# Chandra Bhushan Pandey v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-02
- **Case number:** Civil Misc. Writ Petition No. 15711 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhushan-pandey-v-state-of-u-p-and-others-41748
- **Pages:** 5

## Headnote

Rule-56(C)
Voluntary
Retirement-petitioner
a
Civil
Police
Canstable
on
23.11.02
applied
for
voluntary retirement-authorities treating
in service placed under suspension by
order dated 24.6.06 on allegations of
unauthorise absence- 'No' deniel of fact
that request for voluntary retirement
ever rejected before it became effective
on 1.9.03-Subsequent proceeding by
treating in service-wholly illegal not
sustainable.

Held: Para 5

In
my
view,
this
defence
of
the
respondents
is
wholly
untenable.
Fundamental Rule 56 (c) is very clear
and confers a right upon an employee to
take retirement prematurely after giving
minimum three months' notice. The
petitioner, in the case in hand, sought
voluntarily
retirement
w.e.f.
1st
September, 2003. It is not the case of
the respondents that his application for
voluntary retirement was ever rejected
before it came into force, and, hence in
my
view
it
became
effective
on
01.09.2003. In the circumstances the
petitioner was entitled to be deemed to
have retired on 1st September, 2003.
Any subsequent proceeding as well as
action of the respondents treating the
petitioner
as
continuing
in
service
thereafter is wholly illegal and cannot be
sustained.
Case law discussed:
State of U.P. & Ors. Vs. Krishna Chandra
Agarwal 2007(2) ESC 760

## Text

3 All] Chandra Bhushan Pandey V. State of U.P. and others
1199
the petitioner appears to be correct and is
well supported by the judgement of this
Court in the case of Manmohan Singh vs.
State of U.P. in Civil Misc. Writ Petition No.
12958 of 1988 decided on 8.5.2007. For the
reasons recorded above this writ petition is
allowed. The orders dated 6.12.1985 &
15.4.1988 passed by the Prescribed Authority
as well as by the Appellate Authority are
hereby set aside.

9. Let the Prescribed Authority reexamine the matter in right of the
observation made afresh after affording
opportunity of hearing to the petitioner
preferably within 12 weeks from the date a
certified copy of this order is filed before
him.

Interim order is discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J,

Civil Misc. Writ Petition No. 15711 of 2007

Chandra Bhushan Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Mr. Rakesh Kr. Shukla
C.S.C.

Counsel for the Respondents:
Mr. Q.H. Siddiqui
C.S.C.

Fundamental
Rule-56(C)
Voluntary
Retirement-petitioner
a
Civil
Police
Canstable
on
23.11.02
applied
for
voluntary retirement-authorities treating
in service placed under suspension by
order dated 24.6.06 on allegations of
unauthorise absence- 'No' deniel of fact
that request for voluntary retirement
ever rejected before it became effective
on 1.9.03-Subsequent proceeding by
treating in service-wholly illegal not
sustainable.

Held: Para 5

In
my
view,
this
defence
of
the
respondents
is
wholly
untenable.
Fundamental Rule 56 (c) is very clear
and confers a right upon an employee to
take retirement prematurely after giving
minimum three months' notice. The
petitioner, in the case in hand, sought
voluntarily
retirement
w.e.f.
1st
September, 2003. It is not the case of
the respondents that his application for
voluntary retirement was ever rejected
before it came into force, and, hence in
my
view
it
became
effective
on
01.09.2003. In the circumstances the
petitioner was entitled to be deemed to
have retired on 1st September, 2003.
Any subsequent proceeding as well as
action of the respondents treating the
petitioner
as
continuing
in
service
thereafter is wholly illegal and cannot be
sustained.
Case law discussed:
State of U.P. & Ors. Vs. Krishna Chandra
Agarwal 2007(2) ESC 760

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Rakesh Kumar Shukla
for the petitioner, learned Standing Counsel
of the respondents and perused the record.

2. The petitioner petitioner was
appointed as Constable in U.P. Police Force
in 1974. On 23.11.2002 he applied for
voluntary retirement w.e.f. 1st September,
2003. A copy of this application is on record
as Annexure 1 to the writ petition. It was
forwarded by the Superintendent of Police,
Kaushambi on 23.11.2003 to higher
authorities. Thereafter it appears that no
decision was taken thereon though the
1200 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
petitioner sent some further letters. The
respondents instead of treating the petitioner
having voluntary retired on 1st September,
2003, took him as if he has continued in
service and by order dated 24th June, 2006
he was placed under suspension on the
allegation that he was absent from duty
w.e.f. 06.10.2004. A charge sheet was issued
on 15th June, 2006 which culminated in an
order of dismissal dated 15th February,
2007 passed by the Superintendent of
Police, Kaushambi.

3. Learned counsel for the petitioner
submits that having applied for voluntarily
retirement w.e.f. 1st September, 2003 in
accordance with Fundamental Rule 56(c),
he ought to be deemed to have retired on
that date and no proceedings thereafter
could have continued. Hence the entire
proceedings are illegal and void ab initio.
Reliance is placed on a Division Bench
decision in State of U.P. & Ors. Vs.
Krishna Chandra Agarwal 2007(2) ESC
760. Considering similar provision therein
this Court in para 5 to 7 of the judgment
held as under:

"5. A careful reading of FR-56(c)
makes it clear that a Government Servant
can be retired by the employer prematurely
without assigning any reason after he
attains the age of fifty years by giving three
months notice at any time. Similarly a
Government
Servant
can
also
seek
voluntarily retirement at any time after
attaining the age of forty five years giving a
similar three months notice. The proviso of
FR-56 (c) further provides that the
Government Servant may be retired by the
employer giving a shorter notice or without
any notice but in such a contingency, he be
entitled to claim some amount for the period
of notice by which such notice falls short of
three
months.
Similarly,
where
the
Government Servant tenders notice, it is
open to the appointing authority to allow
him to retire without any notice or for a
shorter period of notice without incurring
any liability to pay any penalty on account
of such permission. It further provides
where a disciplinary proceeding is pending
or contemplated, the notice shall be
effective only if it is accepted by the
appointing authority, provided that in a case
of contemplated enquiry, the government
Servant is informed before expiry of period
of notice that the same has not been
accepted. Therefore, the proviso restrict the
right of the Government Servant to retire by
tendering three months notice, where a
departmental enquiry is pending and in
such a case, the voluntary retirement would
be effective only after the said notice is
accepted by the appointing authority, even if
the period of notice is expired, but where
enquiry is only contemplated, in such a case
acceptance of notice would be necessary
provided the Government Servant is
informed by the employer before expiry of
period of his notice that it has not been
accepted. A somewhat similar provision
contained in Rule 161 of Bombay Civil
Service Rules came up for consideration
before the Apex Court in B.J. Shelat Vs.
State of Gujrat and others, (1978) 2 SCC
202. Rule 161 of the Bombay Civil Service
Rules empowered the Government Servant
to retire by giving a three months notice in
writing after attaining the age of 55 years.
However, proviso under Rule 161(2)(ii)
restricted such right of the Government
Servant where the departmental enquiry is
pending
or
contemplated
or
the
Government Servant is under suspension
and the said proviso reads as under :

"Provided that it shall be open to the
appointing authority to withhold permission
to retire to a Government Servant who is
3 All] Chandra Bhushan Pandey V. State of U.P. and others
1201
under
suspension,
or
against
whom
departmental proceedings are pending or
contemplated, and who seeks to retire under
this sub-section."

6. It was held that but for the proviso,
the Government Servant would be at liberty
to retire by giving not less then three months
notice to the appointing authority after
attaining the prescribed age. However,
though
the
proviso
empowered
the
appointing authority to withhold permission
to retire, yet the Court took the view that
this proviso contemplate a positive action
by
the
appointing
authority.
The
Government has to communicate its
intention of withholding of permission to the
Government Servant. Where no such
decision is taken and communicated to the
Government Servant and the period of
notice is allowed to expire, then it would
result in allowing the Government Servant
to retire without taking any action. In order
to operate the proviso, it was thus necessary
that the Government should not only take a
decision but communicate it to the
Government Servant. The Court further
held where no such decision is taken and
communicated to the Government Servant,
after expiry of the period of notice, no
disciplinary action can be taken against
such Government Servant. The Court relied
on an earlier three Judges Judgment of the
Apex Court in Dinesh Chandra Sangma
Vs. State of Assam and others, (1997) 4
SCC 441, where it was held that for retiring
voluntarily under FR-56(c), a Government
Servant does not require any positive order
of the appointing authority unless required
by the Rules otherwise. Both the aforesaid
judgments have been followed in Union of
India & others Vs. Sayed Muzaffar Mir,
(1995) 1 UPLBEC 146 (SC), while
considering a pari materia provision under
Article 1801(d) of Railways Establishment
Code and in para-4 and 5 of the judgment,
it was held :

"4. There are two answers to this
submission. The first is that both the
provisions relied upon by the learned
counsel would require, according to us,
passing of appropriate order, when the
Government servant is under suspension (as
was the respondent), either of withholding
permission to retire or retaining of the
incumbent in service. It is an admitted fact
that no such order had been passed in the
present case. So, despite the right given to
the appropriate/competent authority in this
regard, the same is of no avail in the present
case as the right had not come to be
exercised. We do not know the reason(s)
thereof. May be, for some reason the
concerned authority thought that it would
be better to see off the respondent by
allowing him to retire.

5. The second aspect of the matter is
that it has been held by a three Judges
Bench of this Court in Dinesh Chandra
Sangma V. State of Assam, 1977 (4) SCC
441, which has dealt with a pari materia
provision finding place in Rule 56(c) of the
Fundamental
Rules,
that
where
the
Government
servant
seeks
premature
retirement the same does not require any
acceptance and comes into effect on the
completion of the notice period. This
decision was followed by another three
Judges Bench in B.J. Shelat V. State of
Gujrat, 1978 (2) SCC 202."

7. While considering the provisions of
FR 56 (c), a Division Bench of this Court in
Surendra Narain Singh Vs. D.I.G., Special
Appeal No. 649 of 1994 decided on 31st
January 1995 took the same view. Learned
standing counsel however sought to argue
that a mischievous Government Servant
1202 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
should not be allowed to take the advantage
of technicality otherwise the public interest
would suffer adversely. The argument is to
be noted only for rejection for the reason
that even if after retirement, the order of
punishment may not be passed under the
U.P. Government Servant (Discipline and
Appeal) Rules, 1999, yet the Government
may proceed to pass appropriate order
under Article 351A and 470 of Civil Service
Regulations and can take steps for recovery
of the amount, if any, which the Government
has suffered on account of alleged
misconduct of the Government Servant. The
Hon'ble Single Judge has also taken the
same view and we are in full agreement
with the view taken in the judgment under
appeal. "

4. Here also it is not case of the
respondents that till 1st September 2003 any
enquiry
was
pending
or
petitioner's
application for voluntary retirement was
rejected or was withheld otherwise by any
positive act. In the counter affidavit the only
defence taken is that since no sanction or
approval was granted on the petitioner's
request for voluntary retirement, hence he
continued to be in service and since his
absence was unauthorized from 28th
December, 2003, hence the proceedings
were initiated against him are correct.

5. In my view, this defence of the
respondents
is
wholly
untenable.
Fundamental Rule 56 (c) is very clear and
confers a right upon an employee to take
retirement
prematurely
after
giving
minimum
three
months'
notice.
The
petitioner, in the case in hand, sought
voluntarily retirement w.e.f. 1st September,
2003. It is not the case of the respondents
that his application for voluntary retirement
was ever rejected before it came into force,
and, hence in my view it became effective
on 01.09.2003. In the circumstances the
petitioner was entitled to be deemed to have
retired on 1st September, 2003. Any
subsequent proceeding as well as action of
the respondents treating the petitioner as
continuing in service thereafter is wholly
illegal and cannot be sustained.

6. At this stage, learned Standing
Counsel pointed out that since the
respondents treated the petitioner in service
beyond 1st September, 2003, therefore, the
petitioner had also been paid fully salary for
some period subsequent to 1st September,
2003 which otherwise he would not have
been entitled had he been deemed to retired
on 1st September, 2003.

7. Sri Rakesh Kumar Shukla, learned
counsel for the petitioner, stated at the Bar
and gave an undertaking that in case any
amount beyond the pensionary amount, if
any, has been paid to the petitioner, after 1st
September, 2003, it would be open to the
respondents to adjust such amount from the
retiral benefits payable to the petitioner.

8. In view of above undertaking, the
respondents are given liberty of adjustment
of the amount, if any, paid to the petitioner
over and above the retiral benefits and
pension payable on 1st September, 2003.

9. In the result the writ petition is
allowed. The impugned order of dismissal
dated 15.02.2007 (Annexure 8 to the writ
petition) is hereby quashed. The petitioner
shall be deemed to have retired on 1st
September, 2003 and shall be entitled for
his retiral benefits accordingly, which shall
be computed and determined by the
respondents subject to adjustment as
directed above within three months from the
date of production of certified copy of this
order and shall be paid accordingly within
3 All] Jagdish Narain V. Union of India and others
1203
two months thereafter.

10. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 19956 of 2008

Jagdish Narain

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.C. Kushwaha
Sri Lal Mani Bind

Counsel for the Respondents:
Sri H.N. Pandey
S.C.
Constitution
of
India
Art.
226-Writ
Petition maintainiblity-petition filed by
the
teachers
working
in
private
institution-recognition of by CBSE Board
for examination purpose-not receiving
any
financial
aid
either
by
central
government or by Corporation-held-writ
not maintainable.

Held: Para 8

In view of the Full Bench decision of this
Court the petitioner working in a private
institution, which is not a "State" with
the
meaning
of
Article
12
of
the
Constitution of India, I find no option
but to hold that this writ petition is not
maintainable. Admittedly the institution,
in which the petitioner was employee, is
a private institution and is not financed
in any manner or otherwise is controlled
by the Central Board of Secondary
Education nor is receiving grant-in-aid
from the State Government or Central
government or the Government or its
authority play any role except to the
extent that recognition is being granted
for holding examination of Secondary
classes.
Case law discussed:
2005 (4) ESC 2265, Civil Appeal No. 339 of
2007, Writ Petition No.29743 of 2009, Special
Appeal No.757 of 2001, Special Appeal No.
956 of 2006.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri S.C.Kushwaha for the
petitioner and Sri H.N.Pandey for the
respondents and perused the record.

2. The petitioner is a teacher in a
private institution namely Sarswati Vidya
Mandir, Senior Secondary School, Etah
which is affiliated to Central Board of
Secondary Education and having been
terminated by the Management of the
Institution, has preferred the present writ
petition.

3. Sri H.N.Pandey, learned counsel
appearing for the respondents has raised
preliminary objection that the writ petition
is not maintainable and has placed reliance
on a Full Bench decision in M.K.Gandhi
& others Vs. Director of Education
(Secondary U.P., Lucknow & others 2005
(4) ESC 2265 as also the Apex Court
decision in appeal taken up from that
judgment as Civil Appeal No. 339 of 2007
(Committee
of
Management,
Delhi
Public School & another Vs. M.K.
Gandhi and others) decided on 16th
August, 2007 which both have been
referred to in Smt. (Dr.) Deepa Agarwal
Vs. State of U.P. & others in Writ Petition
No.29743 of 2009 decided on 11th June,
2009.

4. Learned counsel for the petitioner
placed reliance on a Division Bench
decision in Sandeep Chauhan and others
Vs. State of U.P. and others in Special