(Pronounced by Honble Mr. G. Shanthappa, Judicial Member.) Orders on M.A. No.873/2011. The above application has been filed by applicant requesting the Tribunal to direct the respondent No. 1 to produce the file maintained by the first respondent department with regard to the application made by the applicant to proceed on voluntary retirement vigilance case file relating to the applicant. Notices were issued to the respondents. The first and second respondents have not produced any document as sought for in the M.A. We will consider the averments made in the M.A along with O.A. Orders on OA.
2. This O.A has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: 1. To Call for the records relating to GO Rt. No. 4059 Public (Special A) department dated 07.12.2011 issued by the first respondent illegally rejecting the notice for voluntary retirement made by the applicant under rule 16 (2) of the All India services (DCRB) Rules, 1958 by citing a completely different and erroneous rule viz Rule 16 (2-A) and to declare the same non est and invalid in law; 2.To declare that the applicant is deemed to have retired from service with effect from 09.12.2011 by the operation of law as per rule 16 (2) and 3.Further to direct the first respondent to disburse all the retirement benefits payable to the applicant with reasonable rate of interest within one month and to pass such further or other orders (including award of costs) as may be deemed fit and proper in the circumstances of the case and thus render justice.
3. We have heard the learned counsel for the respective parties. The admitted facts from either side are that the applicant belongs to 1983 batch IAS and his date of birth is 31.07.1957. He has completed 28 years of service and he has crossed 50 years of age. The applicant has not been suspended and no notice of inquiry was issued to him. The applicant submitted an application seeking voluntary retirement vide notice dated 08.09.2011. He desires to retire voluntarily from IAS w.e.f. 09.12.2011. It is also an admitted fact, the applicant did not require the date of voluntary retirement earlier than 09.12.2011. The first and second respondent served an order of rejection dated 07.12.2011 i.e. two days before the crucial date of voluntary retirement i.e. 09.12.2011. The applicant relieved from service on 09.12.2011.
4. It is the contention of the applicant that he had attained 50 years of age on 31.07.2007 and thereafter he became eligible to submit notice seeking voluntary retirement under rule 16 (2) of All India Services ( Death Cum Retirement Benefits) Rules, 1958 ( herein after referred to as the Rules 1958). The State Government cannot deny a Member of All India Services right conferred upon him by Rule 16 (2) of the Rules 1958. By the simple device of not passing any orders within three months from the date of submission of notice seeking voluntary retirement or passing a prima facie illegal order of rejection under the irrelevant rules or refusing to relieve the Member of All India Services on voluntary retirement which is arbitrary and illegal. The applicant reliably learnt that the 2nd respondent , for reasons best known to him, had a suddenly took volte face when just seven day are left for expiry of notice period and ordered a preliminary inquiry by the Directorate of Vigilance and Anti Corruption ( DVAC for short ) on 02.12.2011, on the basis of alleged anonymous/ pseudonymous petition.
5. The State Government has ignored the instruction No. 3(v)/99/2 dated 29.06.99 of the Central Vigilance Commission. The applicant has not received any kind of notice regarding the alleged preliminary inquiry which was ordered by the 2nd respondent. The impugned order is illegal, against law and mala fide in nature and violative of Art. 14 and 16 of the Constitution of India. It is the contention of the applicant that Rule 16 (2) of the Rules, 1958 are applicable to him and not Rule 16 (2) (A) of the Rules, 1958 as stated by the 1st and 2nd respondents in the impugned order. It is well settled law that voluntary retirement notice submitted by the applicant under Rule 16 (2) does not require acceptance unless the Member of Service, who requested for voluntary retirement, is under suspension. Admittedly, the applicant was not under suspension and therefore, after expiry of the period of three months from the date of notice, the applicant is deemed to have been retired from service. The first respondent has misconceived the rules and is of wrong notion that acceptance is necessary even in cases where the officer (A member of All India Services) is not under suspension. Generally if a thing to be done in a particular manner that should be done only in that manner and not by any other manner. The first respondent does not have any jurisdiction to pass the impugned order and the impugned order is nothing but coluorable exercise of power and vitiated by malice in law in as much as it has been issued with ulterior motive to achieve collateral object.
6. The respondents 1 & 2 have vehemently opposed the O.A and denied the allegation and averments made in the O.A. It is their contention that notice submitted by the applicant seeking voluntary retirement which falls under Rule 16 (2) (A) of the Rules, 1958. The applicant had completed only 28 years of service as stated by him and as per first proviso to sub rule (2) (A) of Rule 16 of the Rules, 1958 acceptance of the offer voluntary retirement by the State Government is required if the date of voluntary retirement is earlier than the date on which the Member of Service would have retired from service under Sub rule 2 of Rule 16 of the Rules 1958. sub rule (2) of Rule 16 of the Rules 1958 refers to two dates of retirement from service (i) the date on which a member of service completes thirty years of qualifying service and the other (ii) the date on which a member of service attains fifty years of age. If the date of retirement on the expiry of the period of notice is earlier than the two dates of retirement referred to in sub rule (2 A) of rule 16 of the Rules, 1958, then the acceptance of voluntary retirement by the State Government is required.
7. `The date of voluntary retirement, on completion of 30 years of qualifying service, in terms of sub rule (2) of Rule 16 of the Rules 1958, falls during 2013. Therefore the requested date of voluntary retirement i.e. 09.12.2011 is earlier than the date on which he would retire on completion of 30 years of qualifying service under sub-rule (2) Rule 16 of the Rules and as such, the acceptance of offer of voluntary retirement of the officer in question by the competent authority is required under the first proviso to sub Rule (2 A) of Rule 16 of Rules 1958 in this case and therefore the claim of the applicant that he stands voluntarily retired from service w.e.f. 09.12.2011 is not correct. The applicant would complete 30 years of service only on 03.09.2013.
8. After following the due procedure, the State Government have ordered the DVAC to conduct preliminary inquiry against the applicant for certain irregularities committed by him while he was holding the post of Principal Secretary to Government, Rural Development and Panchayat Raj Department. The request of the applicant has been examined by the Government as per item 1 (ii) of the said Government of Indias decision since an inquiry by the concerned investigating agency is pending against the applicant and his request for voluntary retirement was not accepted since the Government do not want to give room for the impression that the applicant was allowed to get away after committing irregularities.
9. As per GO Rt. No. 4059, Public (Special A) Department dated 07.12.2011, orders were issued that the Government do not accept the voluntary retirement given by the applicant. The impugned order had been served on the applicant on 07.12.2011 i.e. before the date of voluntary retirement i.e. 09.12.2011. It is the specific stand of the respondents 1 & 2 that rule 16 (2A) of the said Rules alone applicable and not Rule 16 (2) of the Rules 1958 as contended by the applicant. The decision taken by the first and second respondent, not to relieve the applicant on 09.12.2011, is valid. The request of the applicant to settle his terminal benefits cannot be granted since he is still continuing in service. The applicant cannot be said to be retired on 09.12.2011.
10. The applicant was informed on 07.12.2011 that the government did not accept the notice of voluntary retirement given by him and despite the government order, the applicant stayed away from his duties claiming that he retired from service on 09.12.2011, which is not correct. No reference has been made out in the CTC sent by the applicant and as indicted in the said CTC VRS under Rule 16 (2) of the Rules, 1958, and therefore the CTC sent by the applicant was not a genuine one. Hence The question of settling terminal benefits to the applicant does not arise.
11. The learned counsel for 3rd respondent i.e. UOI, in his oral submission made and produced an order dated 18.01.2012 in which it is stated that the State Government has applied an incorrect rule ; i.e.16 (2A) of the Rules, 1958. Government of India instructions under Rule 16 (2) A of the Rules, 1958 are not applicable in the case of the applicant. The action of the State Government in rejecting the voluntary retirement by applying a wrong rule/instruction is, therefore, not in order. The voluntary retirement submitted by the applicant should be dealt with in terms of Rule 16 (2) of the Rules, 1958 read with GOI decision No. 5 thereunder.
12. We have carefully considered the facts of this case, pleadings available on record, the submissions made by the learned counsel for the applicant, the learned Advocate General appearing for respondents 1 & 2 and learned Sr. Central Govt. Standing counsel Shri S. Muthusamy, counsel for R.3 (UOI).
13. We have also considered the decisions of (i) the Honble Supreme Court of India rendered in the case of State of Haryana and others vs. S.K. Singhal [(1999)4 SCC 293] and (ii) the decision of the Ahemedabad Bench of this Tribunal rendered in the case of Jasvinder Singh Rana vs. UOI and anr. [ O.A. No. 246/2010 and M.A. No. 285/2010 decided on 23.06.2011] relied on by the applicant. The learned counsel for the 1st and 2nd respondents has also relied on the judgements of Honble Supreme Court rendered in the following cases; (i) Himachal Pradesh Hortaicultural Produce Marketing & Processing Corporation vs. Suman Behari Sharma [ (1996) 4 SCC 584] ; (ii) Ashok Kumar Sahu vs. UOI and ors. [ .(2006) 6 SCC 704]; (iii) State of Uttar Pradesh and others vs. Luxmi Kant Shukla [ (2011) 9 SCC 532].
14. According to the admitted facts from either side, the applicant had submitted his notice of voluntary retirement on 08.09.2011 to the first respondent with a request that he wants to proceed on voluntary retirement for purely personal reasons w.e.f. 09.12.2011after completion of three months notice period. He had also represented to the 3rd respondent, the Union of India. However, the first respondent rejected the request of the applicant to go on voluntary retirement w.e.f. 09.12.2011, just two days prior to the proposed date of voluntary retirement, by applying Sub Rule (2A) of rule 16 of AIS (DCRB) Rules, 1958. The 3rd respondent, who is the competent authority, vide order dated 18.01.2012, had taken a decision in favour of the applicant to go on voluntary retirement. The said decision of the 3rd respondent was communicated to the 1st respondent. The learned counsel for the 3rd respondent produced a copy of the said order dated 18.01.2012 during the pendency of the O.A. But no reply has been filed on behalf of 3rd respondent. The learned counsel for the 3rd respondent has submitted that the 3rd respondent is the competent authority to accept the voluntary retirement of a Member of Indian Administrative Service. The 3rd respondent has clarified that Rule 16 (2) of the Rules 1958 are applicable to the facts of this case and not Rule 16 (2A) of AIS (DCRB) Rules, 1958. It is stated that the State Government has applied an incorrect rule 16 (2A) of the said Rules, 1958 while examining the request of the applicant seeking voluntary retirement. Government of India decisions under Rule 16 (2A) of the Rules, 1958 are not applicable to the present case and the action of the State Government in rejecting the voluntary retirement notice of the applicant by quoting wrong rule/instruction, is, therefore, not in order. His notice of voluntary retirement should be dealt with in terms of rule 16 (2) of the said Rules, 1958 read with Government of India decision No. 5. thereunder.
15. It is admitted from either side that the applicant has completed 28 years of service and he has crossed 50 years of age on the proposed date of voluntary retirement. It is also an admitted fact that the applicant has not been suspended and no notice was issued to the applicant in respect of the preliminary inquiry conducted by the DVAC, which allegedly pending against him. Under this factual position, we have to decide which Rule is applicable to the facts of this case? It is relevant to extract Rule 16 (2) and Rule 16 (2A) of the Rules, 1958. Rule 16 (2) A member of the Service may, after giving at least three months previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice: Provided that no member of the Service under suspension shall retire from service except with the specific approval of the Central Government. Provided further that the State Government concerned on a request made by the member of the service may, if satisfied and for reasons to be recorded in writing, relax the period of notice. Rule 16 (2) (A) A member of the service may, after giving three months previous notice in writing to the State Government concerned, retire from service on the date on which he completes 20 years of qualifying service or any date thereafter to be specified in the notice: Provided that a notice of retirement given by a member of the service shall require acceptance by the Central Government if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub-rule (2):
16. The learned Advocate General, appearing for the respondents 1 & 2 vehemently contended that as per the first proviso to sub Rule (2A) of Rule 16 of the Rules, 1958, acceptance of the offer of voluntary retirement by the State Government is required, if the date of voluntary retirement is earlier than the date on which the member of the Service could have retired from service under sub-rule (2) of Rule 16 of the Rules, 1958. sub rule (2) of Rule 16, of the Rules 1958, refers to two dates of retirement from service. i.e. (i) the date on which the Member of Service completes 30 years of qualifying service or (ii) the date on which the Member of service attains 50 years of age. If the requested date of retirement on the expiry of the period of notice is earlier than the two dates of retirement referred to above, the condition of acceptance of voluntary retirement by the concerned State Government is required. It is further contended that the date of retirement on completion of 30 years of qualifying service in terms of sub rule (2) of Rule 16 of the Rules, 1958 falls during 2013. Therefore the requested date of voluntary retirement i.e. 09.12.2011 is certainly earlier than the date on which he would retire on completion of 30 years of qualifying service under sub rule 2A of Rule 16 of the Rules, 1958. It is further contended that the State Government have ordered Directorate of Vigilance and Anti Corruption (DVAC for short) to conduct a preliminary inquiry against the applicant for certain irregularities committed by him while he was holding the post of Principal Secretary to Government Rural Development and Panchayat Raj department. His assumption that based on an anonymous petition, the Government has ordered preliminary inquiry against him is not correct. As per item 1(ii) of the Government of India decision since an inquiry by the concerned investigating agency is pending against the officer and his request for voluntary retirement was not accepted since the Government do not want to give room for the impression that the applicant was allowed to get away after committing irregularities. The learned Advocate General therefore contended that the applicant is not entitled for the relief as prayed for and the decision taken by the State Government is perfect.
17. The learned counsel for the 3rd respondent submitted that he is not filing any reply on behalf of the 3rd respondent, but defended the stand taken by the 3rd respondent in the order dated 18.01.2012., in which it has been stated that the decision taken by the State Government is not correct and Rule 16 (2) (A) of the Rules, 1958 is not applicable to the facts and circumstances of this case.
18. We have examined the defence taken by the respondents 1 & 2 by applying the relevant rule supra. According to the notice of voluntary retirement dated 08.09.2011, a Member, after giving at least three months previous notice in writing to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service or attains 50 years of age or on any date thereafter to be specified in the notice,. Further the applicant has not been suspended. Proviso to Rule 16 (2) states that no member of the Service under suspension shall retire from service except with the specific approval of the Central Government. Further provision of the said Rule states that the State Government concerned on a request made by the member of the service may, if satisfied and for reasons to be recorded in writing, relax the period of notice. We are of the considered view that under the facts and circumstances of this case, since the applicant has not been suspended and he had attained 50 years of age, he is eligible for submitting a notice seeking voluntary retirement. Accordingly, the applicant had submitted his notice dated 08.09.2011 seeking voluntary retirement w.e.f. 09.12.2011. According Rule 16 (2A) of the Rules, 1958, a member of the Service may, after giving at least three months previous notice in writing to the State Government concerned, retire from service on the date on which he completes twenty years of qualifying service or on any date thereafter to be specified in the notice. Provided that a notice of retirement given by a member of the service shall require acceptance by the Central Government if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub rule (2) The said proviso is not applicable to the facts of this case.
19. After careful consideration of the above two provisos and the facts of this case, we are of the view that Rule 16 (2) of the Rules, 1958 alone applicable to the case in hand and the decision taken by the 3rd respondent vide order dated 18.01.2012 is legally valid. Respondents 1 & 2 have taken a decision vide order dated 07.12.2011 rejecting the request of the applicant by applying Rule 16 (2A) of the Rules, 1958, on the ground that an inquiry is pending against the applicant before the concerned investing agency. The learned Advocate General has not produced the notice of inquiry against the applicant, and he admitted no notice of inquiry was served on the applicant. We make it clear that Rule 16 (2A) of the Rules, 1958 is not applicable to the facts of this case. The 1st and 2nd respondent contended that DVAC is conducting preliminary inquiry for certain irregularities committed by the applicant while he was holding the post of Principal Secretary to the Government Rural Development and Panchayat Raj department. The learned Advocate General appearing for respondents 1 & 2 has not produced any kind of document or acknowledgement for having served notice on the applicant relating to the inquiry against the applicant. He submitted that a preliminary inquiry is pending against the applicant and on these grounds, the request of the applicant, seeking voluntary retirement, has been rejected and the decision taken by the respondent 1 & 2 vide impugned order dated 07.12.2011 is perfect and legally valid.
20. The learned Advocate General has submitted that the decision taken by the 3rd respondent vide order dated 18.01.2012 is not the correct decision and the same is against the rules. When we raised a query to the learned Advocate General as to whether the State Government had challenged the said order, the reply given by the learned Advocate General is that it is not necessary to challenge the said order since the order is non est in the eye of law. We are not inclined to accept the above contention of the learned Advocate General. The learned Advocate General further submitted that they have not taken permission or approval from the 3rd respondent while issuing the impugned order dated 07.12.2011, but the impugned order was communicated to the 3rd respondent. The learned Advocate General also submitted that the applicant got relieved himself from the office w.e.f. 09.12.2011 and in the MTC form 2.A i.e. Certificate of Transfer of Charge, he has not quoted any Government Order granting him permission relieving him from the office. Hence the certificate of Transfer of Charge submitted by the applicant is illegal. In support of the above contention, the learned Advocate General has produced one of relieving order, relating to Smt. S. Malathi IAS, in which the Government Order Number has been quoted. Since such a procedure has not been followed by the applicant, his relief is not in accordance with the procedure. It is also submitted by the learned Advocate General that the applicant had deserted from service w.e.f. 09.12.2011 without proper order from the 1st respondent and hence his absence from office subsequent to 09.12.2011 is unauthorized one and hence he is not entitled to the retiral benefits.
21. As per annex. A/8, the applicant was relieved on 09.12.2011 based on the notice of voluntary retirement notice period which expired on 09.12.2011. After receipt of the impugned order, the applicant submitted a representation dated 10.12.2011 to the first respondent, a copy of which was also sent to the 3rd respondent since the decision taken by the 3rd respondent in respect of voluntary retirement of the applicant is in accordance with Rule 16 (2) of the Rules, 1958. The relieving order, as per Annex. A/8, was in order.
22. The learned Advocate General in support of his contention that the permission of the State Government is a must in respect of the applicant, relied on the following judgements of the Honble Supreme Court (i) Himachal Pradesh Hortaicultural Produce Marketing & Processing Corporation vs. Suman Behari Sharma [ (1996) 4 SCC 584] ; (ii) Ashok Kumar Sahu vs. UOI and ors. [ .(2006) 6 SCC 704]; (iii) State of Uttar Pradesh and others vs. Luxmi Kant Shukla [ (2011) 9 SCC 532].
23. We have carefully examined the facts of the said cases and the facts of the present case. The said judgements of the Honble Supreme Court have no relevance to the facts of this case. Hence we reject the contention of the learned Advocate General appearing for respondents 1 & 2.
24. The learned counsel for the applicant relied on the judgement of the Honble Supreme Court rendered in the case of State of Haryana and others vs. S.K. Singhal [(1999)4 SCC 293]. The facts of the said case and the facts of the present case are not similar and hence the said judgement is not applicable to the facts of this case. The learned counsel for the applicant also relied on the order of a coordinate Bench of this Tribunal at Ahemedabad passed in the case of Shri Jasvinder Singh Rana vs. UOI and anr. [ M.A. No. 285/2010 and O.A. No. 246/2010 dated 23.06.2011] We have gone through the said case. In the case of the applicant before the Ahemedabd Bench of this Tribunal, a departmental inquiry was pending against the applicant and hence the recommendations made by the DPC was kept in sealed cover. In the present case, a preliminary inquiry was only initiated against the applicant but no notice was issued to the applicant and hence the said order of the Ahemedabad Bench is not applicable to the facts of this case.
25. For the foregoing reasons, we are of the considered view that the applicant has established his case for the grant of relief. The impugned order has been issued by applying sub Rule (2 A) of Rule 16 of AIS ( DCRB) Rules 1958 which is illegal. The first respondent has not applied in correct rule. Under the facts and circumstances of this case Rule 16 (2) of AIS (DCRB) Rules 1958 only applicable. The 3rd respondent, who is the competent authority, has rightly decided the representation of the applicant under the above rule. The 3rd respondent has justified the decision taken in their order dated 18.01.2012, which has been produced along with the typed set (Annex. A/2). The learned counsel for the 3rd respondent also produced a copy of the order, while arguing the case. The said decision of the 3rd respondent is binding on the 1st respondent, that has not been challenged by the 1st respondent. The 1st and 2nd respondents have failed to justify the impugned order of rejection of the notice seeking voluntary retirement by quoting that the applicants case falls within the purview of sub rule (2 A) of Rule 16 of the said Rules, 1958.
26. In view of the above discussions, we are inclined to quash the impugned order dated 07.12.2011 and we do so. The 1st and 2nd respondents are directed to accept the voluntary retirement of the applicant from service w.e.f. 09.12.2011 based on the order of the 3rd respondent dated 18.01.2012 and disburse the retiral benefits to the applicant, within a period of three months from the date of receipt of a copy of this order.
27. With the above directions the O.A is allowed. No order as to costs. In view of the orders passed O.A, nothing survives in M.A No. 873/2011, and the same is hereby closed. . [O.P.Sosamma] [G.Shanthappa] Administrative Member. Judicial Member. jsv.