# Surendra Kumar Shukla v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Service Single No. 22782 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-shukla-v-state-of-u-p-ors-44813
- **Pages:** 10

## Headnote

A. Service Law - Voluntary Retirement -
Financial Handbook, Vol. II, Part II to
IV: Regulation 56 - The authority cannot
use
the
application
of
voluntary
retirement to Compulsorily retire an
employee.

Application
withdrawing
application
of
voluntary retirement was rejected, levelling
allegations
of
misconduct
and
serious
indiscipline against the petitioner. (Para 15)

B. Service Law - Voluntary Retirement and
Resignation.
Application
for
voluntary
retirement and resignation should be
unconditional. It may be withdrawn, before
its acceptance. However, in the case of
voluntary retirement, the said withdrawal
would be permissible subject to the
prescription of law as applicable but it is
not the case regarding resignation. (Para 10)

Petition allowed (E-4)

Precedent followed: -

## Text

3 All. Surendra Kumar Shukla Vs. State of U.P. & Ors.
199
denying the allegations levelled against
them has also not been considered.
Explanation of petitioners, on merits,
denying
the
allegations
have
been
discarded by observing that they are not
satisfactory. However, no reasons are
given as to why petitioners' explanations
is found unsatisfactory. No inquiry has
otherwise been conducted to prove the
charges. The reasons to reject petitioners
reply, in the facts and circumstances of
the case, is found to be absolutely cryptic
and arbitrary.

36. In light of the discussions made
above, this Court finds that the impugned
action is wholly arbitrary, unreasonable
and unsustainable in law. Consequently,
order impugned dated 26th June, 2019,
passed by the Senior Superintendent of
Police, Prayagraj, cannot be sustained and
is quashed. The writ petitions are,
accordingly, allowed.

37. The petitioners shall submit an
unconditional apology and would also
submit an undertaking not to indulge in any
form of protest of this kind in future. If such
an undertaking is submitted alongwith
certified copy of this order, the appointing
authority shall pass appropriate orders by
taking a sympathetic view in the matter, in
light of the observations made above, for
petitioners to complete their ongoing
training. It would be open for the
respondents to shift the petitioners to any
other training centre as also recommended
by the fact finding committee. Needful
orders in that regard would be passed within
six weeks from the date of presentation of
certified copy of this order.

38. In the facts of the present case
the parties shall bear their own costs.
----------
(2019)11ILR A199

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.11.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 22782 of 2019

Surendra Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailendra Singh Rajawat

Counsel for the Respondents:
C.S.C.

A. Service Law - Voluntary Retirement -
Financial Handbook, Vol. II, Part II to
IV: Regulation 56 - The authority cannot
use
the
application
of
voluntary
retirement to Compulsorily retire an
employee.

Application
withdrawing
application
of
voluntary retirement was rejected, levelling
allegations
of
misconduct
and
serious
indiscipline against the petitioner. (Para 15)

B. Service Law - Voluntary Retirement and
Resignation.
Application
for
voluntary
retirement and resignation should be
unconditional. It may be withdrawn, before
its acceptance. However, in the case of
voluntary retirement, the said withdrawal
would be permissible subject to the
prescription of law as applicable but it is
not the case regarding resignation. (Para 10)

Petition allowed (E-4)

Precedent followed: -
1. Dr. Prabha Atri Vs St. of U.P. & ors. (2003) 1
SCC 701 (Para 11)
200 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Balram Gupta Vs U.O.I. & anr. (1987)
(Supp.) SCC 228 (Para 12)
Precedent distinguished: -
1. Poonam Garg Vs IFCI Venture Capital Funds
Ltd. Thru. its M.D. & ors. W.P. (C) 9304/2019
& C.M. No. 38360/2019 (stay) (Para 13)
Present petition challenges order dated
10.07.2019,
passed
by
Settlement
Officer
of
Consolidation,
District
-
Unnao.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri S.S. Rajawat, learned
counsel for the petitioner and Sri Ran
Vijay
Singh,
learned
Addl.
Chief
Standing Counsel for opposite parties
no.1 to 4.

2. In view of the proposed order,
notice to opposite party no.5 is hereby
dispensed with.

3. By means of this petition, the
petitioner has assailed the order dated
10.7.2019 passed by the Settlement
Officer of Consolidation, District - Unnao
whereby the application of the petitioner
dated
18.6.2019
withdrawing
the
application for voluntary retirement dated
23.5.2019
has
been
rejected
and
application for voluntary retirement dated
23.5.2019 has been accepted.

4. The petitioner has submitted his
application for voluntary retirement on
23.5.2019,
which
is
contained
in
Annexure No.7 to the writ petition. Said
application
is
an
unconditional
application. Thereafter, the competent
authority has issued a letter dated
24.5.2019 to the petitioner, which is
contained in Annexure No.9 to the writ
petition,
directing
the
petitioner
to
indicate the period as to when he is
willing to be retired voluntarily. In the
said application, it has categorically been
indicated that if the petitioner does not
indicate the period, he shall be deemed to
be retired w.e.f. 22.8.2019 i.e. after expiry
of three months' period w.e.f. 23.5.2019.
Thereafter, the petitioner submitted an
application
on
18.6.2019
prior
to
22.8.2019, withdrawing his voluntary
retirement application dated 23.5.2019. In
said
application,
the
petitioner
has
narrated so many facts and circumstances
but at the end he requested that since his
voluntary retirement application has not
been
accepted
by
the
department,
therefore, the said application may not be
accepted. After receiving the aforesaid
application dated 18.6.2019, the authority
competent has passed the order dated
10.7.2019,
which
is
contained
in
Annexure No.1 to the writ petition,
rejecting the application of the petitioner
dated
18.6.2019
whereby
he
had
withdrawn
his
voluntary
retirement
application dated 23.5.2019.

5. Submission of learned counsel for
the petitioner is that while rejecting the
application
of
the
petitioner
dated
18.6.2019, the authority competent has
dealt such application of the petitioner, by
means of the impugned order, as if the
application for compulsory retirement is
being dealt with inasmuch as so many
allegations have been levelled against the
petitioner regarding his work, conduct
and performance of duties. The impugned
order goes to the extent that considering
the entire service record of the petitioner
and his work and conduct, he should not
be retained in Government service,
however no separate proceedings to that
3 All. Surendra Kumar Shukla Vs. State of U.P. & Ors.
201
effect have ever been drawn against the
petitioner. In the aforesaid backdrop, the
impugned rejection order dated 10.7.2019
which has been passed by the competent
authority appears to have exercised his
jurisdiction in a whimsical and arbitrary
manner,
therefore,
the
order
dated
10.7.2019 may be quashed.

6. Per contra, Sri Ran Vijay Singh
has referred the relevant provision, which
deals compulsory retirement i.e. Rule 56
of the Financial Hand Book, Volume II,
Part II to IV. Sri Singh has referred
Clauses (c) and (d) of the aforesaid
Regulation 56, which are as under:-

"(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 50 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 had completed
qualifying service of 20 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 50 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 rates at which he was
drawing them 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
in 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."

7. Sri Singh has submitted that the
second proviso of Regulation 56 (d)
categorically provides that notice once
given by the Government servant under
Clause (c) seeking voluntary retirement
shall not be withdrawn by him except with
the permission of the appointing authority
and since in the case in hand, the appointing
authority has not found any plausible reason
to accept the withdrawal application of the
petitioner, therefore, rejected the same vide
order dated 10.7.2019. As per Sri Singh,
there is no infirmity or illegality in the order
dated 10.7.2019.

8. Sri Ran Vijay Singh, learned
Addl. Chief Standing Counsel has also
202 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that Annexure No.3 to the writ
petition is a letter preferred by the
petitioner directly to the Chief Minister,
which is misconduct on the part of the
petitioner. Sri Singh has further submitted
with vehemence that the petitioner has not
withdrawn his application for voluntary
retirement vide letter dated 18.6.2019
unconditionally but has indicated so many
conditions casting aspersions on the
superior
authorities,
therefore,
the
authority concerned has passed the order
dated
10.7.2019
considering
those
circumstances and facts.

9. Having heard learned counsel for
the parties and having perused the
relevant material available on record, I
am of the considered opinion that the
authority competent has not passed the
order
dated
10.7.2019
strictly
in
accordance with law and he has dealt the
issue of resignation/ voluntary retirement
as if it is an issue of compulsory
retirement.

10. The case in hand is a case of
voluntary
retirement.
Sometimes
voluntary retirement and resignation are
taken in a similar way. Both the
resignation and the voluntary retirement
expressed the voluntary desire of an
employee to cease his/ her occupation and
all duties that go along with it. They may
result from number of reasons, including
personal grievances or a disability that
prevents the satisfactory completion of
work.
Neither,
however,
inherently
conveys any sense of wrong doing. Both
exist strategies require one to provide
advance written notice to the employer,
with a final day of service that is clearly
delineated and unconditional. Therefore,
one thing is for sure that the application
for voluntary retirement and resignation
should be unconditional and before the
said application is accepted, it can be
withdrawn. However, in the case of
voluntary retirement, the said withdrawal
would be permissible subject to the
prescription of law as applicable but it is
not
the
case
regarding
resignation.
Further, the touchstone and thumb rules
in both the cases may largely be similar
while considering a particular issue.

11. In the case of resignation, the
law is settled that resignation must be
unconditional and having intention to
operate as such in view of the dictum of
the Hon'ble Apex Court in re; Dr.
Prabha Atri v. State of U.P. and others,
(2003) 1 SCC 701. In the present case,
the
withdrawal
application
of
the
petitioner is unconditional, therefore, it
qualifies this test. This analogy may be
accepted in case of voluntary retirement.

12. Secondly, resignation can be
withdrawn before the same has been
accepted by the competent authority. In
the instant case, the application of the
petitioner regarding voluntary retirement
had not been accepted and it was deemed
to be accepted w.e.f. 22.8.2019 i.e. the
period of three months from tendering
such application but the petitioner has
withdrawn
his
said
application
on
18.6.2019. The Hon'ble Apex Court in re;
Balram Gupta v. Union of India and
another, 1987 (Supp) SCC 228, has
considered
more
or
less
identical
circumstance and held in para-13 as
under:-

"13. We hold, therefore, that
there was no valid reason for withholding
the permission by the respondent. We
hold
further
that
there
has
been
compliance with the guidelines because
3 All. Surendra Kumar Shukla Vs. State of U.P. & Ors.
203
the appellant has indicated that there was
a change in the circumstances, namely,
the persistent and personal requests from
the staff members and relations which
changed his attitude towards continuing
in Government service and induced the
appellant to withdraw the notice. In the
modern and uncertain age it is very
difficult to arrange one's future with any
amount of certainty, a certain amount of
flexibility is required, and if such
flexibility
does
not
jeopardize
Government
or
administration,
administration should be graceful enough
to
respond
and
acknowledge
the
flexibility of human mind and attitude and
allow the appellant to withdraw his letter
of
retirement
in
the
facts
and
circumstances
of
this
case.
Much
complications which had arisen could
have been thus avoided by such graceful
attitude. The court cannot but condemn
circuitous
ways
"to
ease
out"
uncomfortable employees. As a model
employer the government must conduct
itself with high probity and candour with
its employees."

13. The competent authority could
have passed any order indicating other
reasons except those which have been
considered in the impugned order relating
to appreciation of his service records,
work and conduct etc. of the petitioner.
Had
the
petitioner
been
retired
compulsorily under Regulation 56, the
findings of competent authority vide
order dated 10.7.2019 would have been
justified but this is a case of voluntary
retirement, which was withdrawn by the
employee before it has been accepted,
therefore, the findings of impugned order
dated
10.7.2019
are
absolutely
unwarranted and uncalled for. The High
Court of Delhi has considered more or
less identical issue in re; Poonam Garg
Vs. IFCI Venture Capital Funds Ltd.
through its Managing Director &
others, W.P. (C) 9304/2019 & C.M.
No.38360/2019 (stay) following various
dictums of the Hon'ble Apex Court on the
subject, which has been decided on
27.9.2019 and paragraphs 16, 17, 18, 19,
20 & 21 are relevant for the present issue,
which are being quoted herein below:-

"16. The question as to when an
employee can be allowed to withdraw his
request for resignation or voluntary
retirement and the employer"s right to
reject such request for withdrawal has
been considered by the Supreme Court
from time to time and the common thread
running through all these decisions is that
in normal circumstances, an employee
can withdraw its resignation before it
comes into effect or operation. In this
regard, reference may be made to
paragraph 41 of Union of India Vs.
Gopal Chandra Misra (1978) 2 SCC 301.

"41. The general principle that
emerges from the foregoing conspectus, is
that in the absence of anything to the
contrary in the provisions governing the
terms and conditions of the office/post, an
intimation
in
writing
sent
to
the
competent authority by the incumbent, of
his intention or proposal to resign his
office/post from a future specified date
can be withdrawn by him at any time
before it becomes effective, i.e. before it
effects termination of the tenure of the
office/post or the employment."

17.The Apex Court in Air India
Express
Limited
and
Ors.
Vs.
Gurdarshan Kaur Sandhu 2019 (11)
SCALE 310 has in paragraph 17 of its
decision, after considering its earlier
204 INDIAN LAW REPORTS ALLAHABAD SERIES
decisions in Gopal Chandra Misra
(supra), Balram Gupta (supra), Punjab
National Bank Vs. P.K. Mittal 1989 Supp
(2) SCC 175 and J.N. Srivastava (supra),
summarised the circumstances in which
withdrawal of a request for voluntary
retirement can be permitted by observing
as under:

"17. It is thus well settled that
normally, until the resignation becomes
effective, it is open to an employee to
withdraw his resignation. When would the
resignation become effective may depend
upon the governing service regulations
and/or the terms and conditions of the
office/post. As stated in paragraphs 41 and
50 in Gopal Chandra Misra, "in the absence
of anything to the contrary in the provisions
governing the terms and conditions of the
office/post" or "in the absence of a legal
contractual
or
constitutional
bar,
a
"prospective resignation" can be withdrawn
at any time before it becomes effective".
Further, as laid down in Balram Gupta, "If,
however, the administration had made
arrangements acting on his resignation or
letter of retirement to make other employee
available for his job, that would be another
matter."

18. The petitioner's application
for voluntary retirement, having been
made in accordance with paragraph 33 of
the Regulations, as also the fact that the
contentions raised by both sides revolve
around the language of paragraphs
33(2)(i), (ii) and (v), it would be apposite
to reproduce the same for the facility of
reference.
The
relevant
extracts
of
paragraphs 33 (2)(i), (ii), (iii) and (v) of
the Regulations read as under:-

"33.
Superannuation
and
Retirement ........................

(2)

(i) An employee who has
attained the age of 50 years shall have an
option to retire anytime thereafter by
giving to the Company three months'
notice in writing.

(ii) Without prejudice to the sub
regulation 2(i), the employee of the
Company may voluntary retire at any
time after the completion of 20 years of
qualifying service (even though he has not
attained the age of 50 years), after giving
to the competent authority three months
notice in writing. Provided that this sub
regulation shall not apply to an employee
who is on deputation or study leave
abroad,
unless
after
having
been
transferred or having returned to India,
he has resumed the charge of the post in
India and served for a period of not less
than one year.

Provided further that this sub
regulation, shall not apply to an employee
who seeks retirement from service for
being
absorbed
permanently
in
an
autonomous body or a public sector
undertaking to which he is on deputation
at
the
time
of
seeking
voluntary
retirement.

(iii) The notice or voluntary
retirement given under sub-Regulation
(ii) shall not be valid unless it is accepted
by the Competent Authority, Provided
that where the Competent Authority does
not communicate its decision not to
accept such notice before the expiry or
period specified in the notice, the
retirement shall become effective from the
date of expiry of such period.

.............................

(v) An employee, who has
elected to voluntarily retire, pursuant to
3 All. Surendra Kumar Shukla Vs. State of U.P. & Ors.
205
sub-Regulation 2 (ii) and has given notice
for the purpose, shall not be entitled to
withdraw the notice, except with the
permission of the Competent Authority,
provided that the request for such
withdrawal shall be made before the
intended date of his retirement."

19. The petitioner has, by
placing reliance on paragraph 33(2)(v),
contended that the Regulations clearly
envisage that an employee seeking
voluntary retirement would be entitled to
withdraw the said request subject to such
withdrawal being made prior to the
intended date of retirement. On the other
hand, the respondents have vehemently
contended
that
the
petitioner"s
application for voluntary retirement was
covered under paragraph 33(2)(i) of the
Regulations which entitles an employee to
seek withdrawal of its request for
voluntary retirement; it is only cases
governed by paragraph 33(2)(ii) when an
application seeking withdrawal of an
earlier request can be entertained by the
management, but even this withdrawal is
subject
to
the
permission
of
the
Competent Authority. The respondents
have,
therefore,
contended
that
no
employee has an absolute right to seek
withdrawal
of
his
application
for
voluntary retirement. Upon a careful
perusal of the Regulations, I am unable to
accept the respondents" contentions that
paragraph 33(2)(v) is not applicable to
cases where voluntary retirement has
been sought under paragraph 33(2)(i).
Once paragraph 33(2)(ii) states in no
uncertain terms that it operates without
prejudice to the provisions of paragraph
33(2)(i), it is evident that any request for
withdrawal envisaged under paragraph
33(2)(v) would include requests for
voluntary retirement made under both
paragraphs
33(2)(i)
and
(ii)
and,
therefore, the respondents" plea that the
petitioner was not entitled to seek
withdrawal under Paragraph 33(2)(v) is
wholly unmerited.

20. In any event, even if the
respondents"
plea
that
paragraph
33(2)(v) of the Regulations was not
applicable to paragraph 33(2)(i) were to
be accepted, it would only imply that
there is no provision in the Regulations
dealing with the withdrawal of an
application
made
under
paragraph
33(2)(i) while an application made under
paragraph 33(2)(ii) can be withdrawn
subject to conditions prescribed in
paragraph 33(2)(v). Thus, as per the case
sought to be pleaded by the respondent,
once there is no specific provision for
withdrawal of an application made under
paragraph 33(2)(i), a necessary corollary
thereof is that there is neither any specific
bar nor any conditions attached to
seeking withdrawal of a request for
voluntary
retirement
made
under
paragraph
33(2)(i).
In
these
circumstances,
any
requests
for
withdrawal of an application made under
paragraph 33(2)(i) would necessarily be
covered by general principles which
provide that even in the absence of any
specific provision in the regulations, an
employee can seek withdrawal of his
request for resignation or voluntary
retirement. Reference in this regard may
be made to the observations of the
Supreme
Court
as
contained
in
paragraph 8 in P.K. Mittal (supra),
which read as under:-

"8. The result of the above
interpretation
is
that
the
employee
continued to be in service till 21-4-1986
or 30-6- 1986, on which date his services
206 INDIAN LAW REPORTS ALLAHABAD SERIES
would have come normally to an end in
terms of his letter dated 21-1-1986. But,
by that time, he had exercised his right to
withdraw the resignation. Since the
withdrawal letter was written before the
resignation
became
effective,
the
resignation stands withdrawn, with the
result that the respondent continues to be
in the service of the bank. It is true that
there is no specific provision in the
regulations permitting the employee to
withdraw the resignation. It is, however,
not necessary that there should be any
such specific rule. Until the resignation
becomes effective on the terms of the
letter read with Regulation 20, it is open
to the employee, on general principles, to
withdraw his letter of resignation. That is
why, in some cases of public services, this
right of withdrawal is also made subject
to the permission of the employer. There
is no such clause here. It is not necessary
to labour this point further as it is well
settled by the earlier decisions of this
Court in Raj Kumar v. Union of India
[(1968) 3 SCR 857 : AIR 1969 SC 180 :
1969 Lab IC 310] , Union of India v.
Gopal Chandra Misra [(1978) 3 SCC 301
: 1978 SCC (L&S) 303 : (1978) 3 SCR
12] and Balram Gupta v. Union of India
[1987 Supp SCC 228 : 1988 SCC (L&S)
126]"

21. Thus, when looked at from
any angle it is evident that the petitioner
was well within her right to seek
withdrawal of her request for voluntary
retirement before its effective date. If
paragraph 33(2)(v) is taken as not being
applicable to the petitioner"s case, then
her request had to be considered as per
the general principles laid down by the
Supreme
Court,
which
as
noted
hereinabove prescribe that a request for
resignation can be withdrawn anytime
before
it
becomes
effective.
The
petitioner"s voluntary retirement was to
be effective from 07.09.2019, not only as
per her application but even as per the
alleged acceptance of the respondent. Her
withdrawal application, therefore, having
been made much earlier, was liable to be
accepted. On the other hand, if paragraph
33(2)(v) is taken as being applicable to
the petitioner"s case, the only rider
therein is that the leave of the Competent
Authority was required before seeking
such withdrawal, but as rightly contended
by the petitioner the Competent Authority
cannot be permitted to exercise its
discretion in this regard in a wholly
whimsical and arbitrary manner. The
petitioner has served the Company for 24
years without any complaint whatsoever
against her and had been promoted as a
General Manager, yet its impugned order
assigns
no
reason
whatsoever
for
rejecting her request. There is also no
reason as to why the Company should not
permit the petitioner to seek withdrawal
of her request, especially since she sought
the same within barely 6 days of her
making the application for voluntary
retirement. It is not even the case of the
Company that they had appointed any
new person to assume the duties of the
petitioner or had in any manner invested
in training any new employee for the post
which she was holding. Merely because
the respondent No.1 had issued an order
on 11.06.2019 redistributing the duties of
its employees, would not be a ground to
deprive the petitioner of the right
available to her under law. Once the
Company"s Regulations do not require an
employee to provide reasons at the time
of seeking voluntary retirement or seeking
withdrawal
thereof,
the
petitioner"s
failure to provide any reasons either at
the time of submitting her application
3 All. Surendra Kumar Shukla Vs. State of U.P. & Ors.
207
seeking voluntary retirement or while
seeking withdrawal thereof cannot be a
ground
to
reject
her
request
for
withdrawal. In the facts of the present
case, when the withdrawal was sought
within a short span of time when neither
any new personnel had been appointed
nor any substantial reorganisation of
personnel had been carried out by the
Company, the rejection of the petitioner"s
request for withdrawal was wholly
unjustified. Even the contention of the
respondents
that
the
petitioner
is
habituated
to
requesting
voluntary
retirement as a manner of protesting her
transfer
remains
unsubstantiated
as
nothing has been placed on record in
support thereof."

14. Before the Delhi High Court the
relevant rule applicable in the case was
cited in Regulation 33 of the Regulations
and Sub-clause (v) of Regulation 33 is
pari materia of second proviso of Subclause (d) of Regulation 56 and the Delhi
High Court has dealt the issue and has
found that such condition may not be
treated as rider if the application for
voluntary retirement is withdrawn before
its acceptance. In the said case before the
Delhi High Court, while rejecting the
application of that petitioner whereby
resignation was withdrawn no condition
was imposed, however, in the present
case those conditions have been imposed,
which could have not been imposed while
disposing of the issue of voluntary
retirement. Therefore, it appears that
discretion of the competent authority
rejecting the application of the petitioner
dated 18.6.2019 is wholly whimsical and
arbitrary.

15. Before parting with, it is
needless to say that if the petitioner has
shown serious indiscipline in his entire
service career as his application dated
18.6.2019 and that application which has
directly been addressed to the Chief
Minister are an example of gross
indiscipline as per learned counsel for the
opposite parties, any appropriate orders
can be passed by the authority concerned
but strictly in accordance with law,
however,
while
disposing
of
the
application
for
withdrawal
of
the
application of voluntary retirement, his
entire service record and his behaviour,
work and conduct may not be appreciated
in a manner as if it is a case of
compulsory retirement. The separate
mode has been prescribed if the order of
compulsory retirement is passed. The
authority cannot use the application of
voluntary retirement for retiring the
employee compulsorily.

16. In view of the above, the order
dated 10.7.2019 passed by opposite party
no.4 is not sustainable in the eyes of law
and liable to be quashed. Accordingly, the
order dated 10.7.2019 passed by opposite
party no.4 is hereby quashed.

17. The liberty is given to the
opposite parties to pass a fresh order
strictly in accordance with law within a
period of six weeks from the date of
production of certified copy of this order.

18. A writ in the nature of
mandamus is issued commanding the
opposite parties to permit the petitioner
forthwith to continue on the post in
question on which he was discharging his
duties before submitting his application
for voluntary retirement and pay him his
salary and other consequential services
benefits with promptness, say within a
period of four weeks, as per law.
208 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The writ petition is accordingly
allowed.

20. No order as to costs.
----------

(2019)11ILR A208

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI , J.

Service Single No.28414 of 2019

Sanjay Tewari ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Mishra, Sri Ghufran
Hussain, Sri Vineet Bihari Patel.

Counsel for the Respondents:
C.S.C., Sri Puneet Chandra.

A. Service Law- Disciplinary Proceedings
- Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999 -
Rule 7(IV); U.P Fundamental Rules: Rule
56(a) - Commencement of Departmental
Enquiry. Service or dispatch through
permissible mode of service and not
preparation or signing of the chargesheet would constitute commencement
of the Disciplinary Proceedings.

Whether a retired public servant can be visited
with a charge- sheet in his afternoon of his
last working day in office when he is
understood to have retired? Merely for the fact
that the charge sheet is dated a day prior to
the date of retirement, would not amount to
the initiation of the disciplinary proceedings
unless a copy thereof was duly served upon
the petitioner or at least the same was
dispatched to him through the permissible
mode of service. (Para 6, 18, 21). The
issuance of charge-sheet in relation to an
occurrence having taken place after more than a
year of petitioner's transfer would stand vitiated
for want of service before 12 O'clock on
28.02.2019 (date of retirement) and sending the
charge-sheet by e-mail in the afternoon was thus
hit by a jurisdictional error. (Para 15)

B. Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999:
Rule 7(IV) - None of the punishments
envisaged under Rules 1999 would at all stand
attracted in a situation where a public servant
has retired from service. Therefore, the
purpose of initiating disciplinary proceedings
under the Rules 1999 cannot be allowed to
travel to invade upon the protection which the
Rules provide for a retired public servant.
(Para 10, 14)

C. Civil Service Regulations: Regulation
351-A - Once a public servant has
retired, the proceedings can be initiated
only by following the procedure under
Regulation 351-A of the Civil Service
Regulations, provided there is no bar -

The disciplinary proceedings with the issuance
of charge-sheet treating him a public servant
was erroneous and invades upon the power of
Governor. (Para 21)

Petition allowed (E-4)

Precedent followed: -
1. Special Director & anr. Vs Mohd. Ghulam
Ghouse & anr. (2004) 3 SCC 440 (Para 4)

2. U.O.I. & anr. Vs Kunisetty Satyanarayana
(2006) 12 SCC 28 (Para 4)

3. Vijay Pal Singh Vs St. of U.P. & 3 ors. Writ-A
No. 11382 of 2015 (Para 4)

4. U.O.I. & ors. Vs Dinanath Shantaram
Karekar & ors. (1998) 16 LCD 1274 (Para 12,
21)
Precedent distinguished: -
1. State of M.P. Vs. Onkar Chand Sharma,
(2001)
9
SCC
171
(Para
19)