# Smt. Archana Paliwal v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-18
- **Case number:** Special Appeal No. 101 of 2022
- **Bench:** Manoj Misra, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-archana-paliwal-v-state-of-u-p-ors-49110
- **Pages:** 6

## Headnote

A. Service Law - Voluntary Retirement - U.P.
Fundamental Rule 56 - Clause (d) of Rule 56
prescribes the notice period as three months
but, by clause (ii) of the Proviso to clause
(d) of Rule 56, the appointing authority is
empowered to allow a Government servant
to retire without any notice or by a shorter
notice without requiring him/ she/it to pay
any penalty in lieu of notice. The appointing
authority could allow a Government servant to
retire voluntarily even if the notice period is shorter
than three months albeit subject to fulfillment of
other conditions enabling exercise of the right to
seek voluntary retirement. (Para 9)

In the instant case, application was submitted
on 06.04.2008 and voluntary retirement was
sought from 30.06.2018. Admittedly, the notice
period was less than three months therefore,
the appointing authority was required to accept
the request to allow the petitioner to retire.
Notably, the Rule does not prescribe the
time limit for acceptance of the retirement
notice. (Para 10)

In the present circumstances, the issue
whether acceptance was required before
30.06.2018 would have to be addressed
on the same principles which govern
acceptance of an offer, that is, whether
there
was
any
indication
from
the
petitioner that the offer to retire was
acceptable up to 30.06.2018 and not later.
The affidavit, dated 06.04.2018, filed by
the appellant along with the voluntary
retirement application/notice spells out
an
unqualified
offer/desire
to
retire
without specifying a date by which it
should be accepted. There is no indication
either in the application or in the affidavit that if
the offer is not accepted by a certain period it
be treated as withdrawn. Thus, the notice
seeking
voluntary
retirement
extended
a
standing offer to retire with effect from
30.06.2018 which could have been accepted by
the appointing authority till such time it was
withdrawn with the permission of the appointing
authority as per the provisions of the second
proviso to clause (ii) of Rule 56 (d) of the
Fundamental Rules. (Para 10)

B. As by the second proviso to clause (ii) of
Rules 56 (d) of the Fundamental Rule a
voluntary retirement notice cannot be
withdrawn save with the permission of
the appointing authority, there can be no
implied withdrawal of the notice by
rendering
service
beyond
30.06.2018
simply for the reason that the notice
period was less than three months, hence
an acceptance of the offer was required to
terminate
the
employer-employee
relationship. Till such time that relationship
subsisted, the incumbent was obliged to serve
the employer and, therefore, taking such service
would not amount to waiver of employer's right
to accept the standing offer. For the reasons
above, we are of the considered view that there
existed no legal impediment for the
appointing
authority
to
accept
the
voluntary retirement notice after the date
from which retirement was sought. (Para
10)

The learned Single Judge has clarified in its
order that any salary for the subsequent period,
if paid to the petitioner, shall not be recovered/
withdrawn from her and, further, the authority
shall ensure that retiral benefits are released to
the
petitioner
by
treating
her
to
have
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuated with effect from 30.06.2018.
(Para 11)

Special appeal dismissed. (E-4)

Present
intra
court
appeal
assails
judgment and order of the learned Single
Judge dated 09.11.2021 passed in Writ A
No. 20146 of 2019 whereby appellant
sought quashing of the order accepting
the prayer of the writ petitioner for
voluntary retirement from service w.e.f.
30.06.2018 and a direction upon the
opposite
party
to
decide
petitioner's
representation for cancellation of the
acceptance order (dated 09.05.2019), has
been dismissed.

## Text

1 All. Smt. Archana Paliwal Vs. State of U.P. & Ors.
1199
---------
(2023) 1 ILRA 1199
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 101 of 2022

Smt. Archana Paliwal ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Jai Prakash Prasad

Counsel for the Respondents:
C.S.C.

A. Service Law - Voluntary Retirement - U.P.
Fundamental Rule 56 - Clause (d) of Rule 56
prescribes the notice period as three months
but, by clause (ii) of the Proviso to clause
(d) of Rule 56, the appointing authority is
empowered to allow a Government servant
to retire without any notice or by a shorter
notice without requiring him/ she/it to pay
any penalty in lieu of notice. The appointing
authority could allow a Government servant to
retire voluntarily even if the notice period is shorter
than three months albeit subject to fulfillment of
other conditions enabling exercise of the right to
seek voluntary retirement. (Para 9)

In the instant case, application was submitted
on 06.04.2008 and voluntary retirement was
sought from 30.06.2018. Admittedly, the notice
period was less than three months therefore,
the appointing authority was required to accept
the request to allow the petitioner to retire.
Notably, the Rule does not prescribe the
time limit for acceptance of the retirement
notice. (Para 10)

In the present circumstances, the issue
whether acceptance was required before
30.06.2018 would have to be addressed
on the same principles which govern
acceptance of an offer, that is, whether
there
was
any
indication
from
the
petitioner that the offer to retire was
acceptable up to 30.06.2018 and not later.
The affidavit, dated 06.04.2018, filed by
the appellant along with the voluntary
retirement application/notice spells out
an
unqualified
offer/desire
to
retire
without specifying a date by which it
should be accepted. There is no indication
either in the application or in the affidavit that if
the offer is not accepted by a certain period it
be treated as withdrawn. Thus, the notice
seeking
voluntary
retirement
extended
a
standing offer to retire with effect from
30.06.2018 which could have been accepted by
the appointing authority till such time it was
withdrawn with the permission of the appointing
authority as per the provisions of the second
proviso to clause (ii) of Rule 56 (d) of the
Fundamental Rules. (Para 10)

B. As by the second proviso to clause (ii) of
Rules 56 (d) of the Fundamental Rule a
voluntary retirement notice cannot be
withdrawn save with the permission of
the appointing authority, there can be no
implied withdrawal of the notice by
rendering
service
beyond
30.06.2018
simply for the reason that the notice
period was less than three months, hence
an acceptance of the offer was required to
terminate
the
employer-employee
relationship. Till such time that relationship
subsisted, the incumbent was obliged to serve
the employer and, therefore, taking such service
would not amount to waiver of employer's right
to accept the standing offer. For the reasons
above, we are of the considered view that there
existed no legal impediment for the
appointing
authority
to
accept
the
voluntary retirement notice after the date
from which retirement was sought. (Para
10)

The learned Single Judge has clarified in its
order that any salary for the subsequent period,
if paid to the petitioner, shall not be recovered/
withdrawn from her and, further, the authority
shall ensure that retiral benefits are released to
the
petitioner
by
treating
her
to
have
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuated with effect from 30.06.2018.
(Para 11)

Special appeal dismissed. (E-4)

Present
intra
court
appeal
assails
judgment and order of the learned Single
Judge dated 09.11.2021 passed in Writ A
No. 20146 of 2019 whereby appellant
sought quashing of the order accepting
the prayer of the writ petitioner for
voluntary retirement from service w.e.f.
30.06.2018 and a direction upon the
opposite
party
to
decide
petitioner's
representation for cancellation of the
acceptance order (dated 09.05.2019), has
been dismissed.

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Jai Prakash Prasad for
the appellant and the learned Standing
Counsel for the respondents.

2. This intra court appeal is against
the judgment and order of the learned
Single Judge dated 09.11.2021 passed in
Writ A No. 20146 of 2019 whereby the
writ petition of the appellant seeking
quashment of the order accepting the
prayer of the writ petitioner for voluntary
retirement from service with effect from
30.06.2018 and a direction upon the
opposite
party
to
decide
petitioner's
representation for cancellation of the
acceptance order, has been dismissed.

3. The facts of the case have been
succinctly narrated in paragraph 2 of the
impugned judgment therefore instead of
restating those facts we deem it appropriate
to reproduce the said paragraph below:-

"2. Facts, as have been pleaded
in the writ petition, are that petitioner was
a staff nurse and was posted in District
Bijnor. After the State of Uttarakhand was
created, she was permitted to opt for State
of
Uttar Pradesh
vide
order dated
26.12.2008. The petitioner, consequently,
joined on 18.2.2009 at Saharanpur. She
submitted an application for voluntary
retirement alongwith which she also
submitted an affidavit clearly stating that
she is no longer desirous of serving the
State and her application for voluntary
retirement be accepted. The application
form annexed alongwith the affidavit made
a request to retire the petitioner voluntarily
w.e.f. 30.6.2018. No orders apparently
were passed on this application and the
petitioner was allowed to continue till the
month of October. It is by the order
impugned
that
petitioner's
voluntary
retirement
has
been
accepted
w.e.f.
30.6.2018. It is after passing of the
impugned order that petitioner who was
residing in State of Uttarakhand made a
request to recall the order on the ground
that she be permitted to serve the employer.
"

4. Before the learned Single Judge,
two grounds were pressed, namely, (a) that
an application, under Fundamental Rule
56(c), seeking voluntary retirement would
require a minimum three month's notice
whereas the application submitted by the
writ petitioner on 06.04.2008 sought
voluntary retirement from 30.06.2018,
which was less than three months,
therefore, the same was defective and could
not have been acted upon; and (b) that the
acceptance order dated 09.05.2019 could
not have directed retirement with effect
from 30.06.2018.

5. The state-respondents contested the
petition by claiming that no prayer was
made to withdraw the application seeking
1 All. Smt. Archana Paliwal Vs. State of U.P. & Ors.
1201
voluntary retirement before its acceptance
therefore,
once
the
application
was
accepted, there was no occasion for the writ
petitioner (the appellant herein) to have a
grievance in respect thereof.

6. The learned Single Judge upon
noticing the provisions of Fundamental
Rule 56 (c) and (d) observed that the period
of notice provided in Fundamental Rule
56(c) is for the benefit of the appointing
authority whereas, by virtue of sub clauses
(i) and (ii) of clause (d) of Rule 56 of the
Fundamental
Rules,
the
appointing
authority is empowered to retire the
Government servant on a shorter notice or
forthwith and, for the period by which such
notice is short, the Government servant is
entitled to pay plus allowances at the same
rates at which he was drawing immediately
before his retirement. Thus, even if the
notice period was shorter than three months
it did not make it defective. The learned
Single Judge also noticed the second
proviso to sub-clause (ii) of clause (d) of
Rule 56 of the Fundamental Rules which
provided that the notice once given by a
Government Servant under clause (c)
seeking voluntary retirement can not be
withdrawn except with the permission of
the appointing authority. Having noticed
those provisions, the learned Single Judge
held that as there existed no dispute with
regard to service of retirement notice on the
appointing authority and there existed no
material to indicate that a prayer to
withdraw the notice was made before its
acceptance, there was no merit in the writ
petition,
particularly,
when
the
writ
petitioner was not made to refund salary
received for the period she worked after
30.06.2018.

7. The learned counsel for the appellant
has not questioned the contents of the
Fundamental Rule 56 (c) and (d) quoted by
the learned single Judge though he claimed
that the learned Single Judge overlooked that
the voluntary retirement application dated
06.04.2018 sought retirement with effect
from 30.06.2018 and if it was not accepted
till 30.06.2018, and the writ petitioner was
allowed to work and receive salary thereafter,
the same could not have been accepted. In the
alternative, it was argued that since the
petitioner
rendered
her
services
after
30.06.2018, by her conduct, she withdrew her
notice/application
seeking
voluntary
retirement and, by accepting work from the
petitioner and making payment of salary to
her, the appointing authority impliedly
granted permission to withdraw the notice
and waived its right to act upon the notice.

8. To appropriately appreciate the
above submission, it would be useful to
notice the relevant provisions of UP
Fundamental Rule 56. Clause (a) of Rule
56 deals with the age of superannuation of
a Government servant; clauses (a-1) and (a2) deals with extension of service; clause
(b) has been omitted; clauses (c) & (d) of
Rule 56 are relevant for the case, hence
they are being reproduced below:-

"56
(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 forty
five years or after he has completed
qualifying service of twenty years.

(d) -- The period of such notice
shall be three months:
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

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 allowance, 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 the notice:

Provided further that such notice
given by the Government servant against
whom
a
disciplinary
proceedings
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 withdrawn by him except with the
permission of the appointing authority."

9. A plain reading of clause (c) of
Rule 56 would reflect that it has two parts.
In its first part, it empowers the appointing
authority
to
compulsorily
retire
a
Government servant, whereas, in its second
part, it confers a right on the Government
servant to seek voluntary retirement subject
to certain conditions. As we are dealing
with a case where the petitioner (the
appellant herein) had sought voluntary
retirement, we are concerned with the
second part. In respect thereof, the Rule
provides that a Government servant may by
notice to the appointing authority seek
voluntary retirement at any time after
he/she/it has attained the age of forty five
years or completed qualifying service of
twenty years. Clause (d) of Rule 56
prescribes the notice period as three months
but, by clause (ii) of the Proviso to clause
(d) of Rule 56, the appointing authority is
empowered to allow a Government servant
to retire without any notice or by a shorter
notice without requiring him/ she/it to pay
any penalty in lieu of notice. Meaning
thereby that the appointing authority could
allow a Government servant to retire
voluntarily even if the notice period is
shorter than three months albeit subject to
fulfilment of other conditions enabling
exercise of the right to seek voluntary
retirement. The proviso to clause (ii) of the
proviso to clause (d) of Rule 56 throws a
hint as to from which date the notice
seeking voluntary retirement
will be
effective by providing that 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 disciplinary proceeding the
Government servant shall be informed
before the expiry of his notice that it has
not been accepted. Meaning thereby that
where disciplinary proceeding is neither
pending nor contemplated, the notice
would become effective on expiry of the
period provided in Rule 56(d), which is of
three months. If the period provided by the
notice is less than three months then, by
1 All. Smt. Archana Paliwal Vs. State of U.P. & Ors.
1203
virtue of clause (ii) of the first proviso to
clause (d) of Rule 56, the appointing
authority may have to pass an order
allowing the Government servant to retire
within that shorter period.

10. In the instant case, admittedly, the
notice period was less than three months
therefore, the appointing authority was
required to accept the request to allow the
petitioner to retire. But whether the order of
acceptance had to be passed within that
period
and
not
later,
needs
to
be
determined. Notably, the Rule does not
prescribe the time limit for acceptance of
the retirement notice. Although, where
disciplinary
proceedings
are
pending
against the retirement seeker, the notice
would
become
effective
only
when
accepted provided that in the case of
contemplated disciplinary proceeding, the
notice giver would have to be informed
within the period of the notice that it has
not been accepted. In this case, it is not
shown that any disciplinary proceeding was
either pending or contemplated against the
writ
petitioner.
Consequently,
the
appointing authority was not under an
obligation to inform the petitioner about
non-acceptance of the notice within the
period
provided
therein.
In
these
circumstances,
the
issue
whether
acceptance was required before 30.06.2018
would have to be addressed on the same
principles which govern acceptance of an
offer, that is, whether there was any
indication from the petitioner that the offer
to retire was acceptable up to 30.06.2018
and not later. In that context, on perusal of
the record, we find that the retirement
application/notice is silent in that regard. It
only seeks voluntary retirement with effect
from 30.06.2018. The affidavit, dated
06.04.2018, filed by the appellant along
with
the
voluntary
retirement
application/notice spells out an unqualified
offer/desire to retire without specifying a
date by which it should be accepted. There
is no indication either in the application or
in the affidavit that if the offer is not
accepted by a certain period it be treated as
withdrawn. Thus, the notice seeking
voluntary retirement extended a standing
offer to retire with effect from 30.06.2018
which could have been accepted by the
appointing authority till such time it was
withdrawn with the permission of the
appointing authority as per the provisions
of the second proviso to clause (ii) of Rule
56 (d) of the Fundamental Rules. As by the
second proviso to clause (ii) of Rules 56 (d)
of the Fundamental Rule a voluntary
retirement notice cannot be withdrawn save
with the permission of the appointing
authority,
there
can
be
no
implied
withdrawal of the notice by rendering
service beyond 30.06.2018 simply for the
reason that the notice period was less than
three months, hence an acceptance of the
offer was required to terminate the
employer-employee relationship. Till such
time
that
relationship
subsisted,
the
incumbent was obliged to serve the
employer and, therefore, taking such
service would not amount to waiver of
employer's right to accept the standing
offer. For the reasons above, we are of the
considered view that there existed no legal
impediment for the appointing authority to
accept the voluntary retirement notice after
the date from which retirement was
sought.

11 . In view of the discussion above,
we do not find any error in the judgment
and order of the learned Single Judge.
More so, because the learned Single Judge
has clarified in its order that any salary for
the subsequent period, if paid to the
petitioner,
shall
not
be
recovered/
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
withdrawn from her and, further, the
authority shall ensure that retiral benefits
are released to the petitioner by treating her
to have superannuated with effect from
30.06.2018.

12. Before parting, we may notice that
the learned Single Judge in paragraph 14 of
the judgment, which remains un-rebutted,
has found another reason to non-suit the
petitioner.
The
said
paragraph
is
reproduced below:-

"14.
At
this
stage,
learned
Standing Counsel points out that petitioner
has also filed a subsequent Writ Petition
No.63782 of 2019, in which she was
permitted to make representation and the
same has also been rejected on 26.10.2020.
This subsequent order is not under
challenge. Once the claim of petitioner for
voluntary retirement is found to have been
accepted for valid reasons, any subsequent
attempt to seek its recall would otherwise
not be permissible in law. "

13. We are in respectful agreement
with the above view and for this reason
also, the appellant is not entitled to any
relief in this appeal.

14. The special appeal is dismissed.
----------
(2023) 1 ILRA 1204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 167 of 2014

Bhawani Prasad Sahu & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Durga Prasad Dwivedi, Sri Ashutosh
Shahi, Sri Sharad Dwivedi

Counsel for the Respondents:
C.S.C.

A. Service Law - Discrimination of pay
scale - If two departments are under
control
of
one
Government
and
employees are having similar duty, no
discrimination can be made in their
salary and both sets of employees would
be governed by principal of 'equal pay
for equal work.'

Irrigation Department
and PWD are the
department of State of U.P., having equal status
headed by the Principal Secretary appointed by
the State Government. Petitioners as well as
generator operator of Irrigation Department are
performing same duty of running the generator
of over and above of 50 KVA. There is also no
difference in appointment procedure and nature
of work of petitioners and generator operators
of Irrigation Department. (Para 12)

B. While considering the case of 'equal pay
for equal work', mode of recruitment,
qualification for the post, nature of work,
value of work & responsibilities involved
and various other factors have to be taken
into consideration and Court can only
interfere where there is discrimination
between two sets of employees appointed
by the State Government. (Para 14)

Here, there is no dispute that both the
departments have equal status. Once the
employer is same, mode of recruitment,
qualification for the post, nature of work and
other responsibilities are same, Court has full
authority to interfere in the matter and such
employees shall be governed by principal of
'equal pay for equal work', and there cannot be
any denial of similar pay scale on any ground.
(Para 16)

Writ petitions allowed. (E-4)