# Ravindra Singh v. U.P. Jal Nigam Lko. & Anr

- **Citation:** (2021) 11 ILRA 1228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-07
- **Case number:** Service Single No. 11666 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-singh-v-u-p-jal-nigam-lko-anr-46526
- **Pages:** 11

## Headnote

A. Service Law - Right to seek voluntary
retirement - U.P. Fundamental Rule 56(c) and
(d) of the Financial Hand Book Vol. II (Parts II
to IV) - The exercise of option to retire
voluntarily
is
subject
to
the
Government/employer's
scrutiny
and
its
acceptance on the anvil of public interest. It is
not an absolute right of the employee that
fructifies on the expiry of three months' notice
period u/Rule 56(c) of the Rules. Therefore, the
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1229
Nigam had authority and jurisdiction to decline the
petitioner's application/notice to retire voluntarily.
(Para 19, 20)

The Explanation in the Rules in question has to be
applied to both the situations as contemplated in
Rule 56(c) and is applicable to both the exigencies
not only when the Government decides to retire an
employee, but also applicable where voluntary
retirement is sought by an employee. It cannot be
said that no further restriction by Explanation has
been added in a case where an employee has
decided to obtain voluntary retirement. The public
interest is the prime consideration on which
authority has to decide such a prayer as per the
rules applicable in the State of Uttar Pradesh. (Para
19)

U/Rule 56 as applicable in the State of Uttar
Pradesh, notice of voluntary retirement does
not come into effect automatically on the
expiry of the three months' period. Under the
Rule in question, the appointing authority has to
accept the notice for voluntary retirement or it can
be refused on permissible grounds. (Para 19)

B. Public interest, is no cloak to shield the
Administrator's
arbitrary
and
whimsical
decision, based on whims and caprice. It has
to be a decision by the primary decision maker,
that is to say, the Administrator taken bona fide to
qualify for a valid decision. It has to be one that is
free from the vice of arbitrariness and taken in
public interest. The assessment and conclusion
from the relevant and objective material to
judge public interest is the Administrator's
determination.
That
would
not
be
reassessed and trampled upon by the Court to
step into the Administrator's role as the
primary
decision
maker,
unless
the
Administrator's conclusion be perverse. (Para
21)

Nigam is in a precarious financial position. At the
same time, the Nigam is a public body charged
with the duty of managing water supply and
sewerage all over the State. The petitioner is a
Senior Engineer and experienced in the particular
nature of work, that is involved in the operations of
the Nigam. If the Nigam say that there has been a
reduction in the work force of their Class-A Officers
(which implies Engineers), it would certainly and
pre-eminently be the Nigam's decision to judge
whether public interest would suffer if the
petitioner is allowed to retire voluntarily and
abandon post. The petitioner is not an entry- level
Engineer or a fresh recruit, who can be replaced
with another like him at short n

## Text

_Characters 0–39,948 of 42,481. This is a partial read: ask again with offset=39948 for what follows._

1228 INDIAN LAW REPORTS ALLAHABAD SERIES
Grade IB had to have been correctly placed at
the bottom of the seniority list of the already
existing Health Inspectors Grade I w.e.f. 27-61997. Therefore, it cannot be said that benefit
has been given to the Leprosy Inspectors/Health
Inspector Grade IB/Health Inspector Grade I
with retrospective effect."

(82) Considering the aforesaid dictum of
the Apex Court and the facts that the appellants
are members of the service and substantively
appointed out of turn on the strength of the
statutory Government Orders, we are of the view
that the policy of the State Government issued
vide order dated 23.07.2015 was legally justified
and the learned Single Judge erred in quashing
the Government Order dated 23.07.2015 and the
seniority list

(83) There is one another aspect also, of
the issue. As stated hereinabove, the learned
Single Judge, while passing the impugned order,
has failed to appreciate the object of the
Government Order dated 03.02.1994, its source,
its nature etc. and also failed to appreciate the
nature of the appointment of the appellants.
Furthermore, the learned Single Judge has not
considered Rule 3 (i) and part of Rule 3 (m) of
the Rules, 2008, which was conjuncted after the
word ''and'. Even the Governments Orders dated
05.11.1965, 29.08.1983 and 24.07.2003, which
are the statutory orders as held by the Apex
Court in Chandra Prakash Tiwari Vs.
Shakuntala Shukla : AIR 2002 SC 2322 and by
the Full Bench of this Court in State of U.P.
and others Vs. Rajendra Singh and another :
2015 (4) ADJ 575 (LB) (FB), has not been
appreciated.

(84) It is settled law that when a judgment
is rendered by ignoring the provisions of the
governing statute and earlier larger Bench
decision on the point such decisions are rendered
per incuriam. This concept of per incurium has
been explained in many decisions of the Apex
Court, viz. Government of A.P. and another
Vs. B. Satyanarayan : 2000 (4) SCC 262,
Nirmaljeet Kaur Vs. State of M.P. and
another
:
2004
(7) SCC
558,
Tuples
Educational Society and another Vs. State of
U.P. and another : 2008 (3) AWC 2499 (FB).

(85) For the reasons aforesaid, the special
appeals are allowed. The impugned judgment
and order dated 20.02.2019 is hereby set-aside.
Consequently, writ petition Nos. 5677 of 2016
(S/S) : Mahanth Yadav and 6 others Vs. State of
U.P., 13625 of 2016 (S/S) : Kamal Singh Yadav
Vs. State of U.P. and others and writ petition
No. 10759 of 2016 (S/S) : Prabhakar Tripathi
and 6 others Vs. State of U.P. and others, are
hereby dismissed.
----------
(2021)12ILR A1228
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Service Single No. 11666 of 2021

Ravindra Singh ...Petitioner
Versus
U.P. Jal Nigam Lko. & Anr. ...Respondents

Counsel for the Petitioner:
Pradip Kumar Srivastava, Renu Misra

Counsel for the Respondents:
Rishabh Kapoor

A. Service Law - Right to seek voluntary
retirement - U.P. Fundamental Rule 56(c) and
(d) of the Financial Hand Book Vol. II (Parts II
to IV) - The exercise of option to retire
voluntarily
is
subject
to
the
Government/employer's
scrutiny
and
its
acceptance on the anvil of public interest. It is
not an absolute right of the employee that
fructifies on the expiry of three months' notice
period u/Rule 56(c) of the Rules. Therefore, the
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1229
Nigam had authority and jurisdiction to decline the
petitioner's application/notice to retire voluntarily.
(Para 19, 20)

The Explanation in the Rules in question has to be
applied to both the situations as contemplated in
Rule 56(c) and is applicable to both the exigencies
not only when the Government decides to retire an
employee, but also applicable where voluntary
retirement is sought by an employee. It cannot be
said that no further restriction by Explanation has
been added in a case where an employee has
decided to obtain voluntary retirement. The public
interest is the prime consideration on which
authority has to decide such a prayer as per the
rules applicable in the State of Uttar Pradesh. (Para
19)

U/Rule 56 as applicable in the State of Uttar
Pradesh, notice of voluntary retirement does
not come into effect automatically on the
expiry of the three months' period. Under the
Rule in question, the appointing authority has to
accept the notice for voluntary retirement or it can
be refused on permissible grounds. (Para 19)

B. Public interest, is no cloak to shield the
Administrator's
arbitrary
and
whimsical
decision, based on whims and caprice. It has
to be a decision by the primary decision maker,
that is to say, the Administrator taken bona fide to
qualify for a valid decision. It has to be one that is
free from the vice of arbitrariness and taken in
public interest. The assessment and conclusion
from the relevant and objective material to
judge public interest is the Administrator's
determination.
That
would
not
be
reassessed and trampled upon by the Court to
step into the Administrator's role as the
primary
decision
maker,
unless
the
Administrator's conclusion be perverse. (Para
21)

Nigam is in a precarious financial position. At the
same time, the Nigam is a public body charged
with the duty of managing water supply and
sewerage all over the State. The petitioner is a
Senior Engineer and experienced in the particular
nature of work, that is involved in the operations of
the Nigam. If the Nigam say that there has been a
reduction in the work force of their Class-A Officers
(which implies Engineers), it would certainly and
pre-eminently be the Nigam's decision to judge
whether public interest would suffer if the
petitioner is allowed to retire voluntarily and
abandon post. The petitioner is not an entry- level
Engineer or a fresh recruit, who can be replaced
with another like him at short notice and before his
scheduled retirement. Therefore, the discretion
exercised by the Nigam to refuse voluntary
retirement, cannot be said to be arbitrary,
whimsical, capricious or perverse. It is in public
interest, which does not warrant interference by
this Court. (Para 23)

Writ petition dismissed.( E-4)

Precedent followed:

St. of U.P. & ors. Vs Achal Singh, (2018) 17 SCC 578
(Para 18)

Precedent distinguished:

Radha Saran Vs The General Manager, Central Railways,
Bombay & anr., 1987 LAB. I.C. 716 (Para 11)

Present
petition
challenges
orders
dated
03.11.2020 and 24.02.2021, passed by Uttar
Pradesh Jal Nigam.

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
orders dated 03.11.2020 and 24.02.2021 passed
by the Uttar Pradesh Jal Nigam, refusing the
petitioner's notice to voluntarily retire from
service.

2. The petitioner is an Executive Officer in
the employ of the Uttar Pradesh Jal Nigam,
Lucknow. He is currently posted at the
Construction Division of the Nigam at Baghpat.
The petitioner completed the age of 59 years on
December the 13th, 2020, rendering by that time
more than 36 years of service. He was appointed
as a Junior Engineer on 22.09.1984 and in
course of time, was promoted to the post of an
Assistant Engineer. He was further promoted to
the post of an Executive Engineer, which he
current holds. The petitioner submitted a request
to the Managing Director of the Uttar Pradesh
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
Jal Nigam (for short, 'the Nigam') through an
application
dated
01.10.2020,
seeking
to
voluntarily retire from service, in exercise of his
right under the U.P. Fundamental Rule 56(c) of
the Financial Hand Book Vol. II (Parts II to IV).
The aforesaid Rules shall hereinafter be referred
to as 'the Rules'.

3. It was indicated in the application dated
01.10.2020 that the request may be regarded as
three months' notice to voluntarily retire from
service. The petitioner's notice to voluntarily
retire was rejected by the Nigam in terms of an
order of November the 3rd, 2020 passed by the
Secretary (Administration) to the Nigam. It was
said in the order that the petitioner's request was
considered, but was not acceded to in public
interest.

4. On 11th November, 2020, the petitioner
addressed another memo to the Managing
Director of the Nigam and requested a review of
the order dated 03.11.2020. It was said in the
memo/ representation dated 11.11.2020 that the
petitioner was finding himself unable to serve
the Nigam any further on account of his family
and personal circumstances and, therefore, the
employers may reconsider his request, seeking
voluntary
retirement,
sympathetically.
The
memo dated 11.11.2020 remained unresponded
to.

5. The petitioner then made another
application dated 02.12.2020, also addressed to
the Managing Director of the Nigam. Here, the
relevant provisions of Rule 56 of the Rules were
quoted and the Nigam were informed that the
petitioner had a right to retire voluntarily at the
end of three months' notice period under Rule
56(c). It was said in this application that the
three months' notice period would expire on
31.12.2020 and the petitioner would treat
himself retired from the Nigam's service w.e.f.
31.12.2020.
The
Managing
Director
was
requested to arrange transfer of charge by
nominating an Officer for the purpose. The
Superintending Engineer, First Division, U.P.
Jal Nigam, Meerut addressed a memo dated
29.12.2020 to the Chief Engineer (Rural Area),
U.P. Jal Nigam, Ghaziabad, apprising him of the
petitioner's request. It was also requested by the
Superintending Engineer that the Chief Engineer
may ensure acceptance of the petitioner's request
for voluntary retirement and make arrangement
for transfer of charge.

6. It is the petitioner's case that no Officer
was deputed to relieve him on 31.12.2020 by the
Nigam and he could not relinquish charge on the
said date. On the 24th of February, 2021, the
Secretary (Administration) to the Nigam passed
a further order, notifying the decision to reject
the petitioner's request for a review of the earlier
order dated 03.11.2020, declining the petitioner's
notice seeking voluntary retirement. The order
dated 24th February, 2021 indicated that the
petitioner's request has been refused in public
interest. The public interest was disclosed to be
the fact that in comparison to the month of
November, 2020, Officers working in the ClassA Cadre of the Nigam had witnessed a drastic
reduction in strength. It was mentioned that in
these circumstances, it was not possible to
accede to the petitioner's request for a voluntary
retirement from service.

7. Aggrieved by the orders dated
03.11.2020 and 24.02.2021 passed by the
Nigam, the petitioner has instituted the present
writ petition. He prays that both these orders be
quashed and the respondents ordered to relieve
him from service forthwith attended with a
direction to pay his full retirement benefits due
in accordance with the Rules.

8. This petition was instituted on
08.06.2021 and came up before the Court on
10.06.2021. The Court passed an order directing
the respondents to file a counter affidavit. The
petition was ordered to come up again on
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1231
12.07.2021. Between 12.07.2021 to 29.10.2021,
it drifted across six dates. During this period of
time, pending admission, the parties exchanged
affidavits. On 29.10.2021, this petition was
formally admitted to hearing. It was heard in
part on that day and adjourned to 01.11.2021. It
was heard further for remainder of the
submissions on 10.11.2021, when judgment was
reserved.

9. Heard Mr. Pradip Kumar Srivastava,
learned Counsel for the petitioner and Mr.
Rishabh Kapoor, learned Counsel appearing for
the respondents.

10. The thrust of Mr. Pradip Kumar
Srivastava's submission is that under Rule 56(c)
of the Rules, an employee is entitled to retire as
a matter of right at any time after attaining the
age of 45 years or after he has completed the
qualifying service of 20 years. He submits that
the petitioner is entitled to voluntary retirement
on both parameters. He was about two months
shy of his 59th birthday when he served the
notice of voluntary retirement dated 01.10.2020
and had put in, by that time, more than 36 years
of service. It is emphasized by Mr. Srivastava
that the only contingency under which a notice
of voluntary retirement may be refused is that
envisaged under the second proviso to Rule
56(d), which stipulates that a Government
servant, against whom disciplinary proceedings
are pending or contemplated, would have his
notice of voluntary retirement effective only if it
is accepted by the Appointing Authority. The
proviso further says that in case of contemplated
disciplinary proceedings against a Government
servant, who has served a notice of voluntary
retirement, shall be informed about the refusal of
his notice before expiry of the notice period.

11. The learned Counsel for the petitioner
has drawn the Court's attention to the provisions
of Rule 56 of the Rules and submitted that the
employers have no choice in the matter once a
notice of voluntary retirement is served and the
period of notice expires. It is emphasized that it
is not the Nigam's case that there are any
disciplinary
proceedings
pending
or
contemplated against the petitioner. Thus, the
action of the Nigam in refusing to accept the
petitioner's notice of voluntary retirement is
without jurisdiction. The petitioner must be
deemed to have retired on the expiry of the
period of three months of service of the notice
seeking voluntary retirement. In support of his
contention, Mr. Srivastava has relied upon the
decision of a Division Bench of this Court in
Radha Saran v. The General Manager,
Central Railways, Bombay and another, 1987
LAB. I. C. 716. In Radha Saran, it was held:

"8. From the facts discussed above it
is apparent that the authorities adopted a
negative approach in considering the application
of petitioner seeking voluntary retirement after
having rendered 27 years of service. Why was
this request opposed in absence of any
circumstance is indeed beyond comprehension.
The unreasonable attitude adopted by the
authorities which was not warranted in the
circumstances has resulted in inordinate delay in
granting pension and other benefits to petitioner.
The petitioner had to approach this Court for
relief and remedy which could have been easily
granted to him without any delay."

12. It is submitted by the learned Counsel
for the petitioner that in the present case too,
assuming that the Authorities have power to
decline a notice of voluntary retirement, there is
no justification to do so. Learned Counsel for the
petitioner has hastened to add that this
submission is not in derogation of his stand that
the Nigam have no authority under Rule 56(c) of
the Rules to decline a notice of voluntary
retirement. He adds, continuing on the second
line of his submission, that if the Nigam are held
to possess jurisdiction or authority to refuse the
petitioner's notice of voluntary retirement, the
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
decision in the absence of a cogent reason is
arbitrary.

13. It is argued by the learned Counsel for
the petitioner that 'public interest' is a word of
well acknowledged connotation, but with an
equally acknowledged reputation for its misuse
and abuse. He submits that the Nigam's financial
circumstances, that are not in dispute, show
them to be in dire financial straits, where they
are embarrassed with inability to regularly pay
salary and pension to their employees and exemployees. Learned Counsel for the petitioner
has drawn this Court's attention to assertions in
paragraph no.14 to the above effect, which have
not been denied by the Nigam. He has also
invited the Court's attention to a memo dated
27.03.2021 from the State Government to the
Nigam sanctioning an interest free loan in the
sum of Rs.72 crores to enable the Nigam to
disburse their employees' salaries and pensions.
It has been most persuasively urged by Mr.
Srivastava that the Nigam, placed in the
circumstances that they are, could hardly tout a
case of 'public interest' in support of their refusal
to accept an employee's request for voluntary
retirement.

14. Mr. Rishabh Kapoor, learned Counsel
for the Nigam, on the other hand, has refuted the
submissions of Mr. Srivastava with utmost
vehemence. He submits that the Nigam may not
be in the pink of financial health, but they are a
public undertaking charged with the duty of the
preparation, execution, promotion and financing
the schemes for the supply of water and for
sewerage and sewage disposal, amongst others,
in rural and urban areas. Supply of water in an
ordered and sustained manner is a concomitant
of the fundamental right to life guaranteed to all
citizens. The Nigam is engaged in the discharge
of duties corresponding to that fundamental right
of the citizens. It is submitted, therefore, that the
decision to retain a particular employee in
service or a class of their employees, so that the
Nigam can discharge its duties, has to be their
decision taken in public interest. It is submitted
that the Nigam, therefore, have to take a
decision on a case-to-case basis about the class
of employees or individuals, who are to be
retained in service in order to enable the Nigam
to discharge its functions.

15. About the jurisdiction of the Nigam to
refuse a notice of voluntary retirement, it is
submitted by Mr. Rishabh Kapoor that the Nigam
have an unfettered right to refuse the notice of
voluntary retirement so long as it is in public
interest. Mr. Kapoor urges that there has to be
some material to support the public interest, on
which the Nigam seek to base their decision. The
decision ultimately is one of the Nigam's and they
are the primary decision makers about the public
interest involved. The scope for judicial review is
very limited. It is argued by the learned Counsel
for the Nigam that in reading the provisions of
Rule 56(c), the way the learned Counsel for
petitioner urges this Court to do, the Explanation to
Rule 56(c) has been ignored. That Explanation,
according to Mr. Rishabh Kapoor, empowers the
Nigam to refuse a notice of voluntary retirement in
'public interest'.

16. The Court has carefully considered the
rival submissions advanced and perused the
record. In order to assess the worth of the
petitioner's case that the Nigam have no
jurisdiction or authority under Rule 56(c) of the
Rules to refuse a notice of voluntary retirement,
it would be gainful to refer to the provisions of
Rule 56 of the Rules. The relevant part of Rule
56 reads:

Financial Hand Book Vol. II (Parts II to
IV)

"CHAPTER
IX-COMPULSORY
RETIREMENT

56. (a) Except as otherwise provided in
this Rule, every Government servant other than
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1233
a Government servant in inferior service shall
retire from service on the afternoon of the last
day of the month in which he attains the age of
fifty eight years. He may be retained in service
after the date of compulsory retirement with the
sanction of the Government on public grounds
which must be recorded in writing, but he must
not be retained after the age of 60 years except
in very special circumstances.

(b) A Government servant in inferior
service shall retire from service on the afternoon
of the last day of the month in which he attains
the age of sixty years. He must not be retained in
service after that date, except in very special
circumstances
and
with
sanction
of
the
Government.

(c)
Notwithstanding
anything
contained in clause (a) or clause (b), the
appointing authority may, at any time by notice
to any Government servant (whether permanent
or temporary), without assigning any reason,
require him to retire after he attains the age of
fifty years or such Government servant may by
notice to the appointing authority voluntarily
retire at any time after attaining the age of fortyfive years or after he has completed qualifying
service of twenty years.

(d) The period of such notice shall be
three months:

Provided that-

(i) any such Government servant may
by order of the appointing authority, without
such notice or by a shorter notice, be retired
forthwith at any time after attaining the age of
fifty years, and on such retirement the
Government servant shall be entitled to claim a
sum equivalent to the amount of his pay plus
allowances, if any, for the period of the notice,
or as the case may be, for the period by which
such notice falls short of three months, at the
same rates at which he was drawing immediately
before his retirement;

(ii) it shall be open to the appointing
authority to allow a Government servant to
retire without any notice or by a shorter notice
without requiring the Government servant to
pay any penalty in lieu of notice:

Provided further that such notice
given by the Government servant against
whom a disciplinary proceeding is pending or
contemplated, shall be effective only if it is
accepted by the appointing authority, provided
that in the case of a contemplated disciplinary
proceeding the Government servant shall be
informed before the expiry of his notice that it
has not been accepted:

Provided also that the notice once
given by a Government servant under clause
(c) seeking voluntary retirement shall not be
withdrawn by him except with the permission
of the appointing authority.

(e) A retiring pension shall be
payable and other retirement benefits, if any,
shall be available in accordance with and
subject to the provisions of the relevant Rules
to every Government servant who retires or is
required or allowed to retire under this rule.

Provided that where a Government
servant who voluntarily retires or is allowed
voluntarily to retire under this rule the
appointing authority may allow him, for the
purposes of pension and gratuity, if any, the
benefit of additional service of five years or of
such period as he would have served if he had
continued till the ordinary date of his
superannuation, whichever be less;

Explanation.-(1) The decision of the
appointing authority under clause (c) to
require the Government servant to retire as
specified therein shall be taken if it appears to
the said authority to be in the public interest,
but
nothing
herein
contained
shall
be
construed to require any recital, in the order,
of such decision having been taken in the
public interest.

(2) In order to be satisfied whether it
will be in the public interest to require a
Government servant to retire under clause (c) the
appointing authority may take into consideration
any material relating to the Government servant
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
and nothing herein contained shall be construed
to exclude from consideration-

(a) any entries relating to any period
before such Government servant was allowed to
cross any efficiency bar or before he was
promoted to any post in an officiating or
substantive capacity or on an ad hoc basis; or

(b)
any
entry
against
which
a
representation is pending, provided that the
representation is also taken into consideration
along with the entry; or

(c) any report of the Vigilance
Establishment constituted under the Uttar
Pradesh Vigilance Establishment Act, 1965.

(2-A) Every such decision shall be
deemed to have been taken in the public interest.

(3)
The
expression
''appointing
authority' means the authority which for the time
being has the power to make substantive
appointments to the post or service from which
the Government servant is required or wants to
retire; and the expression ''qualifying service'
shall have the same meaning as in the relevant
Rules relating to retiring pension.

(4) Every order of the appointing
authority requiring a Government servant to
retire forthwith under the first proviso to clause
(d) of this rule shall have effect from the
afternoon of the date of its issue, provided that if
after the date of its issue, the Government
servant concerned, bona fide and in ignorance of
that order, performs the duties of his office his
acts shall be deemed to be valid notwithstanding
the fact of his having earlier retired."

17. If one were not to read beyond the
second proviso to Rule 56(c) & (d) of the Rules,
the contention of Mr. Srivastava could be
accepted. The provisions of Rule 56(c) together
with its three provisos, including the two subclauses of the first, make out a clear distinction
between a case of compulsory retirement by the
Government, which here would mean the
Nigam, on the one hand and a case of voluntary
retirement sought by an employee on the other.
The provision about the Government taking a
decision to compulsorily retire a Government
servant after he attains the age of 50 years, does
not envisage assignment of reason. It is a well
acknowledged principle that this power to
compulsorily retire a Government servant under
Rule 56(c) after he attains the age of 50 years, is
to be exercised by the Government or any other
employer, to whom the Rules are applicable in
public interest. However, the right of the
Government
servant/
employee
to
seek
voluntary retirement at any time after attaining
the age of 45 years or after he has completed the
qualifying service of 20 years, appears to be a
right, at the first blush, that can be exercised
unilaterally by the employee, with no right of
refusal with the Government/ employer. The
only ground that appears, if one were not to read
beyond the three provisos to Rule 56(d), is the
pendency or contemplation of disciplinary
proceedings against the Government servant. If
that be the case, there seems to be little quarrel
that a notice of voluntary retirement cannot be
declined.

18. The second part of the second proviso,
which says that in a case of contemplated
disciplinary
proceedings,
the
Government
servant shall be informed before the expiry of
his notice that it has not been accepted, seems to
reinforce the submission that the right to retire
voluntarily at the expiry of three months' notice,
is unqualified and unilateral, except in the case
of pendency or contemplation of disciplinary
proceedings. But, reading the provisions of Rule
56(c) this way, portrays half the picture.
Explanation (1) added to Rule 56(c) says that the
decision of the Appointing Authority under
clause (c) to require the Government servant to
retire, as specified therein, shall be taken if it
appears to the Authority that it is in public
interest so to do. Now, clause (c) of Rule 56
speaks both about compulsory retirement and
voluntary retirement. If one were to go by the
strict phraseology of the Explanation, the words
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1235
"require the Government servant to retire"
would seem to refer to the contingency of
compulsory retirement alone, and not voluntary
retirement. The petitioner seems to have thought
that this may not be said of voluntary retirement,
and perhaps, has led him to believe it to be so,
because ''requiring' the Government servant to
retire may possibly bear no reference to a case of
voluntary retirement, where the Government
servant opts to retire; and not ''required' to retire.
This construction placed upon the Explanation,
however, does not appear to be sound, because
the Explanation bears reference to clause (c) of
Rule 56 of the Rules as a whole. If there were
some avenue of doubt about it, the legal position
stands concluded in favour of the view that the
Explanation applies to cases both of compulsory
retirement as well as voluntary retirement, as
held by the Supreme Court in State of Uttar
Pradesh and others v. Achal Singh, (2018) 17
SCC 578. The precise question that fell for
consideration of their Lordships of the Supreme
Court in State of U.P. v. Achal Singh (supra)
may be best described by referring to paragraph
no.2 of the report:

"2. The main question for consideration
before us is as to whether under Rule 56 of the
Uttar Pradesh Fundamental Rules (hereinafter
referred to as "the Fundamental Rules") as
amended, an employee has unfettered right to
seek voluntary retirement by serving a notice of
three months to the State Government or
whether the State Government under the
Explanation attached to Rule 56 of the
Fundamental Rules, is authorised to decline the
prayer for voluntary retirement in the public
interest under clause (c) of Rule 56 of the
Fundamental Rules as applicable to the State of
Uttar Pradesh."

19. The controversy in State of U.P. v.
Achal Singh arose in the context of a notice of
voluntary retirement served by the Doctors of
the Provincial Medical Services, under Rule 56
of the Rules. The Doctors served notices on
various dates, seeking to voluntary retire from
service. Their applications remained pending
much beyond the period of three months, with
no orders passed. They then approached the
High
Court,
saying
that
their
voluntary
retirement has become effective at the expiration
of three months of service of notice under Rule
56(c), which this Court accepted on the
construction of Rule 56(c) and its provisos, the
way the petitioner wants this Court to do. The
State of Uttar Pradesh challenged the judgment
and order of the Division Bench of this Court
dated 27.11.2017 by Special Leave, that was
granted. Allowing the Appeal of the State of
Uttar Pradesh, in State of U.P. v. Achal Singh,
it was held:

"11. The Explanation attached to Rule 56
makes it clear that the decision of the appointing
authority under clause (c) of Rule 56 to retire a
government servant shall be taken if it appears
to be in public interest. The Explanation is
applicable to both the exigencies viz. when the
Government retires an employee or when an
employee seeks voluntary retirement, not only
when Government desires to retire an employee
in public interest. The Explanation attached to
Rule 56 as applicable in the State of Uttar
Pradesh is clear and precise.

14. It was submitted that despite the
absence of any identical language, the rule
involved in Dinesh Chandra Sangma [Dinesh
Chandra Sangma v. State of Assam, (1977) 4
SCC 441 : 1978 SCC (L&S) 7] is comparable
with the Uttar Pradesh Fundamental Rules and
therefore, the judgment is binding. The
submission based upon the same cannot be
accepted and Rules 56(b) and (c) came up for
consideration was somewhat different and there
was no such Explanation to Rule 56.

15. In Dinesh Chandra Sangma [Dinesh
Chandra Sangma v. State of Assam, (1977) 4
SCC 441 : 1978 SCC (L&S) 7] he was the
District and Sessions Judge at Dibrugarh in the
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Assam. On account of domestic
troubles, he did not want to continue after
attainment of the age of 50 years. He served a
notice under Rule 56(c) as amended by the
Governor of Assam under Article 309 of the
Constitution by the Notification dated 22-71975. The formal notice was served upon by
him. The Government allowed him to retire
from the State Government service and then
there were certain developments in the
Government and the Government sought to
retrace its steps and passed an Order on 28-71976, countermanding its earlier order allowing
him to retire from service. The High Court
dismissed the writ application filed by him. The
Fundamental Rule as applicable in the State of
Assam came up for consideration. In our
opinion, it was quite different. It is provided in
Fundamental Rule 56(b) as applicable in the
State of Assam that public interest was
germane when a government servant retires.
Under Rule 56(c), a government servant may
retire by giving notice of not less than three
months. Hence, it was observed that there was
no question of acceptance of the request for
voluntary retirement by the Government when
the government servant exercises his right
under Rule 56(c). Not only the Rule was
different it was passed on the concession also,
however, the Explanation given to Rule 56 in
the State of Uttar Pradesh makes it completely
different and the provisions in F.R. 56(c) are
also quite different. The rules as applicable in
Assam for the purpose of retirement by the
Government are contained in F.R. 56(b) which
require retirement in public interest whereas no
such rider exists in F.R. 56(c) when an
employee seeks voluntary retirement, whereas
rule in the State of Uttar Pradesh both
provisions are conjointly read, not only the
language is different and the Explanation
makes out the whole difference.

16. The Explanation attached to Rule 56 as
applicable in the State of Uttar Pradesh makes
it clear that when a decision is taken by the
authority under clause (c) of Rule 56, the right
of an employee to retire cannot be said to be
absolute as in the case of resignation, voluntary
retirement is with retiral benefits whereas it
may not necessarily follow in case of
resignation. The decision under the rules in
U.P. is to be based upon considering the public
interest, whether it is a case of retirement by
the Government or a case of a government
servant seeking voluntary retirement. The
decision rendered in Dinesh Chandra Sangma
[Dinesh Chandra Sangma v. State of Assam,
(1977) 4 SCC 441 : 1978 SCC (L&S) 7] is
distinguishable
and
was
based
on
the
differently couched rule. The Explanation
added makes the provisions different in the
State of Uttar Pradesh. The decision in Dinesh
Chandra Sangma [Dinesh Chandra Sangma v.
State of Assam, (1977) 4 SCC 441 : 1978 SCC
(L&S) 7] cannot be said to be operative being
quite distinguishable.

19. Reliance was also placed on the
decision rendered by this Court in State of
Bombay v. United Motors (India) Ltd. [State of
Bombay v. United Motors (India) Ltd., AIR
1953 SC 252] and Bengal Immunity Co. Ltd. v.
State of Bihar [Bengal Immunity Co. Ltd. v.
State of Bihar, AIR 1955 SC 661] , in which it
has been observed that Explanation can be read
as proviso and it explains the scope of the main
provision and the Explanation becomes part of
the main section. There is no dispute with the
aforesaid proposition. The Explanation in the
Rules in question has to be applied to both the
situations as contemplated in Rule 56(c) and is
applicable to both the exigencies not only when
the Government decides to retire an employee,
but also applicable where voluntary retirement is
sought by an employee. It cannot be said that no
further restriction by Explanation has been
added in a case where an employee has decided
to obtain voluntary retirement. The public
interest is the prime consideration on which
authority has to decide such a prayer as per the
rules applicable in the State of Uttar Pradesh.
11 All. Ravindra Singh Vs. U.P. Jal Nigam Lko. & Anr.
1237

27. In our considered opinion, under Rule
56 as applicable in the State of Uttar Pradesh,
notice of voluntary retirement does not come
into effect automatically on the expiry of the
three months' period. Under the Rule in
question, the appointing authority has to accept
the notice for voluntary retirement or it can be
refused on permissible grounds.

28. In our opinion, Rule 56(c) does not fall in
the category where there is an absolute right on the
employee to seek voluntary retirement. In view of
the aforesaid dictum and what is held by this
Court, we find that the prayer made to make a
reference to a larger Bench, in case this Court does
not follow the earlier decision is entirely devoid of
merit as on the basis of what has been held by this
Court in the earlier decisions, we have arrived at
the conclusion. This Court has authoritatively laid
down the law umpteen number of times.

33. There is no doubt about it that Rule 56(d)
provides that where a disciplinary enquiry is
pending or contemplated and in the case of
contemplated disciplinary enquiry, the government
servant shall be informed before the expiry of
notice that it has not been accepted. The proviso to
Rule 56(d) has no application where a disciplinary
enquiry is not contemplated or pending. When the
proviso itself is not applicable, in no case it will
dilute the provisions of the Explanation with
respect to exigencies mentioned in clause (c) of
Rule 56.

34. The submission made upon principle of
liberty and its curtailment, the law must be just,
fair and reasonable can also not be accepted as the
Fundamental Rules are statutory rules and have
been made by the Governor under Section
241(2)(b) of the Government of India Act, 1935
and the provisions of rule in question cannot be
said to be unfair, unreasonable and oppressive."

 (Emphasis by Court)

20. In view of the aforesaid holding of the
Supreme Court in State of U.P. v. Achal Singh
(supra), there cannot be any doubt that the
exercise of option to retire voluntarily is subject to
the Government/ employer's scrutiny and its
acceptance on the anvil of public interest. It is not
an absolute right of the employee that fructifies on
the expiry of three months' notice period under
Rule 56(c) of the Rules. Therefore, it has to be
held that the Nigam had authority and jurisdiction
to decline the petitioner's application/ notice to
retire voluntarily.

21. The second limb of the submission is
about the decision carried in the impugned orders
being vitiated by the vice of arbitrariness. Public
interest, that has been pleaded in justification of the
orders impugned, it is true, is no cloak to shield the
Administrator's arbitrary and whimsical decision,
based on whims and caprice. It has to be a decision
by the primary decision maker, that is to say, the
Administrator taken bona fide to qualify for a valid
decision. It has to be one that is free from the vice
of arbitrariness and taken in public interest. The
Administrator must act on relevant and objective
material. The assessment and conclusion from that
material
to
judge
public
interest
is
the
Administrator's determination. That would not be
re-assessed and trampled upon by the Court to step
into the Administrator's role as the primary
decision
maker,
unless
the
Administrator's
conclusion be perverse. This is a principle, too
well-acknowledged,
to
merit
any
further
elucidation.

22. Here, the consideration on which the
impugned orders are sought to be supported,
appears in a few but meaningful words carried
in the order dated 24.02.2021. These are
recorded in Hindi and read:

"माह नवम्बर 2020 की तुलना में धवभाग में समूह "क" के
कायमरत अधिकाररयोां की सांख्या में और कमी आयी है। ऐसी क्तस्थधत
मे आपकी स्वैक्तिक सेवाधनवृधि के अनुरोि को स्वीकार धकये
जाने का अवसर सक्षम प्राधिकारी द्वारा पररलधक्षत नहीां पाया गया
हैं। तद्नुसार आपको अवगत कराया जाता है।"

23. The parties at ad idem about the fact
that the Nigam is in a precarious financial
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
position. At the same time, the Nigam is a public
body charged with the duty of managing water
supply and sewerage all over the State. The
petitioner is obviously a Senior Engineer and
experienced in the particular nature of work, that
is involved in the operations of the Nigam. If the
Nigam say that there has been a reduction in the
work force of their Class-A Officers (which
implies Engineers), it would certainly and preeminently be the Nigam's decision to judge
whether public interest would suffer if the
petitioner is allowed to retire voluntarily and
abandon post. It also cannot be ignored that the
petitioner is not an entry-level Engineer or a
fresh recruit, who can be replaced with another
like him at short notice and before his scheduled
retirement. Therefore, in the circumstances, the
discretion exercised by the Nigam to refuse
voluntary retirement, cannot be said to be
arbitrary, whimsical, capricious or perverse.