# Satish Kumar v. U.P. Jal Vidyut Nigam Limited and others

- **Citation:** (2012) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-28
- **Bench:** Rajiv Sharma, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-kumar-v-u-p-jal-vidyut-nigam-limited-and-others-42137
- **Pages:** 4

## Text

1 All] Satish Kumar V. U.P. Jal Vidyut Nigam Limited and others

127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE S.C. CHAURASIA, J.

Writ Petition No. 232 of 2012 (S/B)

Satish Kumar

...Petitioner
Versus
U.P. Jal Vidyut Nigam Limited and others

 ...Opposite parties

Constitution
of
India,
Article
226
Voluntary Retirement-petitioner working
as
Asst.
Engineer
out
of
sheer
frustration-on
14/15.12.2011
send
notice
seeking
voluntary
retirement
w.e.f.
29.02.2012-in
meantime
16.01.2012 changed his mind applied for
withdrawal of said notice-rejected on
ground without approval it can not be
withdrawn-held-illegal-till
29.02.2012
petitioner was in service and during this
period can very well withdraw earlier
application
dated
14/15.12.2011approval not required.

Held: Para 17

Considering the well settled position of
law, we are of the view that though
there is discretion with the respondent
not to permit the employee to withdraw
his notice of voluntary retirement as
provided under the Regulation but that
discretion needs to be exercised only if
there are cogent and valid grounds
available
with
the
Department.
In
absence of any valid and cogent grounds
available and without assigning any
reasons
worth
the
name,
the
respondent-Corporation, in the present
case, could not have refused permission
to the petitioner to withdraw his notice
of voluntary retirement.
Case law discussed:
[(1989) 9 SCC 559]; [(1998) 5 SCC 461];
[(1997) 4 SCC 280]

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard Sri S.K. Kalia, Senior
Advocate, assisted by Sri Vidhu Bushan
Kalia, learned Counsel for the petitioner and
Sri Nirad Kumar, learned Counsel for the
opposite parties.

2. As the pleadings have already been
exchanged between the parties, with the
consent of learned counsel for the parties,
the writ petition is being disposed of at the
admission stage itself.

3. Through the instant writ petition
under Article 226 of the Constitution of
India, the petitioner has questioned the
validity and correctness of the order dated
2nd February, 2012
passed by the
Chairman-cum-Managing Director, U.P. Jal
Vidyut Nigam Limited, contained in
Annexure No.1 to the writ petition, retiring
the petitioner from service w.e.f. 29.2.2012
on the basis of his application for voluntary
retirement.

4. In short, facts of the case are that
the petitioner was initially appointed on the
post of Assistant Engineer in U.P. State
Electricity Board. On account of his
satisfactory services, he was promoted in
due course as Executive Engineer in
January, 2001 while working on a
deputation post in U.P. Jal Vidyut Nigam
Limited. Vide order dated 11.5.2010, the
services of the petitioner were merged in
U.P. Jal Vidyut Nigam Limited [hereinafter
referred to as "Nigam"]. While working at
Hydel Generation Circle, Pipari, District
Sonebhadra as In-charge Superintending
Engineer,
the
petitioner
moved
an
application dated 14/15.11.2011, praying
therein that he may be voluntarily retired
w.e.f.
29.2.2012.
On
16.1.2012,
the
petitioner changed his mind and withdrew
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

his earlier application dated 14/15.11.2011,
seeking voluntary retirement.

5. Counsel for the petitioner has
vehemently argued that the Chairman-cumManaging Director, without considering the
application dated 16.1.2012, moved by the
petitioner
withdrawing
his
earlier
application for voluntary retirement, passed
the impugned order dated 2.2.2012, retiring
the petitioner w.e.f. 29.2.2012.

6. Inviting our attention towards the
U.P. State Electricity Board (Employees
Retirement) Regulation, 1975 [hereinafter
referred to as "Regulation"], Counsel for
the petitioner submits that the said
Regulation would mutatis mutandis apply to
the employees of Nigam. As per provisions
of Regulation, 1975, as amended in the year
1993, an employee can opt voluntary
retirement and as such, the petitioner had
submitted an application for voluntary
retirement from a future date specified in
the notice, but before that date, the
petitioner reconsidered his decision and
withdrew
his
request
for
voluntary
retirement, which is legally permissible.
The opposite party No.1, while passing the
impugned order, has not applied its
independent mind as the impugned order
does not speak even a single word about the
letter dated 16.1.2012 by which the
petitioner withdrew the voluntary retirement
notice.

7. Lastly, it has been submitted that
the notice for voluntary retirement was
given out of sheer frustration and mental
disturbances but when good sense and
mental peace prevailed, the petitioner
withdrew the voluntary retirement notice
before the date of retirement but the same
was not considered and remained pending.

8. Refuting the submissions made by
Counsel for the petitioner, Counsel for the
Corporation submitted that the request dated
16.1.2012 of the petitioner withdrawing his
voluntary retirement dated 14/15.11.2011
was considered simultaneously and the
competent/appointing authority, vide Office
Memorandum No. 88 dated 2.2.2012, while
accepting his voluntary retirement notice
granted
voluntary
retirement
w.e.f.
29.2.2012 in accordance with U.P. State
Electricity Board (Employees' Retirement)
Regulations, 1975 read with U.P. State
Electricity Board (Employees, Retirement
Second Amendment) Regulations, 1993.

9. While placing reliance upon Rule 2
(c) (ii) of the U.P. State Electricity Board
(Employees,
Retirement
Second
Amendments) Regulations, 1993, learned
Counsel
has
submitted
that
the
competent/appointing
authority
after
considering the merits and demerits of the
case accepted the voluntary retirement of
the petitioner in accordance with the Rule 2
(c) (ii) of the Regulation, 1993. He submits
that the competent authority is fully
empowered to accept
or reject the
withdrawal of voluntary retirement of any
employee and as such, the voluntary
retirement order was issued on 2.2.2012 but
the same was made effective on 29.2.2012
(afternoon) as per notice of the petitioner.

10. Voluntary retirement is an option
given to a public servant to retire from
service on the fulfillment terms and
conditions. The three categories rule
relating to voluntary retirement are:-

(a)
where
voluntary
retirement
automatically comes into force on expiry of
notice period.
1 All] Satish Kumar V. U.P. Jal Vidyut Nigam Limited and others

129

(b) where retirement comes into force
unless an order is passed during the notice
period
withholding
permission
to
retirement.

(c) Voluntary retirement does not
come into force unless permission to this
effect is granted by the competent authority.

11. Since the retirement becomes
effective from the date mentioned in the
notice, an employee is entitled to withdraw
the notice before that date. The right of
employee to withdraw his request for
premature retirement cannot be defeated
arbitrarily as in modern era, a certain
amount of flexibility is required if such
flexibility does not jeopardize government
or administration. Therefore, the authorities
should be graceful enough to respond and
acknowledge the flexibility of human mind
and attitude and allow a government servant
to withdraw his letter of retirement.

12.

Having
considered
the
submissions advanced by the Counsel for
the parties and perusing the relevant
regulations, we are of the view that a
government servant is at liberty, and
entitled independently to withdraw his
notice
of
voluntary
retirement.
The
Corporation is absolutely silent so far as the
reason for not permitting the petitioner to
withdraw his notice for voluntary retirement
is concerned. In the counter affidavit the
respondents have made a feign attempt to
improve their case by stating that the
application for withdrawal of notice was
considered but in the impugned order there
is not a single word to this effect and as
such we are unable to accept the assertion of
the respondents' Counsel. To refuse the
request of the petitioner, respondent had to
have strong reasons and valid grounds. It is
not disputed that though it was the
discretion of the authorities whether to
accept such request or not, such discretion
cannot be exercised arbitrarily, as has been
held by the Supreme Court in catena of
decisions. The germane question was
whether there were any grounds to decline
the request of the petitioner to withdraw the
notice of voluntary retirement. Regulation
also specifies that, if the officer wants to
withdraw the notice of voluntary retirement,
it would be permissible only with the
approval of the competent authority.

13. Thus, we are of the view that the
stand which has been taken by the
respondent-Corporation is not tenable in
law. Petitioner had a right to withdraw his
notice of voluntary retirement before the
actual effective date comes into force. This
issue stands squarely covered by the
Hon'ble Supreme Court's decision in the
matter of Balram Gupta Vs. Union of India
and anr. reported in AIR 1987 Supreme
Court page 2354. In Balram Gupta's case,
the appellant-employee offered to retire
voluntarily from service w.e.f. 31st March,
1981 and accordingly sent a letter within the
notice period. However, he changed his
mind and sent a letter on 31.01.1981
seeking to withdraw his notice of voluntary
retirement, but the request was disallowed
by the concerned authority on the ground
that the withdrawal of notice could only be
with the specific approval of the authority.
The Apex Court held that the dissolution of
the contract of employment would be
brought about only on the date indicated i.e.
31.03.1981 and upto that date the appellant
continued as Government employee. He is
at liberty to withdraw his notice of
voluntary retirement and for this purpose,
prior approval is not required.

14. The decision in J.N. Srivastava
versus Union of India [(1998) 9 SCC 559]
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

is also to the same effect. This Court held as
follows:-

"It is now well settled that even if the
voluntary retirement notice is moved by an
employee and gets accepted by the authority
within the time fixed, before the date of
retirement is reached, the employee has
locus poenitentiae to withdraw the proposal
for voluntary retirement. The said view has
been taken by a Bench of this Court in the
case of Balram Gupta versus Union of
India."

15. In Nand Keshwar Prasad versus
Indian Farmers Fertilizers Cooperative
Ltd. & Ors. [(1998) 5 SCC 461], in
paragraph 11, the Apex Court reiterated that
it is open to the employee concerned to
withdraw letter before the date indicated in
the notice of voluntary retirement.

16. In Power Finance Corporation
Ltd. versus Pramod Kumar Bhatia
[(1997) 4 SCC 280] the Apex Court went a
step further and observed thus:-

"It is now settled legal position that
unless the employee is relieved of the duty,
after acceptance of the offer of voluntary
retirement or resignation, jural relationship
of the employee and the employer does not
come to an end."

17. Considering the well settled
position of law, we are of the view that
though there is discretion with the
respondent not to permit the employee to
withdraw his notice of voluntary retirement
as provided under the Regulation but that
discretion needs to be exercised only if
there are cogent and valid grounds available
with the Department. In absence of any
valid and cogent grounds available and
without assigning any reasons worth the
name, the respondent-Corporation, in the
present case, could not have refused
permission to the petitioner to withdraw his
notice of voluntary retirement.

18. For the reasons aforesaid, the writ
petition is allowed, the impugned order
dated 2.2.2012 (Annexure-1) passed by the
Chairman-Cum-Managing
Director
is
hereby quashed. The petitioner shall be
deemed to be in service and shall be
allowed to function on the post in question.
However, it will be open for the authorities
to consider the application for withdrawal of
notice sent by the petitioner in light of the
observations made hereinabove, if they so
desire.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA,J.

Service Single No. - 378 of 2012

Mohd. Azam Khan

 ...Petitioner
Versus
State of U.P.Through Secy. Deptt. of
Irrigation Lko. & others ...Respondents

Counsel for the Petitioner:
Sri Abdul Moin
Sri Abhinav N.Trivedi

Counsel for the Respondents:
C.S.C.

Irrigation
Department
Service
Rules
1954-Rule
8(ii)-readwith
U.P.
Public
Services
(Removal
Age
Limit
for
Promotion)
Rules
1975
Rule-2Promotion
on
Post
of
Seench
Parvekshak-juniors promoted, but claim
of Petitioner rejected as rossed 45 yearswhile
by
letters
dated
27.03.2010
Superintendent Engineer directed the