Sanjay Paswan v. The State of Bihar & Ors

Chowkidar to nominate his successor which is to be done at least one month prior to the date of his retirement. The petitioner also prays for quashing of the order passed by the Sr. Deputy Collector dated 30.5.2015 bearing Memo No. 580 dated 22.6.2015, impugned at Annexure 4 to the writ petition, whereby his prayer has been rejected inter alia on grounds that the application was not filed within the prescribed time.

Mr. Sinha, learned counsel appearing on behalf of the petitioner, has drawn attention to the amendment notification dated 5.3.2014 to the Bihar Chowkidar Cadre Rules, 2006 (hereinafter referred to as 'the Rules'), a copy of which has been placed at Annexure 1, to submit that a proviso (ka) was added to sub-Rule (7) of Rule 5 of 'the Rules' in question and whereby an outgoing Chowkidar was permitted to nominate his successor for which application was to be filed one month prior to the date of retirement. He further refers to proviso at Clause (gha) to submit that where the Chowkidar wishes to voluntary retire before his due date of retirement, such application is to be filed within one month of such date of voluntary retirement.

Mr. Sinha has next referred to the application filed by the father of the petitioner which is part of Annexure 2 to submit that on 29.4.2015 the father of the petitioner filed an application for voluntary

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retirement while requesting for appointment of his son as successor to the post and which was duly forwarded by the Circle Officer vide letter No. 368 dated 30.4.2015 before the District Magistrate, Patna present at Annexure 2, but has been rejected by the impugned order dated 30.5.2015 as communicated vide Memo No. 580 dated 22.6.2015 of the Sr. Deputy Collector, General Section, Patna, inter alia, on grounds that the application for voluntary retirement was not within the time period.

It is argued by Mr. Sinha that the father of the petitioner while seeking voluntary retirement, had made request for appointment of his son as the successor to the post of Chowkidar on 29.4.2015 in terms of the amended proviso at paragraph 3(ii)(ka) of the notification at Annexure 1, since the father of the petitioner was due to retire on 31.5.2015 and thus, the application in this regard was filed well within one month time period on 29.4.2015. He thus submits that Clause (gha) of the notification relied upon by the respondents, is not applicable in the present case rather governs cases of voluntary retirement and provides that an application for voluntary retirement is to be filed one month prior to the date of voluntary retirement so prayed. He submits that the father of the petitioner did not file his application for voluntary retirement exclusively rather while praying for voluntary retirement, he requested for appointment of his son

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which is fully governed by Clause 3(ii)(ka) and not (gha). It is submitted that on complete misreading of the statutory provision, the prayer for voluntary retirement and appointment of the petitioner was not accepted, rather the father of the petitioner retired in his normal course of service on 31.5.2015. He thus submits that the case of the petitioner in the circumstances would be governed by Clause 3(ii)(ka) and since the application of the father of the petitioner naming his son as the successor to the post was within the time period of one month from the due date of retirement, the application could not have been rejected.

The argument has been contested by Mr. Utsav Kumar, learned counsel appearing for the State, in reference to Clause (gha) of the notification at Annexure 1 and he submits that since the father of the petitioner had sought voluntary retirement but there was no gap of a month as mandated under the amended Rules in between the date of application and the date of voluntary retirement, hence the prayer was rejected. There is no explanation as to the reasons for rejection of the request for appointment of his son i.e. the present petitioner. I have heard learned counsel for the parties and have perused the records.

The two clauses which require a discussion in the present contest would be the proviso at paragraph 3(ii)(ka) and (gha)

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respectively of the amendment notification 2014, which run as follows:

"¼d½ pkSdhnkj laoxZ ds deZpkjh viuh ok/kZD; lsokfuo`fr dh frfFk ls de ls de ,d ekg iwoZ ds izeko l s LoSfPNd lsokfuo`fr ,oa pkSdhnkj in ij vius }kjk ukfer fdlh vkfJr dks fu;ksftr djus ds fy, vkosnu dj ldsxkA

¼?k½ LoSfPNd lsokfuo`fr dk bPNqd pkSdhnkj laoxZ ds O;fDr dks lsokfuo`fr dh viuh bfPNr frfFk ls de ls de ,d ekg iwoZ vius inLFkkiu ftyk ds ftyk inkf/kdkjh dks viuk vkosnu nsuk gksxkA^^

While the proviso at paragraph 3(ii)(ka) requires an outgoing Chowkidar to file his application for voluntary retirement as well as for naming his successor at least one month before his date of retirement/ date of voluntary retirement, Clause (gha) thereof provides that a Chowkidar seeking voluntary retirement should file his application for voluntary retirement at least one month before the date on which he seeks to voluntary retire. The two provisos are operating in different sphere and while Clause (ka) governs the issue of naming a successor by a Chowkidar seeking voluntary retirement, Clause (gha) governs the issue of voluntary retirement and in each case the application is to be filed one month prior to retirement/ voluntary retirement.

In so far as the present case is concerned, clearly it is the proviso present at paragraph 3(ii)(ka) which would govern the issue

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and since admittedly the application of the father of the petitioner seeking voluntary retirement as well as naming his son as his successor on the post of Chowkidar was filed more than a month before his date of retirement on 31.5.2015 i.e. on 29.4.2015, it could not have been rejected on grounds that his prayer for voluntary retirement was not made within the prescribed time. In fact the application having been filed on 29.4.2015, the prayer of the father of the petitioner for voluntary retirement and appointment of his son was well in advance of a month of retirement and thus the request was not liable for rejection on grounds that it was not filed within the stipulated period. In my opinion, the prayer of the father of the petitioner to seek voluntary retirement and naming his successor was within time and is fully governed by the proviso at paragraph 3(ii)(ka) and not (gha). Further that the father of the petitioner was yet allowed to superannuate in the normal course of his retirement on 31.5.2015, the respondents have thoroughly confused themselves in interpreting the stipulations present in the notification to deny the request made by the father of the petitioner to appoint his son as successor on the post of Chowkidar which request of the petitioner made in the application at Annexure 2 is fully governed by the proviso at paragraph 3(ii)(ka) of the notification at Annexure 1.

In result, the order passed by the Sr. Deputy Collector,

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General Section, Patna dated 30.5.2015 communicated vide Memo No. 580 dated 22.6.2015 is quashed and set aside. The writ petition is allowed with a direction to the respondents to take necessary steps for appointment of the petitioner in place of his father in terms of the request made by the father of the petitioner at Annexure 2.

(Jyoti Saran, J)

Surendra/-

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