
appointing authority subject again to the
fulfillment of two preconditions under clauses (l)
and (m) of the sub-rule viz. the specific prior
approval of the approving authority and the
verification in consultation with the Accountant-
General that the employee has put in qualifying
service of 20 years.
13. In answer to the first question, the learned counsel
for the appellant contended that under clause (j) of
sub-rule (5) of Rule 50 of the Scheme, a notice of
voluntary retirement is to be generally accepted in
the absence of a valid notice of withdrawal. It is
contended that the withdrawal of the respondent‟s
request of voluntary retirement was not in terms of
clause (i) in that it did not even claim any change
in the circumstances for which voluntary
retirement had been sought by him.
14. To our mind irrespective of the validity of the
notice of withdrawal the appellant‟s order
accepting the respondent‟s request for voluntary
retirement cannot be sustained primarily because
the first notice given by the respondent on
02.12.1994 for voluntary retirement could not be
acted upon.
W.P.(C) No.31236 of 2023 Page 48 of 107
15. As noted above, Rule 50(5) provides for a
minimum period of notice unless explicitly
curtailed under clause (h) of Rule 50(5). The
respondent had not specified an intended date of
retirement in the first notice. He had asked for
“permission to take voluntary retirement at the
earliest” but there was no plea for curtailing the
notice period. Therefore in the context of Rule
50(h), the “earliest” would have been after three
months viz. 2nd March. The importance of the
notice period lies in the fact that the
retirement if accepted would be effective on
the expiry of that period. However, no action
was taken by the appellant to retire Respondent-1
then. On the other hand, after the notice period
expired, Respondent-1 was not only continued in
service but vested with additional obligations.
Respondent-1 did not refuse nor did he protest
this. He continued in service well after the expiry
of the first notice period. Both the appellant and
Respondent-1 by their conduct clearly treated the
first notice as infructuous and inoperative. Had
the appellant treated the first notice of retirement
as the operative one, when the impugned order of
acceptance was issued, Respondent-1 would have
been treated as retired with effect from the expiry
of the first notice period.
16. When Respondent-1 submitted the second notice
on 05.07.1995 no reference was made to the
earlier notice dated 02.12.1994. Besides there
could not have been two applications for voluntary
retirement. By accepting the second application on
05.07.1995 the first application must in any event
W.P.(C) No.31236 of 2023 Page 49 of 107
be treated as having been superseded.
Respondent-1‟s letter dated 05.07.1995 was in
fact a fresh application for voluntary retirement.
Here too Respondent-1 did not specify the
intended date of retirement. He only requested
that he may be permitted to take retirement “at the
earliest”. The non-specification of a date coupled
with the fact that no request was made for
curtailment of the notice period, meant that the
date of his voluntary retirement could only be on
or after 05.10.1995. During this period,
Respondent-1 sent the letter dated 19.07.1995
requesting that the notice of voluntary retirement
dated 05.07.1995 be kept in abeyance. This was
not a letter for withdrawing the notice. It was a
request that the notice may be kept in abeyance in
the sense not considered immediately thus
postponing the intended date of retirement.
Assuming that the letter dated 19.07.1995 was a
notice of withdrawal and that the appellant was
right in discarding it, nevertheless the appellant
was bound to allow the notice period of three
months calculated from 05.07.1995 to expire
before issuing an order accepting the notice.
Admittedly the appellant did not do that. It issued
the impugned order within 15 days.
17. The appellant purported to treat the notice dated
05.07.1995 as a continuation of the first notice
dated 02.12.1994 for the purpose of calculating
the notice period. It could not have done that for
the reasons stated earlier. The appellant not
having waited for three months from
05.07.1995, the order accepting Respondent-
W.P.(C) No.31236 of 2023 Page 50 of 107
1‟s request for voluntary retirement was
premature and amounted to unilateral
curtailment of the notice period by the
appellant contrary to the Scheme and more
particularly Rule 50(5)(c) thereof. The
impugned order cannot but be held to be bad.”
12.2. In such view of the matter, the contention of the
opposite parties that the consideration of earlier
applications for voluntary retirement and withdrawal
thereof has significant consequence is liable to be
repelled.
13. The petitioner having made application dated
03.07.2023 for voluntary retirement specifying date of
retirement as “31.10.2023” (notice period of “not less
than three months” in writing to the Appointing
Authority), the same is in consonance with sub-rule
(1) of Rule 42. The petitioner could very well withdraw
the same before lapse of such period as specified.
13.1. It has already been observed that before elapse of
minimum notice period of three months, the opposite
parties could not have acted upon the same and
allowed the petitioner to retire with effect from
30.09.2023. Such an action is incoherent to the
requirement under the provisions of Rule 42 of the
Pension Rules. In the first place, Office Order dated
11.08.2023 of the MSME Department (Annexure-6A)
W.P.(C) No.31236 of 2023 Page 51 of 107
could not be said to have been valid as it is apparently
made without waiting for minimum period of three
months‟ notice period. In the second place, no sanctity
can be attached to the Office Order dated 16.09.2023
of the Director, DEPM (Annexure-6) inasmuch as the
same is made prior to minimum notice period of three
months. This apart, for another reason the Orders in
Annexures-6 and 6A cannot be held to be legal as
before the orders are stated to have been
communicated on 18.09.2023 via e-mail to the
petitioner (Annexure-6), he had already communicated
application of withdrawal of notice dated 03.07.2023
(Annexure-3).
13.2. At this juncture, it may be apposite to refer to Air India
Express Limited Vrs. Captain Gurdashan Kaur Sandhu,
(2019) 17 SCC 129, wherein it has been observed as
follows:
“11. The circumstances under which an employee can
withdraw the resignation tendered by him and
what are the limitations to the exercise of such
right, have been dealt by this Court in a number of
decisions.
11.1. In Jai Ram Vrs. Union of India, AIR 1954 SC
584, the Government servant concerned was to
attain age of 55 years on 26.11.1946. He applied
on 07.05.1945 for leave preparatory to retirement
in terms of Fundamental Rule 86. The request wasW.P.(C) No.31236 of 2023 Page 52 of 107
finally allowed and he was given 6 months‟ leave
which was to expire on 25.05.1947. Ten days
before such expiry i.e. on 16.05.1947, he sent an
intimation that he would resume his duties which
request was rejected. The submission that the age
of retirement was 60 years was rejected by this
Court. The submission that in terms of Rule 56(b)(i)
of Chapter IX of the Fundamental Rules, if found
efficient, he could have continued till he attained
the age of 60 years, was rejected. It was observed
that when a public servant himself expresses his
inability to continue in service any longer and
seeks permission for retirement, the required
exercise in terms of said Rule 56(b)(i) to decide
whether to continue him beyond the age of 55
years was rightly not undertaken and the age of
retirement for him would be 55 years. In the
context whether he could apply for resuming
duties on 16.05.1947, it was observed by the
Constitution Bench of this Court : (AIR pp. 586-87,
para 7)„7. *** It may be conceded that it is open to a
servant, who has expressed a desire to retire
from service and applied to his superior
officer to give him the requisite permission, to
change his mind subsequently and ask for
cancellation of the permission thus obtained;
but he can be allowed to do so long as he
continues in service and not after it has
terminated.
As we have said above, the plaintiff’s service
ceased on 27.11.1946; the leave, which was
allowed to him subsequent to that date, was
W.P.(C) No.31236 of 2023 Page 53 of 107
post-retirement leave which was granted
under the special circumstances mentioned
in FR 86. He could not be held to continue in
service after 26.11.1946, and consequently it
was no longer competent to him to apply for
joining his duties on the 16.05.1947, even
though the post-retirement leave had not yet
run out. In our opinion, the decision [Union of
India Vrs. Jai Ram, 1952 SCC OnLine P&H
52 = ILR (1952) 1 P&H 562 of the Letters
Patent Bench of the High Court is right and
this appeal should stand dismissed.‟11.2. In Raj Kumar Vrs. Union of India, (1968) 3 SCR
857 = AIR 1969 SC 180, an officer belonging to the
Indian Administrative Service tendered resignation
and addressed a letter to the Chief Secretary to
the Government of Rajasthan on 30.08.1964 that
it may be forwarded to the Government of India
with remarks of the State Government. The State
Government recommended that the resignation be
accepted and on 31.10.1964 the Government of
India requested the Chief Secretary to the State
Government “to intimate the date on which the
appellant was relieved of his duties so that a
formal notification could be issued in that behalf”.
Before the date could be intimated and formal
notification could be issued, the officer withdrew
his resignation by letter dated 27.11.1964. On
29.03.1965 an order accepting his resignation
was issued. The challenge raised by the officer
was rejected and the High Court held [Raj Kumar
Vrs. Union of India, 1965 SCC OnLine P&H 187 =
ILR (1966) 1 P&H 236] that the resignation
W.P.(C) No.31236 of 2023 Page 54 of 107
became effective on the date the Government of
India had accepted it. While dismissing the
appeal, a Bench of three Judges of this Court
observed : (AIR p. 182, paras 4-5)
„4. The letters written by the appellant on
21.08.1964, and 30.08.1964, did not
indicate that the resignation was not to
become effective until acceptance thereof
was intimated to the appellant. The
appellant informed the authorities of the
State of Rajasthan that his resignation may
be forwarded for early acceptance. On the
plain terms of the letters, the resignation was
to become effective as soon as it was
accepted by the appointing authority. No rule
has been framed under Article 309 of the
Constitution which enacts that for an order
accepting the resignation to be effective, it
must be communicated to the person
submitting his resignation.
5. Our attention was invited to a judgment of
this Court in State of Punjab Vrs. Amar Singh
Harika, AIR 1966 SC 1313 in which it was
held that an order of dismissal passed by an
authority and kept on its file without
communicating it to the officer concerned or
otherwise publishing it did not take effect as
from the date on which the order was
actually written out by the said authority;
such an order could only be effective after it
was communicated to the officer concerned
or was otherwise published. The principle of
that case has no application here.
W.P.(C) No.31236 of 2023 Page 55 of 107
Termination of employment by order passed
by the Government does not become effective
until the order is intimated to the employee.
But where a public servant has invited by his
letter of resignation determination of his
employment, his services normally stand
terminated from the date on which the letter
of resignation is accepted by the appropriate
authority and in the absence of any law or
rule governing the conditions of his service to
the contrary, it will not be open to the public
servant to withdraw his resignation after it is
accepted by the appropriate authority. Till
the resignation is accepted by the
appropriate authority in consonance with the
rules governing the acceptance, the public
servant concerned has locus poenitentiae but
not thereafter. Undue delay in intimating to
the public servant concerned the action taken
on the letter of resignation may justify an
inference that resignation has not been
accepted. In the present case the resignation
was accepted within a short time after it was
received by the Government of India.
Apparently the State of Rajasthan did not
immediately implement the order, and relieve
the appellant of his duties, but the appellant
cannot profit by the delay in intimating
acceptance or in relieving him of his duties.‟
11.3. In Union of India Vrs. Gopal Chandra Misra,
(1978) 2 SCC 301 the issue for consideration was
whether a High Court Judge, who had by letter in
his own handwriting sent to the President
W.P.(C) No.31236 of 2023 Page 56 of 107
intimated his intention to resign the office with
effect from a future date would be competent to
withdraw the resignation before the date had
reached? The decisions in Jai Ram Vrs. Union of
India, AIR 1954 SC 584 and Raj Kumar Vrs. Union
of India, (1968) 3 SCR 857 = AIR 1969 SC 180
were considered and while dealing with the scope
of clause (a) of the proviso to Article 217 of the
Constitution, the Constitution Bench of this Court
stated : Union of India Vrs. Gopal Chandra Misra,
(1978) 2 SCC 301, SCC pp. 309-10, paras 20 &
22)
„20. Here, in this case, we have to focus attention
on clause (a) of the proviso. In order to
terminate his tenure under this clause, the
Judge must do three volitional things :
Firstly, he should execute a “writing under
his hand”. Secondly, the writing should be
“addressed to the President”. Thirdly, by that
writing he should “resign his office”. If any of
these things is not done, or the performance
of any of them is not complete, clause (a) will
not operate to cut short or terminate the
tenure of his office.
***
22. It may be observed that the entire edifice of
this reasoning is founded on the supposition
that the “Judge” had completely performed
everything which he was required to do
under proviso (a) to Article 217(1). We have
seen that to enable a Judge to terminate his
term of office by his own unilateral act, heW.P.(C) No.31236 of 2023 Page 57 of 107
has to perform three things. In the instant
case, there can be no dispute about the
performance of the first two, namely : (i) he
wrote a letter under his hand, (ii) addressed
to the President. Thus, the first two pillars of
the ratiocinative edifice raised by the High
Court rest on sound foundations. But, is the
same true about the third, which
indisputably is the chief prop of that edifice?
Is it a completed act of resignation within the
contemplation of proviso (a)? This is the
primary question that calls for an answer. If
the answer to this question is found in the
affirmative, the appeals must fail. If it be in
the negative, the foundation for the reasoning
of the High Court will fail and the appeals
succeed.‟
11.4. The tenor and the effect of resignation were then
considered in para 28 and it was held that the
letter in question was merely an intimation or
notice to resign the office on a future date and it
was open to withdraw the resignation before
the arrival of the indicated future date. The
observations were : (Union of India Vrs. Gopal
Chandra Misra, (1978) 2 SCC 301, SCC p. 311,
para 28)
„28. The substantive body of this letter (which
has been extracted in full in a foregoing part
of this judgment) is comprised of three
sentences only. In the first sentence, it is
stated:
W.P.(C) No.31236 of 2023 Page 58 of 107
„I beg to resign my office as Judge, High
Court of Judicature at Allahabad.‟Had this sentence stood alone, or been the
only content of this letter, it would operate as
a complete resignation in praesenti, involving
immediate relinquishment of the office and
termination of his tenure as Judge. But this
is not so. The first sentence is immediately
followed by two more, which read:
„I will be on leave till 31.07.1977. My
resignation shall be effective on 01.08.1977.‟The first sentence cannot be divorced from
the context of the other two sentences and
construed in isolation. It has to be read along
with the succeeding two which qualify it.
Construed as a whole according to its tenor,
the letter dated 07.05.1977, is merely an
intimation or notice of the writer’s intention to
resign his office as Judge, on a future date
viz. 01.08.1977. For the sake of convenience,
we might call this communication as a
prospective or potential resignation, but
before the arrival of the indicated future
date it was certainly not a complete and
operative resignation because, by itself,
it did not and could not, sever the writer
from the office of the Judge, or
terminate his tenure as such.‟11.5. The Court went on to state the principles as:
(Union of India Vrs. Gopal Chandra Misra, (1978)
W.P.(C) No.31236 of 2023 Page 59 of 107
2 SCC 301, SCC pp. 314-15 & 317, paras 41 &
50)
„41. The general principle that emerges from
the foregoing conspectus, is that in the
absence of anything to the contrary in
the provisions governing the terms and
conditions of the office/post, an
intimation in writing sent to the
competent authority by the incumbent,
of his intention or proposal to resign his
office/post from a future specified date
can be withdrawn by him at any time
before it becomes effective i.e. before it
effects termination of the tenure of the
office/post or the employment.
***
50. It will bear repetition that the general
principle is that in the absence of a legal,
contractual or constitutional bar, a
“prospective” resignation can be withdrawn
at any time before it becomes effective, and it
becomes effective when it operates to
terminate the employment or the office-tenure
of the resigner. This general rule is equally
applicable to government servants and
constitutional functionaries. In the case of a
government servant/or functionary/who
cannot, under the conditions of his service/or
office, by his own unilateral act of tendering
resignation, give up his service/or office,
normally, the tender of resignation becomes
effective and his service/or office-tenure
W.P.(C) No.31236 of 2023 Page 60 of 107
terminated, when it is accepted by the
competent authority. In the case of a Judge
of a High Court, who is a constitutional
functionary and under proviso (a) to Article
217(1) has a unilateral right or privilege to
resign his office, his resignation becomes
effective and tenure terminated on the date
from which he, of his own volition, chooses to
quit office. If in terms of the writing under his
hand addressed to the President, he resigns
in praesenti, the resignation terminates his
office-tenure forthwith, and cannot therefore,
be withdrawn or revoked thereafter. But, if
he by such writing, chooses to resign
from a future date the act of resigning
office is not complete because it does not
terminate his tenure before such date
and the Judge can at any time before
the arrival of that prospective date on
which it was intended to be effective,
withdraw it, because the Constitution
does not bar such withdrawal.‟
11.6. As regards the applicability of the rule in Jai Ram
Vrs. Union of India, AIR 1954 SC 584, it was
stated: (Union of India Vrs. Gopal Chandra Misra,
(1978) 2 SCC 301, SCC p. 317, para 49)
„49. In our opinion, none of the aforesaid reasons
given by the High Court for getting out of the
ratio of Jai Ram Vrs. Union of India, AIR
1954 SC 584 is valid. Firstly, it was not a
“casual” enunciation. It was necessary to
dispose of effectually and completely the
second point that had been canvassed on
W.P.(C) No.31236 of 2023 Page 61 of 107
behalf of Jai Ram Vrs. Union of India, AIR
1954 SC 584. Moreover, the same principle
was reiterated pointedly in 1968 in Raj
Kumar Vrs. Union of India, (1968) 3 SCR 857
= AIR 1969 SC 180. Secondly, a proposal to
retire from service/office and a tender to
resign office from a future date for the
purpose of the point under discussion, stand
on the same footing. Thirdly, the distinction
between a case where the resignation is
required to be accepted and the one where
no acceptance is required, makes no
difference to the applicability of the rule in
Jai Ram Vrs. Union of India, AIR 1954 SC
584.‟
11.7. In Balram Gupta Vrs. Union of India, 1987 Supp
SCC 228 the officer concerned was an accountant
in the Photo Division of the Ministry of Information
and Broadcasting. While holding that the matter
was covered by the decisions of this Court in Raj
Kumar Vrs. Union of India, (1968) 3 SCR 857 =
AIR 1969 SC 180 and Union of India Vrs. Gopal
Chandra Misra, (1978) 2 SCC 301, this Court
considered the relevant guidelines and observed:
(Balram Gupta Vrs. Union of India, 1987 Supp
SCC 228, SCC pp. 235-36, para 12)„12. In this case the guidelines are that ordinarily
permission should not be granted unless the
officer concerned is in a position to show that
there has been a material change in the
circumstances in consideration of which the
notice was originally given. In the facts of the
instant case such indication has been given.
W.P.(C) No.31236 of 2023 Page 62 of 107
The appellant has stated that on the
persistent and personal requests of the staff
members he had dropped the idea of seeking
voluntary retirement. We do not see how this
could not be a good and valid reason. It is
true that he was resigning and in the notice
for resignation he had not given any reason
except to state that he sought voluntary
retirement. We see nothing wrong in this. In
the modern age we should not put embargo
upon people’s choice or freedom. If, however,
the administration had made arrangements
acting on his resignation or letter of
retirement to make other employee available
for his job, that would be another matter but
the appellant‟s offer to retire and withdrawal
of the same happened in such quick
succession that it cannot be said that any
administrative set-up or arrangement was
affected. The administration has now taken
a long time by its own attitude to
communicate the matter. For this the
respondent is to blame and not the
appellant.‟***
11.9. In Punjab National Bank Vrs. P.K. Mittal, 1989
Supp (2) SCC 175 a permanent officer in the bank
sent a letter of resignation on 21.01.1986 in terms
of Regulation 20 of PNB (Officers) Service
Regulation, 1979, which was to become effective
on 30.06.1986. By communication dated
07.02.1986, he was informed that his resignation
was accepted with immediate effect. The
W.P.(C) No.31236 of 2023 Page 63 of 107
resignation was withdrawn by the officer on
15.04.1986. The issue therefore arose in the
context of said Regulation 20, whether the officer
could withdraw the resignation. Regulation 20
was as under: ***11.10. The submission that clause (2) of Regulation
20 and its proviso were intended only to
safeguard the bank’s interest and as such the
bank could accept the resignation before the date
when it was to come into effect was rejected by
this Court in following terms: (Punjab National
Bank Vrs. P.K. Mittal, 1989 Supp (2) SCC 175,
SCC pp. 179-80, paras 7-8)„7. Dr Anand Prakash emphasises that as
clause (2) and its proviso are intended only
to safeguard the bank’s interests they should
be interpreted on the lines suggested by him.
We are of the opinion that clause (2) of the
regulation and its proviso are intended not
only for the protection of the bank but also
for the benefit of the employee. It is common
knowledge that a person proposing to resign
often wavers in this decision and even in a
case where he has taken a firm decision to
resign, he may not be ready to go out
immediately. In most cases he would need a
period of adjustment and hence like to defer
the actual date of relief from duties for a few
months for various personal reasons. Equally
an employer may like to have time to make
some alternative arrangement before
relieving the resigning employee. Clause (2)
is carefully worded keeping both these
W.P.(C) No.31236 of 2023 Page 64 of 107
requirements in mind. It gives the employee a
period of adjustment and rethinking. It also
enables the bank to have some time to
arrange its affairs, with the liberty, in an
appropriate case, to accept the resignation of
an employee even without the requisite
notice if he so desires it. The proviso in our
opinion should not be interpreted as enabling
a bank to thrust a resignation on an
employee with effect from a date different
from the one on which he can make his
resignation effective under the terms of the
regulation. We, therefore, agree with the High
Court [Pradeep Kumar Mittal Vrs. Punjab
National Bank, 1986 SCC OnLine Del 162]
that in the present case the resignation of the
employee could have become effective only
on or about 21.04.1986 or on 30.06.1986
and that the bank could not have “accepted”
that resignation on any earlier date. The
letter dated 07.02.1986 was, therefore,
without jurisdiction.
8. The result of the above interpretation is that
the employee continued to be in service till
21.04.1986 or 30.06.1986, on which date his
services would have come normally to an
end in terms of his letter dated 21.01.1986.
But, by that time, he had exercised his right
to withdraw the resignation. Since the
withdrawal letter was written before the
resignation became effective, the resignation
stands withdrawn, with the result that the
respondent continues to be in the service of
W.P.(C) No.31236 of 2023 Page 65 of 107
the bank. It is true that there is no specific
provision in the regulations permitting the
employee to withdraw the resignation. It is,
however, not necessary that there should be
any such specific rule. Until the resignation
becomes effective on the terms of the letter
read with Regulation 20, it is open to the
employee, on general principles, to withdraw
his letter of resignation. That is why, in some
cases of public services, this right of
withdrawal is also made subject to the
permission of the employer. There is no such
clause here. It is not necessary to labour this
point further as it is well settled by the
earlier decisions of this Court in Raj Kumar
Vrs. Union of India, (1968) 3 SCR 857 = AIR
1969 SC 180, Union of India Vrs. Gopal
Chandra Misra, (1978) 2 SCC 301 and
Balram Gupta Vrs. Union of India, 1987
Supp SCC 228.‟
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 Union of India
Vrs. Gopal Chandra Misra, (1978) 2 SCC 301, “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
W.P.(C) No.31236 of 2023 Page 66 of 107
it becomes effective”. Further, as laid down in
Balram Gupta Vrs. Union of India, 1987 Supp SCC
228, „If, however, the administration had made
arrangements acting on his resignation or letter of
retirement to make other employee available for
his job, that would be another matter.‟
***
15. In terms of the provisions of the CAR, the terms
and conditions of appointment in the instant case
specifically stated that the respondent would
give six months‟ notice in case she desired to
leave the services of the appellant.
16. The underlying principle and the basic idea
behind stipulation of the mandatory notice
period is public interest. It is not the interest of
the employee which is intended to be safeguarded
but the public interest which is to be subserved. It
seeks to ensure that there would not be any last
minute cancellation of flights causing enormous
inconvenience to the travellers. It is for this reason
that the pilot concerned is required to serve till the
expiry of the notice period. The notice period may
stand curtailed if NOC is given to the pilot
concerned and the resignation is accepted even
before the expiring of the notice period. It may, in a
given case, be possible that the trained manpower
to replace the pilot, who had tendered resignation,
could be made available before the expiry of such
notice period, in which case the employer is given
a choice under Clause 3.7 of the CAR. Even in
such eventuality, the guiding idea or parameter is
public interest.”
W.P.(C) No.31236 of 2023 Page 67 of 107
13.3. It may deserve to have regard to the following
observations of the Hon‟ble Supreme Court of India in
the case of Indian Bank Vrs. Mahaveer Khariwal,
(2021) 1 SCR 144:
“8. It is not in dispute that in the present case the
employee submitted the voluntary retirement
application on 21.01.2004. In the application
itself, the employee requested for waiver of three
months‟ notice and requested to deduct the salary
amount of the notice period from out of the
amounts payable to him by the employer on
retirement. It is not in dispute and it cannot be
disputed that the notice of voluntary retirement
requires acceptance by the appointing authority.
However, as per proviso to Sub-Regulation 2 of
Regulation 29, in case the appointing authority
does not refuse to grant the permission for
retirement before the expiry of the period specified
in the notice, the retirement shall become effective
from the date of expiry of the said notice period. In
the present case, on the 90th day vide
communication dated 20.04.2004 the application
of the employee for voluntary retirement was
rejected without assigning any specific reasons
and by observing that the employee is not eligible
for voluntary retirement under Pension
Regulations, 1995. The said communication was
sent to the employee on the very date, i.e.,
20.04.2004, however the same was received by
the employee on 23.04.2004. The learned Single
Judge dismissed the writ petition so far as
challenge to the communication dated 20.04.2004W.P.(C) No.31236 of 2023 Page 68 of 107
is concerned. However, on appeal, by the
impugned judgment and order, the Division Bench
has set aside the communication dated
20.04.2004 by which the request of the employee
for voluntary retirement from the service of the
employer came to be rejected. Therefore, the short
question which is posed for the consideration
before this Court is, whether the rejection of the
request of the employee for voluntary retirement
vide communication dated 20.04.2004 was legal
and in consonance with Regulation 29 of the
Pension Regulations, 1995 or not.
***
10. On a fair reading of Regulation 29, it emerges that
an employee is entitled to apply for voluntary
retirement after he has completed 20 years of
qualifying service. He can apply for voluntary
retirement by giving notice of not less than three
months in writing to the appointing authority
(Regulation 29(1)). However, as per proviso to Sub-
Regulation (1) of Regulation 29, Sub-Regulation (1)
of Regulation 29 shall not apply to an employee
who is on deputation or on study leave on abroad
unless after having been transferred or having
returned to India he has resumed charge of the
post in India and has served for a period of not
less than one year. The said proviso shall be dealt
with and considered hereinbelow. It also appears
that as per Sub-Regulation (2) of Regulation 29,
the notice of voluntary retirement given under Sub-
Regulation (1) shall require acceptance by the
appointing authority. However, as per the proviso
to Subregulation (2), the appointing authority has
W.P.(C) No.31236 of 2023 Page 69 of 107
to take a decision before the expiry of the period
specified in the notice. It provides that where the
appointing authority does not refuse to grant the
permission for retirement before the expiry of the
period specified in the notice, there shall be
deemed acceptance of the voluntary retirement
application and the retirement shall become
effective from the date of expiry of the period
mentioned in the notice. However, at the same
time, as per Sub-Regulation 3(a), an employee
may make a request in writing to the appointing
authority for waiver of the three months‟ notice
and may make a request to accept the notice of
voluntary retirement of less than three months
giving reasons thereof. Sub-Regulation 3(b)
provides that on receipt of a request for waiver of
three months‟ notice as per Sub-Regulation 3(a),
the appointing authority may, subject to the
provisions of Sub-Regulation (2), 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
employee shall not apply for commutation of a part
of the pension before the expiry of the notice of
three months. In the present case, the application
of the employee submitting the voluntary
retirement application with a request for
curtailment of notice of three months was
absolutely in consonance with Regulation 29. The
request made by the employee for curtailment of
the period of notice of three months was requiredW.P.(C) No.31236 of 2023 Page 70 of 107
to be considered by the appointing authority on
merits and only in a case where it is found that
the curtailment of the period of notice may cause
any administrative inconvenience, the request for
curtailment of the period of three months‟ notice
can be rejected. On considering the communication
dated 20.04.2004 rejecting the application of the
employee for voluntary retirement, it does not
reflect any compliance of Sub-Regulation 3(b) of
Regulation 29. As such, no reasons whatsoever
have been assigned/given except stating that the
request is not in accordance with Pension
Regulations, 1995. Even otherwise, it is required
to be noted that even the communication dated
20.04.2004 was on the last day of the third
month, i.e., 90th day from the date of submitting
the voluntary retirement application. Therefore,
there was no reason to reject the prayer of
curtailment of the period of notice considering the
grounds mention in Sub-Regulation 3(b) of
Regulation 29. Be that as it may, the rejection of
the application for voluntary retirement was not on
the ground that notice of three months is not given.
The request made by the employee for curtailment
of notice of three months was also not considered
on merits. Therefore, as rightly held by the
Division Bench of the High Court, the application
for voluntary retirement was absolutely in
consonance with Regulation 29 and that the
rejection was bad in law and contrary to
Regulation 29. The Division Bench of the High
Court is absolutely justified in quashing and
setting aside the communication datedW.P.(C) No.31236 of 2023 Page 71 of 107
20.04.2004. We are in complete agreement with
the view taken by the Division Bench.
***
12. Now so far as the submission on behalf of the
employer that the acceptance or non-acceptance of
the voluntary retirement application is required to
be taken before the expiry of the period specified
in the notice, i.e., in the present case three months
and the same was taken on the last date of the
three months‟ period and date of receipt of the
decision/communication is not material, it is true
that in the present case the decision was taken
before the expiry of the period specified in the
notice, i.e., on or before three months (last day of
the third month), however, as observed
hereinabove, the rejection of the application for
voluntary retirement itself is found to be illegal
and bad in law. Therefore, the aforesaid shall not
affect the ultimate conclusion reached by the
Division Bench of the High Court. As observed
hereinabove, communication dated 20.04.2004
rejecting the voluntary retirement application was
bad in law and contrary to Regulation 29.
Therefore, the employee shall be entitled to all
retiral benefits on the basis of his voluntary
retirement. Once, it is held that he is voluntary
retired as per his application dated 21.01.2004
and the rejection of the application of voluntary
retirement is held to be bad in law, all other
subsequent proceedings of departmental enquiry
will be null and void and shall be non est, as after
the voluntary retirement, there shall not be an
employer-employee relationship.”
W.P.(C) No.31236 of 2023 Page 72 of 107
13.4. Observation of a Division Bench of this Court in M.S.P.
Dora Vrs. Orissa State Road Transport, 2006 SCC
OnLine Ori 73 = 101 (2006) CLT 281 = 2006 (I) OLR 240
may be apt to be referred to:
“7. Admittedly, Government on 21.9.2001 floated the
Model Voluntary Retirement Scheme and on
10.10.2001 the petitioner submitted his offer to be
included in the Scheme and take voluntary
retirement from the services of the Corporation.
The petitioner changed his mind and took a
decision and on 20.12.2001 he submitted an
application for withdrawal of option for
voluntary retirement as there was no
communication to him from the opposite
parties within 30 days of his submission of
application. On 7.3.2002 the O.P. No. 2 rejected
petitioner‟s request for withdrawal of his
application for voluntary retirement without
assigning any reason. On 19.3.2002 the petitioner
submitted representation giving all details therein
and making a prayer to allow withdrawal of his
voluntary retirement application, but no
communication in that regard was received from
the opposite parties. The petitioner was relieved
from service with effect from 25.7.2002.
***
14. As we have already indicated, it is not in dispute
that the petitioner submitted his application for
withdrawal of the voluntary retirement offer on
20.12.2001 and by that date there was no
communication to the petitioner by the opposite
W.P.(C) No.31236 of 2023 Page 73 of 107
parties that his application for voluntary
retirement had already been accepted. Even at
the time of communicating, the order of
rejection of his application for withdrawal of
his offer for voluntary retirement vide
Annexure-4, it was not communicated that
his proposal for voluntary retirement had
already been accepted. In this connection, there
is a clear mention in the writ petition that in
Annexure-4 the rejection order, no reason
whatsoever has been assigned. Be that as it
may, as per the stipulation in the Clause 3.2
of the Scheme no communication had been
made to the petitioner by the opposite parties
regarding acceptance/rejection of his V.R.
application within 30 days or even
thereafter. As we find from the record, he was
communicated with the order of his relief vide
Annexure-7, the memo No. 19817 dated 25.7.2002
which he received on 26.7.2002. It is an admitted
position that the petitioner on 20.12.2001
submitted his application for withdrawal of his
voluntary retirement proposal and he had again
after rejection of his aforementioned application
made representation for withdrawal of his offer for
voluntary retirement. It is the stand of the opposite
parties 1 to 3 in their counter affidavit that the
application of the petitioner dated 10.10.2001 had
already been accepted on 19.10.2001 and since
by the date of acceptance no application for
withdrawal was pending and the same was
received, later on, it was rejected. A stand has
been taken in the counter affidavit and it was also
urged before us that inference can be drawn that
W.P.(C) No.31236 of 2023 Page 74 of 107
the petitioner had knowledge of the acceptance of
his voluntary retirement proposal on the basis of
his application as he was working as Accounts
Officer in the Account Section of the Corporate
Office and the Account Section was communicated
to calculate the entitlements of the employees
including the petitioner himself, individual
communication to the employee concerned was not
necessary. He also went to the extent of arguing
that this communication for calculation of the
entitlement was sufficient compliance of clause 3.2
of the Scheme which stipulates that the decision of
the competent authority regarding acceptance or
rejection should be communicated to the employee
concerned within 30 days of the submission of the
application. We fail to understand as to how
such a proposition is being advanced on the
face of specific stipulation in the aforesaid
clause that the decision of the competent
authority regarding acceptance or rejection
should be communicated to the employee
concerned. Learned counsel for the opposite
parties, however, had to concede that there was
no individual communication made to the
petitioner regarding the acceptance of his
voluntary retirement offer within 30 days of his
making application and he was individually
intimated only on 25.7.2002 that he was to be
relieved on 25.7.2002/26.7.2002 on acceptance of
his voluntary retirement proposal. There is no
dispute over the fact that within the period from
his filing of application for taking voluntary
retirement on 10.10.2001 to 25.07.2002 the date
of his relief, petitioner had made two
W.P.(C) No.31236 of 2023 Page 75 of 107
representations to the opposite parties for
withdrawal of his voluntary retirement
application. It is also not in dispute that his first
application dated 20.12.2001 was turned down
without assigning any reason and the other
application was not at all heeded to.
***
16. We have perused the scheme and have extracted
the relevant clauses and we do not find any
condition that once an option for voluntary
retirement is exercised by an employee and the
same is accepted by the employer, the employee is
not entitled to withdraw from voluntary retirement.
Rather clause 6.1 stipulates that the application
for VRS cannot be withdrawn after its acceptance
is communicated to the employee concerned. We
have already found that at no point of time the
petitioner was communicated about the
acceptance of his voluntary retirement offer, by the
O.Ps. it is only on issuance of office memo at
Annexure-7 dated 25.07.2002, the petitioner was
intimated that he was allowed to retire from
service with effect from 25.07.2002 under MVRS.
It is now amply clear that prior to 25.07.2002
there was no communication to the petitioner that
his voluntary retirement offer was already
accepted by the authority. Even in the rejection
order of his application for withdrawal it was not
indicated that since his offer had already been
accepted, the petition was rejected.
17. The short and only question before us to be
decided now is what is the effective date in this
W.P.(C) No.31236 of 2023 Page 76 of 107
case at hand, before which the applicant could
have withdrawn his offer of voluntary retirement
under the scheme.
***
22. In the case of Nand Keshwar Prasad Vrs. Indian
Farmers Fertilisers Co-operative Ltd., (1998) 5
SCC 461 = AIR 1999 SC 558, the Court reiterated
that it is open to the employee concerned to
withdraw letter of resignation before the date
indicated in the notice of voluntary retirement. It
has been observed therein–
„*** it appears to us that the law is well settled by
this Court in a number of decisions that unless
controlled by condition of service or the
statutory provision the retirement mentioned
in the letter of the resignation must take
effect from the date mentioned therein and
such date cannot be advanced by accepting
the resignation from an earlier date when
the concerned employee did not intend to
retire from such earlier date.‟
23. In Power Finance Corporation Ltd. Vrs. Pramod
Kumar Bhatia, (1997) 4 SCC 280 the Court
observed as follows:
„It is now settled legal position that unless the
employee is relieved of the duty after acceptance
of the offer of voluntary retirement or resignation,
jural relationship of the employee and the
employer does not come to an end.‟W.P.(C) No.31236 of 2023 Page 77 of 107
24. In Srikantha S.M. Vrs. Bharath Earth Movers Ltd.,
JT (2005) 12 SC 465 = (2005) Supp.4 SCR 156 the
Court held thus:
„It is now settled legal position that unless the
employee is relieved of the duty after acceptance
of the offer of voluntary retirement or resignation,
jural relationship of the Employee and the
employer does not come to an end.‟
25. Coming to the case in hand and looking to the
factual position and the law settled by the Hon‟ble
Apex Court we have absolutely no doubt that there
was no communication to the petitioner about the
acceptance of his voluntary retirement offer under
the Scheme as has been stipulated in clause 6.1.
thereof. The petitioner made representation for
withdrawal from the Scheme after changing his
mind and the same was rejected without
assigning any reason whatsoever. Thereafter, he
made a second representation which was not
heeded to. He continued in the service of the
opposite parties till 25.07.2002 when a
communication regarding his retirement under
voluntary retirement Scheme was made over to
him and he made over charge of his office on the
said date. In this fact situation, the jural
relationship between the petitioner and the
opposite parties continued up to 25.07.2002 and it
is not in dispute that he was paid salary and
other allowances as a regular employee of the
opposite parties up to that date. In view of the
legal position settled by the Hon‟ble Apex
Court which we have dealt with extensively
in the preceding paragraphs, the petitioner
W.P.(C) No.31236 of 2023 Page 78 of 107
had every right to withdraw the application
for voluntary retirement any time before the
jural relationship between him and his
employer got severed and the opposite
parties could not have rejected his
withdrawal application petitioner which we
hold to be illegal.
***
27. Before we part with and proceed to pass the final
order; we would like to note here that a person
proposing to resign often wavers in his decision
and even in a case where he has taken a firm
decision to resign, he may not be ready to go out
on change of his mind as in the modern and
uncertain age it is very difficult to arrange one’s
future with any amount of certainty; a certain
amount of flexibility is required, and if such
flexibility does not jeopardize government or
administration, administration should be graceful
enough to respond and acknowledge the flexibility
of human mind and attitude and allow the person
concerned to withdraw his letter of retirement. As
a model employer, Government or Government run
Corporation, must conduct themselves with high
probity and candour with its employees.”
13.5. The Kerala High Court in consideration of voluntary
retirement scheme vis-à-vis undue haste shown by the
employer in the case of Faziludeen Vrs. Union of India,
2023 SCC OnLine Ker 6709 (Division Bench) held as
follows:
W.P.(C) No.31236 of 2023 Page 79 of 107
“11. We profitably recall that going by the applicant’s
claim, he tendered Annexure-A2 request seeking
to withdraw Annexure-A1 application for voluntary
retirement on the very next day of his application,
that is to say, 08.10.2021. This, of course, was
claimed to be tendered by hand, which was
allegedly refused by the 3rd respondent. The
applicant sent his withdrawal request by
registered post on 11.10.2021, vide Annexure-A2.
This was received by the 2nd respondent
admittedly on 12.10.2021, besides being
established from Annexures-A3 and A4 postal
receipt and acknowledgment card. We notice that
only five days have expired by that time, reckoned
from the date of Annexure-A1 application,
07.10.2021, as against a statutory notice period of
three months. True that there was a request to
waive the notice period. However, it is
axiomatic that the respondents/authorities
have acted with undue haste, without
arriving at a proper satisfaction required as
per statute, to waive the notice period of
three months. There is nothing on record
indicating that the application for a notice
period less than three months was
considered on merits. Nor is there anything to
show that the curtailment of the notice period will
not cause any administrative inconvenience. On
the top of all, if a request for withdrawal of
voluntary retirement is made within five days, as
enabled by the proviso to Rule 48-A(4) of the
Rules, we cannot justify the refusal of such a
request on any count/premise, whatsoever. WeW.P.(C) No.31236 of 2023 Page 80 of 107
are fortified in our view by two pronouncements of
the Apex Court in(1) J.N. Srivastava Vrs. Union of India, (1998) 9
SCC 559 and(2) Balram Gupta Vrs. Union of India [1987
Supp SCC 228.
The relevant findings in J.N. Srivastava are
extracted here below:
„It is now well settled that even if the voluntary
retirement notice is moved by an employee and
gets accepted by the authority within the time
fixed, before the date of retirement is reached, the
employee has locus poenitentiae to withdraw the
proposal for voluntary retirement. The said view
has been taken by a Bench of this Court in the
case of Balram Gupta Vrs. Union of India.‟
12. We also notice that the very purpose of
affording a notice period in the statute itself
is to enable the applicant to take a well
considered decision about his career and
reiterate his decision to take voluntary
retirement, so that the same is not actuated
by any extraneous feelings or emotions, at
the spur of a moment. That precisely should
be the reason for an enabling provision to
withdraw a request for voluntary retirement,
before the retirement is to take effect in
accord with the statute. In the given facts, we
are not in the least hesitant to observe that the
purpose of notice period is frustrated. We are of
the view that the respondents, being
W.P.(C) No.31236 of 2023 Page 81 of 107
representatives of an entity under the Union
Government, ought to have acted with all fairness,
as a model employer, guided not merely by the
letter of the Rules but by its spirit as well, with a
topping of compassion and humane
considerations, wherever it deserves.”
13.6. Given the above perspective, there can be no
ambiguity in mind to hold that the opposite party No.1
could not have accepted the application/notice dated
03.07.2023 prior to 31.10.2023, i.e., the date specified
by the petitioner for voluntary retirement.
14. The impugned Order dated 11.08.2023 of the MSME
Department (vide Annexure-6A) and the Order dated
23.09.2023 of the Director, DEPM (Annexure-6) as
also rejection of Grievance Petition which is
communicated vide Letter dated 29.09.2023 does not
reveal the reason for the conclusion on facts nor does
any justification cited for the action by exercising
power conferred under Rule 42 of the Pension Rules,
1992. However, by way of counter affidavit the
opposite parties have sought to fortify the action by
supplying fresh reasons (though vague).
14.1. Oft-quoted dicta noticed in Mohinder Singh Gill Vrs.
Chief Election Commissioner, (1978) 1 SCC 405, as
pressed into service by Sri Sambit Rath, learned
Advocate arguing for the petitioner, deserves mention.
W.P.(C) No.31236 of 2023 Page 82 of 107
In Sical Logistics Ltd. Vrs. Mahanadi Coalfields Ltd.,
2017 (II) ILR-CUT 1035, following the ratio propounded
in the said case by the Hon‟ble Supreme Court, this
Court observed as follows:
“9. It is well settled principle of law laid down by the
Apex Court time and again that the authority
should pass reasoned order. Reasons being a
necessary concomitant to passing an order,
the authority can thus discharge its duty in
a meaningful manner either by furnishing
the same expressly or by necessary reference.
***
11. It is well-settled principle of law laid down by the
Apex Court in Mohinder Singh Gill and another
Vrs. The Chief Election Commissioner, New Delhi
and others, AIR 1978 SC 851 that:
„When a statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise.
Otherwise an order bad in the beginning may by
the time it comes to Court on account of a
challenge, get validated by additional grounds
later brought out.‟In Commissioner of Police, Bombay Vrs.
Gordhandas Bhanji, AIR 1952 SC 16, the Apex
Court held as follows:
W.P.(C) No.31236 of 2023 Page 83 of 107
„Public orders publicly made, in exercise of a
statutory authority cannot be construed in
the light of explanations subsequently given
by the officer making the order of what he
meant, or of what was in his mind, or what
he intended to do. Public orders made by public
authorities are meant to have public effect and are
intended to affect the acting and conduct of those
to whom they are addressed and must be
construed objectively with reference to the
language used in the order itself. Orders are not
like old wine becoming better as they grow older.‟Similar view has also been taken in Bhikhubhai
Vithalbhai Patel and others Vrs. State of Gujarat
and another, (2008) 4 SCC 144 as well as in M/s.
Shree Ganesh Construction Vrs. State of Orissa,
2016 (II) OLR 237 = 2016 (II) ILR-CUT 237.
In the case of State of Punjab Vrs. Bandeep Singh,
(2016) 1 SCC 724 the Apex Court held that the
validity of administrative orders/decisions/
executive instructions/orders/circulars must
be judged by reasons stated in decision or
order itself. Subsequent explanations or reasons
cannot be accepted to sustain decision or order.”
14.2. In Shiv Prasad Sahu Vrs. State of Orissa, 2008 SCC
OnLine Ori 266 = 106 (2008) CLT 672, a Division Bench
of this Court laid down that,
“To deal with the third question it is necessary to refer
the grounds of appeal filed before the learned Tribunal
by the Revenue. The ground of appeal which has been
annexed to the petition as annexure 4 does not reveal
W.P.(C) No.31236 of 2023 Page 84 of 107
that any specific ground has been taken with regard to
addition of 10 per cent towards driage and wastage
made by the Assessing Officer and deleted by the first
Appellate Authority. By a cryptic order the Tribunal
has restored the order of assessment. The order
does not reveal whether any argument has been
advanced by the Revenue against deletion of addition
10 per cent of purchased quantity of mohua flowers by
the first Appellate Authority. Needless to say that the
Tribunal is under a duty to decide all the questions of
facts and law raised in the appeal before it. However,
Tribunal on its own cannot make out a new case
particularly when no such point was taken in ground of
appeal and argued before it. It is not possible for the
court, to decide an issue, not raised/agitated by the
authority for the reason that other party did not have
opportunity to meet it and such a course would violate
the principles of natural justice. (vide New Delhi
Municipal Committee Vrs. State of Punjab AIR 1997 SC
2847). Similarly, in V.K. Majotra Vrs. Union of India
(2003) 8 SCC 40, the apex Court held as under:
„*** The writ courts would be well advised to decide the
petitions on the points raised in the petition and if in a
rare case, keeping in view the facts and circumstances
of the case, any additional points are to be raised then
the concerned and affected parties should be put to
notice on the additional points to satisfy the principles
of natural justice. Parties cannot be taken by surprise.”
14.3. Such being the requirement of quasi judicial decision
making process, with the factual discussions and
enunciation of law, this Court may proceed to hold
that laconic Orders in Annexures-6 and 6A cannot
W.P.(C) No.31236 of 2023 Page 85 of 107
withstand scrutiny in law. The Orders bereft of reason
is untenable in the eye of law.
14.4. The Hon‟ble Supreme Court of India for failure of the
Authority to ascribe reasons, in the matter of Steel
Authority of India Limited Vrs. Sales Tax Officer, (2008)
10 SCR 655 = 2008 INSC 799 made the following
observation:
“12. A bare reading of the order shows complete non-
application of mind. As rightly pointed out by
learned counsel for the appellant, this is not the
way a statutory appeal is to be disposed of.
Various important questions of law were raised.
Unfortunately, even they were not dealt by the
first appellate authority.
13. Reason is the heartbeat of every conclusion. It
introduces clarity in an order and without the
same it becomes lifeless. [See Raj Kishore Jha Vrs.
State of Bihar, (2003) 11 SCC 519].
14. Even in respect of administrative orders Lord
Denning, M.R. in Breen Vrs. Amalgamated Engg.
Union, (1971) 1 All ER 1148, observed:
„The giving of reasons is one of the fundamentals
of good administration.‟In Alexander Machinery (Dudley) Ltd. Vrs.
Crabtree 1974 ICR 120 (NIRC) it was observed:
“Failure to give reasons amounts to denial of
justice.” “Reasons are live links between theW.P.(C) No.31236 of 2023 Page 86 of 107
mind of the decision-taker to the controversy
in question and the decision or conclusion
arrived at.” Reasons substitute subjectivity by
objectivity. The emphasis on recording reasons is
that if the decision reveals the “inscrutable face of
the sphinx”, it can, by its silence, render it
virtually impossible for the courts to perform their
appellate function or exercise the power of judicial
review in adjudging the validity of the decision.
Right to reason is an indispensable part of a
sound judicial system; reasons at least sufficient
to indicate an application of mind to the matter
before court. Another rationale is that the affected
party can know why the decision has gone
against him. One of the salutary requirements of
natural justice is spelling out reasons for the order
made; in other words, a speaking-out. The
“inscrutable face of the sphinx” is ordinarily
incongruous with a judicial or quasi judicial
performance.”
14.5. Where the fact finding authority has acted without any
evidence or upon a view of the facts which could not
reasonably be entertained or the facts found were
such that no person acting judicially and properly
instructed as to the relevant law could have found, the
Court is entitled to interfere. See, Lalchand Bhagat
Ambica Ram Vrs. CIT, (1959) 37 ITR 288 (SC).
14.6. With reference to Omar Salay Mohamed Sait Vrs. CIT,
(1959) 37 ITR 151 (SC) the Hon‟ble Andhra Pradesh
High Court in Spectra Shares & Scrips Pvt. Ltd. Vrs.
W.P.(C) No.31236 of 2023 Page 87 of 107
CIT, (2013) 354 ITR 35 (AP), has been pleased to make
the observation that Income-tax Appellate Tribunal is
a fact finding Tribunal and if it arrives at its own
conclusions of fact after due consideration of the
evidence before it, the Court will not interfere. It is
necessary, however, that every fact for and against the
assessee must have been considered with due care
and the Tribunal must have given its finding in a
manner which would clearly indicate what were the
questions which arose for determination, what was the
evidence pro and contra in regard to each one of them
and what were the findings reached on the evidence on
record before it. The conclusions reached by the
Tribunal should not be coloured by any irrelevant
considerations or matters of prejudice and if there
are any circumstances which required to be
explained by the assessee, the assessee should be
given an opportunity of doing so. On no account
whatever should the Tribunal base its findings on
suspicions, conjectures or surmises nor should it act
on no evidence at all or on improper rejection of
material and relevant evidence or partly on evidence
and partly on suspicions, conjectures or surmises and
if it does anything of the sort, its findings, even though
on questions of fact, will be liable to be set aside by
the Court.
W.P.(C) No.31236 of 2023 Page 88 of 107
14.7. “Reason”, being heartbeat of every decision making
process, it has been restated in Nareshbhai Bhagubhai
Vrs. Union of India, (2019) 15 SCC 1 as follows:
“In Kranti Associates (P) Ltd. Vrs. Masood Ahmed Khan,
(2010) 9 SCC 496 this Court held that:
„12. The necessity of giving reason by a body or
authority in support of its decision came up for
consideration before this Court in several cases.
Initially this Court recognised a sort of
demarcation between administrative orders and
quasi judicial orders but with the passage of time
the distinction between the two got blurred and
thinned out and virtually reached a vanishing
point in the judgment of this Court in A.K. Kraipak
Vrs. Union of India, (1969) 2 SCC 262.
***
47. Summarising the above discussion, this Court
holds:
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if
such decisions affect anyone prejudicially.
(b) A quasi judicial authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
W.P.(C) No.31236 of 2023 Page 89 of 107
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of
judicial and quasi judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant
grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable a
component of a decision-making process as
observing principles of natural justice by judicial,
quasi judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by
superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions
based on relevant facts. This is virtually the
lifeblood of judicial decision-making justifying the
principle that reason is the soul of justice.
(i) Judicial or even quasi judicial opinions these days
can be as different as the Judges and authorities
who deliver them. All these decisions serve one
common purpose which is to demonstrate by
reason that the relevant factors have been
objectively considered. This is important for
sustaining the litigants‟ faith in the justice delivery
system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
W.P.(C) No.31236 of 2023 Page 90 of 107
(k) If a Judge or a quasi judicial authority is not
candid enough about his/her decision-making
process then it is impossible to know whether the
person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent,
clear and succinct. A pretence of reasons or
“rubber-stamp reasons” is not to be equated with
a valid decision-making process.
(m) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes
the Judges and decision-makers less prone to
errors but also makes them subject to broader
scrutiny. [See David Shapiro in “Defence of
Judicial Candor”, (1987) 100 Harvard Law Review
731-37].
(n) Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision-
making, the said requirement is now virtually a
component of human rights and was considered
part of Strasbourg Jurisprudence. See Ruiz Torija
Vrs. Spain, (1994) 19 EHRR 553 and Anya Vrs.
University of Oxford, 2001 EWCA Civ 405 (CA),
wherein the Court referred to Article 6 of the
European Convention of Human Rights which
requires, „adequate and intelligent reasons must
be given for judicial decisions‟.
(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
W.P.(C) No.31236 of 2023 Page 91 of 107
giving reasons for the decision is of the essence
and is virtually a part of “due process”.”
14.8. Conceding that giving reasons facilitates the detection
of errors of law, this Court in Santosh Kumar Paikray
Vrs. State of Odisha, 2016 (II) OLR 1131 (Ori) discussed
importance of assignment of reason in the following
lines:
“8. The meaning of the expression „reason‟ as stated
by Franz Schubert:
„reason is nothing but analysis of belief.‟
In Black‟s Law Dictionary, 5th Edition, „reason‟
has been defined as:
„a faculty of the mind by which it distinguishes
truth from falsehood, good from evil, and which
enables the possessor to deduce inferences from
facts and from propositions.‟In other words, reason means the faculty of
rational thought rather than some abstract
relationship between propositions and by this
faculty, it is meant the capacity to make correct
inferences from propositions, to size up facts for
what they are and what they imply, and to
identify the best means to some end, and, in
general, to distinguish what we should believe
from what we merely do believe. The importance of
giving reason, it reveals a rational nexus between
facts considered and conclusions reached.
W.P.(C) No.31236 of 2023 Page 92 of 107
9. In Union of India Vrs. Madal Lal Capoor, AIR 1974
SC 87 and Uma Charan Vrs. State of MP, AIR
1981 SC 1915, the Apex Court held reasons are
the links between the materials on which certain
conclusions are based and the actual conclusions.
They disclose how the mind is applied to the
subject-matter for a decision whether it is purely
administrative or quasi judicial and reveal a
rational nexus between the facts considered and
conclusions reached. The reasons assure an
inbuilt support to the conclusion and decision
reached. The fair play requires recording of
germane and relevant precise reasons when an
order affects the right of a citizen or a person
irrespective of the fact whether it is judicial, quasi
judicial or administrative. The recording of reasons
is also an assurance that the authority concerned
applied its mind to the facts on record and it is
vital for the purpose of showing a person that he is
receiving justice.”
14.9. It is stated in State Bank of India Vrs. Ajay Kumar
Sood, 2022 SCC OnLine SC 1067 that individual
judges can indeed have different ways of writing
judgments and continue to have variations in their
styles of expression. The expression of a judge is an
unfolding of the recesses of the mind. However, while
recesses of the mind may be inscrutable, the
reasoning in judgment cannot be. While judges may
have their own style of judgment writing, they must
ensure lucidity in writing across these styles.
W.P.(C) No.31236 of 2023 Page 93 of 107
14.10. Ascribing reasons being one of the important
facets of decision-making process for arriving at the
just conclusion, the opposite parties in the counter
affidavit without specifying propriety of action taken
under Rule 42 of the Pension Rules could not improve
upon the case by supplementing fresh reasons. Mere
stating exercise power under Rule 42 in the Order
dated 11.08.2023 and Order dated 16.09.2023 in
order to justify the decision taken for accepting
application for voluntary retirement curtailing the
period specified by the petitioner in the notice dated
03.07.2023 unilaterally would not render the action
valid. To clarify it may be stated that in Rule 42(3) of
the Pension Rules it is the Government servant
seeking voluntary retirement who may request the
Appointing Authority to accord permission to waive
notice period. On such request if made by such
Government servant who is desirous of retiring
voluntarily, the Appointing Authority under such
circumstance is conferred power to “consider” such
request.
14.11. To appreciate the term “consider” as found
mentioned in clause (b) of sub-rule (3) of Rule 42, it
may be noteworthy to refer to Ram Chander Vrs. Union
of India, AIR 1986 SC 1173, wherein it has been held
that the word „consider‟ occurring in the Rule must
W.P.(C) No.31236 of 2023 Page 94 of 107
mean the Authority shall duly apply its mind and give
reasons for its decision. The duty to give reason is an
incident of the judicial process and emphasized that in
discharging quasi judicial functions the Authority
must act in accordance with the principles of natural
justice and give reasons for its decision.
14.12. “Consideration” does not mean incidental or
collateral examination of a matter by the Authority in
the process of assessment/adjudication/
determination. There must be something in the order
to show that the Authority applied his mind to the
particular subject-matter or the particular source of
information with a view to arriving at its conclusion.
See, Additional Commissioner of Income Tax Vrs.
Gurjargravures Pvt. Ltd., AIR 1978 SC 40 = (1978) 2
SCR 169 = 1977 INSC 215.
14.13. The word „consider‟ is of great significance. Its
dictionary meaning of the same is, „to think over‟, „to
regard as‟, or „deem to be‟. Hence, there is a clear
connotation to the effect that there must be active
application of mind. In other words, the term „consider‟
postulates consideration of all relevant aspects of a
matter. Thus, formation of opinion by the statutory
Authority should reflect intense application of mind
with reference to the material on record. The order of
W.P.(C) No.31236 of 2023 Page 95 of 107
the Authority should reveal such application of mind.
The Authority cannot simply adopt the language
employed in the document before it and proceed to
affirm the same. [Vide, Chairman, LIC of India Vrs. A.
Masilamani, (2013) 6 SCC 530; Nilamani Jal Vrs.
Collector, 2016 (II) OLR 190 (Ori)].
14.14. Thus, cursory glance at Order dated 11.08.2023
of the MSME Department, Order dated 16.09.2023 of
the Director, DEPM and Letter dated 29.09.2023 of
MSME reveals that the Appointing Authority had
exercised its power being conferred under Rule 42 of
the Pension Rules. In the counter affidavit mere
making statement that Rule 42 “does not preclude the
Government from granting voluntary retirement before
expiry of three months from the date of application”
would not suffice to countenance the action of the
opposite parties. If such exercise of power unilaterally
before elapse of three months‟ notice period is
construed in favour of the opposite parties, then the
scope of withdrawal of notice or making request for
“curtailment of period of notice of three months on
merits” as contained in Rule 42(3)(b) would get
constricted. Further such a view would render “giving
notice of not less than three months in writing to the
Appointing Authority” would get ineffective and otiose.
W.P.(C) No.31236 of 2023 Page 96 of 107
Scope of judicial review for intervention in
administrative action of the Authority:
15. It would suffice to refer to observations made in a
decision of the Hon‟ble Supreme Court of India in the
case of State of NCT of Delhi Vrs. Sanjeev @ Bittoo,
(2005) 3 SCR 151, which are to the following effect:
“One of the points that falls for determination is the
scope for judicial interference in matters of
administrative decisions. Administrative action is stated
to be referable to broad area of Governmental activities
in which the repositories of power may exercise every
class of statutory function of executive, quasi legislative
and quasi judicial nature.
It is trite law that exercise of power, whether legislative
or administrative, will be set aside if there is manifest
error in the exercise of such power or the exercise of the
power is manifestly arbitrary (See State of U.P. and Vrs.
Renusagar Power Co., AIR 1988 SC 1737.
At one time, the traditional view in England was that
the executive was not answerable where its action was
attributable to the exercise of prerogative power.
Professor De Smith in his classical work “Judicial
Review of Administrative Action” 4th Edition at pages
285-287 states the legal position in his own terse
language that the relevant principles formulated by the
Courts may be broadly summarized as follows.
The authority in which discretion is vested can be
compelled to exercise that discretion, but not to exercise
it in any particular manner. In general, discretion mustW.P.(C) No.31236 of 2023 Page 97 of 107
be exercised only by the authority to which it is
committed. That authority must genuinely address itself
to the matter before it; it must not act under the dictates
of another body or disable itself from exercising
discretion in each individual case. In the purported
exercise of its discretion, it must not do what it
has been forbidden to do, nor must it do what it
has not been authorized to do. It must act in good
faith, must have regard to all relevant
considerations and must not be influenced by
irrelevant considerations, must not seek to
promote purposes alien to the letter or to the
spirit of the legislation that gives it power to act,
and must not act arbitrarily or capriciously.
These several principles can conveniently be grouped in
two main categories:
(i) failure to exercise a discretion, and
(ii) excess or abuse of discretionary power.
The two classes are not, however, mutually exclusive.
Thus, discretion may be improperly fettered because
irrelevant considerations have been taken into account,
and where an authority hands over its discretion to
another body it acts ultra vires.
The present trend of judicial opinion is to restrict the
doctrine of immunity from judicial review to those
classes of cases which relate to deployment of troupes,
entering into international treaties, etc. The distinctive
features of some of these recent cases signify the
willingness of the Courts to assert their power to
W.P.(C) No.31236 of 2023 Page 98 of 107
scrutinize the factual basis upon which discretionary
powers have been exercised.
One can conveniently classify under three heads the
grounds on which administrative action is subject to
control by judicial review. The first ground is „illegality‟,
the second „irrationality‟, and the third „procedural
impropriety‟. These principles were highlighted by Lord
Diplock in Council of Civil Service Unions Vrs. Minister
for the Civil Service, (1984) 3 All.ER. 935 (commonly
known as CCSU Case). If the power has been
exercised on a non-consideration or non-
application of mind to relevant factors, the
exercise of power will be regarded as manifestly
erroneous. If a power (whether legislative or
administrative) is exercised on the basis of facts
which do not exist and which are patently
erroneous, such exercise of power will stand
vitiated. [See Commissioner of Income-tax Vrs.
Mahindra and Mahindra Ltd., AIR (1984) SC 1182].
The effect of several decisions on the question of
jurisdiction has been summed up by Grahame Aldous
and John Alder in their book “Applications for Judicial
Review; Law and Practice” thus:
„There is a general presumption against ousting the
jurisdiction of the Courts, so that statutory provisions
which purport to exclude judicial review are construed
restrictively. There are, however, certain areas of
Governmental activity, national security being the
paradigm, which the Courts regard themselves as
incompetent to investigate, beyond an initial decision as
to whether the government’s claim is bona fide. In this
kind of non-justiciable area judicial review is notW.P.(C) No.31236 of 2023 Page 99 of 107
entirely excluded, but very limited. It has also been said
that powers conferred by the Royal Prerogative are
inherently unreviewable but since the speeches of the
House of Lords in council of Civil Service Unions Vrs.
Minister for the Civil Service this is doubtful. Lords
Diplock, Scaman and Roskili appeared to agree that
there is no general distinction between powers, based
upon whether their source is statutory or prerogative
but that judicial review can be limited by the subject
matter of a particular power, in that case, national
security. May prerogative powers are in fact
concerned with sensitive, non-justiciable areas,
for example, foreign affairs, but some are
reviewable in principle, including the prerogatives
relating to the civil service where national
security is not involved. Another non-justiciable
power is the Attorney General‟s prerogative to decide
whether to institute legal proceedings on behalf of the
public interest.‟(Also see Padfield Vrs. Minister of Agriculture, Fisheries
and Food, LR (1968) AC 997.
The Court will be slow to interfere in such matters
relating to administrative functions unless
decision is tainted by any vulnerability
enumerated above; like illegality, irrationality
and procedural impropriety. Whether action falls
within any of the categories has to be established.
Mere assertion in that regard would not be
sufficient.
The famous case commonly known as „The
Wednesbury‟s case‟·is treated as the landmark so far
as laying down various basic principles relating toW.P.(C) No.31236 of 2023 Page 100 of 107
judicial review of administrative or statutory direction.
Before summarizing the substance of the principles laid
down therein· we shall refer to the passage from the
judgment of Lord Greene in Associated Provincial
Picture Houses Ltd Vrs. Wednesbury Corpn., (KB at p.
229: All ER A p. 682). It reads as follows:
„***.It is true that discretion must be exercised
reasonably. Now what does that mean? Lawyers
familiar with the phraseology used in relation to
exercise of statutory discretions often use the word
„unreasonable‟ in a rather comprehensive sense. 1t has
frequently been used and is frequently used as a
general description of the things that must not be done.
For instance, a person entrusted with a discretion
must, so to speak, direct himself properly in law.
He must call his own attention to the matters
which he is bound to consider. He must exclude
from his consideration matters which are
irrelevant to what he has to consider. If he does
not obey those rules, he may truly be said, and
often is said, to be acting „unreasonably‟.
Similarly, there may be something so absurd that
no sensible person could even dream that it lay
within the powers the authority. … In another, it
is taking into consideration extraneous matters. It
is unreasonable that it might almost be described as
being done in bad faith; and in fact, all these things run
into one another.‟Lord Greene also observed (KB p.230: All ER p.683)
„***.it must be proved to be unreasonable in the
sense that the court considers it to be a decision
that no reasonable body can come to. It is not whatW.P.(C) No.31236 of 2023 Page 101 of 107
the court considers unreasonable. …. The effect of the
legislation is not to set up the court as an arbiter of the
correctness of one view over another.‟Therefore, to arrive at a decision on
„reasonableness‟ the Court has to find out if the
administrator has left out relevant factors or
taken into account irrelevant factors. The
decision of the administrator must have been
within the four corners of the law, and not one
which no sensible person could have reasonably
arrived at, having regard to the above principles,
and must have been a bona fide one. The decision
could be one of many choices open to the authority but
it was for that authority to decide upon the choice and
not for the Court to substitute its view.
The principles of judicial review of administrative action
were further summarized in 1985 by Lord Diplock in
CCSU case as illegality, procedural impropriety and
irrationality. He said more grounds could in future
become available, including the doctrine of
proportionality which was a principle followed by
certain other members of the European Economic
Community. Lord Diplock observed in that case as
follows:
„***.Judicial review has I think, developed to a stage
today when, without reiterating any analysis of the
steps by which the development has come about, one
can conveniently classify under three heads the
grounds on which administrative action is subject to
control by judicial review. The first ground I would call
„illegality‟, the second „irrationality‟ and the third
„procedural impropriety‟. That is not to say that furtherW.P.(C) No.31236 of 2023 Page 102 of 107
development on a case-by-case basis may not in course
of time add further grounds. I have in mind particularly
the possible adoption in the future of the principle of
„proportionality‟ which is recognized in the
administrative law of several of our fellow members of
the European Economic Community.‟Lord Diplock explained „irrationality‟ as follows:
„By „irrationality‟ I mean what can by now be succinctly
referred to as „Wednesbury unreasonableness‟. It
applies to a decision which is to outrageous in its
defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the
question to be decided could have arrived at it.‟In other words, to characterize a decision of the
administrator as „irrational‟ the Court has to
hold, on material, that it is a decision „so
outrageous‟ as to be in total defiance of logic or
moral standards. Adoption of „proportionality‟ into
administrative law was left for the future.
These principles have been noted in aforesaid terms in
Union of India Vrs. G. Ganayutham, (1997) 7 SCC 463.
In essence, the test is to see whether there is any
infirmity in the decision making process and not in the
decision itself. (See Indian Railway Construction Co. Ltd
Vrs. Ajay Kumar, (2003) 4 SCC 579.”
15.1. Viewed the present case at hand on the anvil of
aforesaid legal perspective as expounded by the
Hon‟ble Supreme Court of India the opposite parties
have not acted in consonance with what is conferred
under Rule 42 more particularly when the case does
W.P.(C) No.31236 of 2023 Page 103 of 107
not fall within the ambit of sub-rule (3) of Rule 42 of
the Pension Rules for curtailment of notice period of
three months as required under sub-rule (1) ibid.
15.2. The opposite parties having passed Order dated
11.08.2023 of the MSME Department (Annexure-6A)
and Order dated 16.09.2023 of the Director, DEPM
(Annexure-6) specifying the date of retirement of the
petitioner unilaterally with effect from 30.09.2023
curtailing the date of voluntary retirement desired by
the petitioner in transgression authority and powers
conferred under Rule 42 of the Pension Rules, said
impugned Orders are vitiated. Under such
circumstance of the matter, this Court is inclined to
show indulgence in said Order in exercise of power of
judicial review in administrative action by applying the
exposition of law as enunciated by the Hon‟ble
Supreme Court of India cited above.
15.3. Under the aforesaid premises, the petitioner has made
out a case warranting exercise of extraordinary
jurisdiction under Article 226/227 of the Constitution
of India by holding that the Grievance Petition dated
18.09.2023 ought not to have been rejected without
assigning any reason whatsoever as is revealed from
communication vide Letter dated 29.09.2023 issuedW.P.(C) No.31236 of 2023 Page 104 of 107
by the Under-Secretary to Government of Odisha in
MSME Department.
15.4. No material justifying action taken against the
petitioner being placed by the learned Additional
Standing Counsel appearing for the opposite parties to
throw light on exercise of power under Rule 42 of the
Pension Rules, 1992. In absence of any material that
there was a request by the petitioner to curtail the
notice period, and lack of recording “satisfaction” that
curtailment of such notice period would not cause any
administrative inconvenience, the acceptance of
voluntary retirement with effect from 30.09.2023
before lapse of three months from 03.07.2023, i.e., the
date of application/notice for voluntary retirement
indicates the exercise of discretion is improper and
inappropriate, besides being irrational and illegal.
Therefore, the Orders under challenge in the writ
petition are said to be vitiated.
Conclusion:
16. Aforesaid discussion on facts and proposition of law
would boil down to demonstrate that the petitioner
having submitted his application dated 03.07.2023,
i.e., notice of not less than three months by specifying
that he desires to retire voluntarily with effect from
31.10.2023, there is no vested power available with
W.P.(C) No.31236 of 2023 Page 105 of 107
the opposite parties to suo motu spring into action by
curtailing the notice period. In the present fact
scenario the petitioner has never submitted any
application seeking to curtail or waive such notice
period.
16.1. From the narration of events it transpires that neither
the opposite party No.1 could pass the Order dated
11.08.2023 much prior to elapse of three months‟
notice period in view of sub-rule (1) read with sub-rule
(3) of Rule 42 nor could the opposite party No.2 pass
Order dated 16.09.2023 specifying date of retirement
of the petitioner on 30.09.2023 inasmuch as said date
would fall prior to lapse of three months from the date
of submission of notice, i.e., 03.07.2023.
16.2. For yet another reason the Orders impugned cannot
be held to be tenable is this: that they are not
supported by reasons. The acceptance of the
retirement notice prior to the effective date specified by
the petitioner would significantly prejudice his
position. This could lead to adverse civil
consequences, limiting the petitioner‟s ability to
request for waiver/curtailment of the notice period.
Furthermore, it would restrict his opportunity to
consider cooling-off period, which is essential for
W.P.(C) No.31236 of 2023 Page 106 of 107
contemplating the possibility of withdrawing his notice
desiring voluntary retirement from a particular date.
17. For the foregoing reasons, in the considered opinion of
this Court, the writ petition deserves to be allowed and
is, accordingly, allowed.
17.1. The action of the opposite parties in accepting the
application/notice dated 03.07.2023 desiring to retire
voluntarily is held to be premature and therefore, the
Order dated 11.08.2023 of the MSME Department
(Annexure-6A), the Order dated 16.09.2023 of DPEM
(Annexure-6) and the Letter dated 29.09.2023
(Annexure-6A) are declared illegal and unlawful being
contrary to the provisions of Rule 42 of the Odisha
Civil Services (Pension) Rules, 1992. It is, therefore,
hereby set aside.
17.2. The opposite parties are directed to reinstate the
petitioner in his service and treat him in continuous
service and give him all benefits including arrears of
salary.
18. The writ petition is, accordingly, allowed, with no order
Signature Not as to costs.
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary-in-charge) (MURAHARI SRI RAMAN)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK JUDGE
Date: 06-Jan-2025 18:49:58
High Court of Orissa, Cuttack
The 6th January, 2025//Aswini/MRS/Laxmikant
W.P.(C) No.31236 of 2023 Page 107 of 107