# U.O.I. & Ors v. Dharmendra Kumar Sahu

- **Citation:** (2025) 2 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-17
- **Case number:** Writ-A No.1940 of 2025
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-ors-v-dharmendra-kumar-sahu-52999
- **Pages:** 5

## Headnote

Voluntary Retirement-Tribunal directed the
petitioners to grant the voluntary retirement to
the Respondent on expiry of statutory period of
90 days -and to pay him all retiral dues-review
rejected-recall rejected-present Writ- Petitioner
sought voluntary retirement on the ground that
he is not keeping good health-previously two
punishment
already
given
owing
to
his
unauthorized
absence
from
duty
-that
punishment does not provided that the periods
of his absence shall not be counted in his
service or that he shall not be paid salary for
those periods-no other adverse consequence
will follow due to the respondent's absence for
the aforesaid period.

W.P. dismissed. (E-9)

## Text

2 All. U.O.I. & Ors. Vs. Dharmendra Kumar Sahu
437
an affidavit that if the allegations are found
to be untrue, a legal action could be taken
against him.
16. In above circumstances, not
only the impugned order is set aside, but it
is directed that Secretary, Secondary
Education, will initiate criminal proceeding
against complainant who has filed bogus
application against the petitioners which
not only led an illegal impugned order but
the
petitioners
were
constrained
to
approach this Court also and details of
complainant are as follows :-

"Bhupendra Singh
Village- Suroti, Tehsil - Acchanera
District- Agra"

17. The DIOS concerned is put on
caution that he is required to pass orders
without any pressure and without giving
any unnecessary interpretation of the orders
passed by the Court without seeking any
clarification, if so warrant.

18. The complainant is not before this
Court,
however,
it
is
directed
that
respondent - 1 will issue notice to him to
seek explanation as to why not a cost of Rs.
1,00,000/- be imposed on him as his
complaint has not only invited impugned
order but has troubled the petitioners who
were peacefully discharging their duties for
last more than two decades.

19. The impugned order is set aside
and its legal consequence will follow and
writ petition stands disposed of with above
observations and directions.

20. Registrar (Compliance) to take
steps.
----------
(2025) 2 ILRA 437
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No.1940 of 2025

U.O.I. & Ors. ...Petitioners
Versus
Dharmendra Kumar Sahu ...Respondent

Counsel for the Petitioners:
Ajit Kumar Dwivedi

Counsel for the Respondent:

Voluntary Retirement-Tribunal directed the
petitioners to grant the voluntary retirement to
the Respondent on expiry of statutory period of
90 days -and to pay him all retiral dues-review
rejected-recall rejected-present Writ- Petitioner
sought voluntary retirement on the ground that
he is not keeping good health-previously two
punishment
already
given
owing
to
his
unauthorized
absence
from
duty
-that
punishment does not provided that the periods
of his absence shall not be counted in his
service or that he shall not be paid salary for
those periods-no other adverse consequence
will follow due to the respondent's absence for
the aforesaid period.

W.P. dismissed. (E-9)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri S. B. Pandey, the
learned Deputy Solicitor General of India
assisted by Shri Ajit Kumar Dwivedi, the
learned counsel for the petitioners and Shri
Amit Verma, the learned Counsel for the
respondent.
438 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of the instant Writ
Petition filed under Article 226 of the
Constitution of India, the petitioners have
assailed validity of the order dated
04.08.2023 passed by the learned Central
Administrative Tribunal, Lucknow in O.A.
No.332/00254/2021. The petitioners had
filed
Review
Application
No.
332/00006/2024 for review of the judgment
and
order
dated
04.08.2023,
which
application has been rejected by means of
an order dated 05.07.2024. Thereafter, the
petitioners filed an application for recall of
the order dated 05.07.2024, which too has
been rejected by means of an order dated
10.01.2025.
The
petitioners
have
challenged the validity of all the aforesaid
orders by means of this Writ Petition.

3. The respondent had filed an
application seeking voluntary retirement
due to health issues. When no orders were
passed on that application, he had filed the
aforesaid original application seeking a
direction to the authorities to take an
appropriate decision on his application
seeking voluntary retirement.

4. In paragraph 4.2 of the original
application,
the
opposite
party
has
specifically pleaded that he has completed
more than 22 years of service. The
petitioners have filed a counter affidavit
before the Tribunal wherein they admitted
the aforesaid plea taken by the opposite
party in his original application. It was
stated in the counter affidavit that the
respondent had been awarded two minor
punishments vide order dated 19.02.2020.
The first punishment of stoppage of an
annual
increment
for
one
year
got
completed on 30.06.2021 and the second
punishment
of
stoppage
of
annual
increment for one year and two months got
completed on 30.08.2020, due to which his
application for voluntary retirement could
not be considered and it does not deserve to
be accepted.

5. The Tribunal allowed the original
application and directed the petitioners to
allow the request of the opposite party for
grant of voluntary retirement on expiry of
statutory period of 90 days with effect from
06.03.2021 and to pay him all retiral dues.

6. A review application filed by the
petitioners was also rejected.

7. Thereafter the petitioners filed an
application for recall of the order dated
05.07.2024, wherein they raised this plea
for the first time that the opposite party has
not completed 22 years of qualifying
service, which is a prerequisite for
accepting
the
request
for
voluntary
retirement as per the provisions contained
in Clause 11.1 of the master circular.

8. The learned D.S.G.I. has submitted
that
the
petitioner
has
remained
unauthorizedly absent from service for a
considerably long period of time and the
effective service rendered by him is of 18
years 5 months and 24 days only. The
period during which the opposite party
remained unauthorizedly absent from duty
cannot be treated as a period during which
he was in service. He has next submitted
that
an
Office
Memorandum
dated
26.02.2010 issued by the Government of
India makes a mention of some orders
issued by the Comptroller and Auditor
General, which reads as under: -

"5.
The
consequences
and
procedure to be followed in respect of an
officer who is absent from duty without any
authority has been brought out under FR
17(1) and 17-A. As per FR 17-A(iii)
2 All. U.O.I. & Ors. Vs. Dharmendra Kumar Sahu
439
without prejudice to the provisions of rule
27 of the Central Civil Services (Pension)
Rules, 1972, remaining absent without any
authority or deserting the post, shall be
deemed to cause an interruption or break
in the service of the employee, unless
otherwise
decided
by
the
competent
authority for the purpose of leave travel
concession,
quasi-permanency
and
eligibility for appearing in department
examinations, for which a minimum period
of continuous service is required.

6.
Comptroller
and
Auditor
General have issued orders that the period
of absence not covered by grant of leave
shall have to be treated as "dies non" for
all purposes, viz., increment, leave and
pension. Such absence without leave where
it stands singly and not in continuation of
any authorized leave of absence will
constitute an interruption of service for the
purpose of pension and unless the pension
sanctioning authority exercises its powers
under
Article
421,
Civil
Service
Regulations [now Rule 27 of the CCS
(pension) rules] to treat the period as leave
without allowance, the entire past service
will stand forfeited."

9.
Clause
5
of
the
Office
Memorandum dated 26.02.2010 provides
that remaining absent without any authority
or deserting the post, shall be deemed to
cause an interruption or break in the service
of the employee, unless otherwise decided
by the competent authority for the purpose
of
leave
travel
concession,
quasipermanency and eligibility for appearing
in department examinations, for which a
minimum period of continuous service is
required.

10.
Clause
6
of
the
Office
Memorandum
dated
26.02.2010
specifically mentions that the period of
absence not covered by grant of leave shall
have to be treated as "dies non" for all
purposes, viz., increment, leave and
pension.

11. Clause 5 and 6 of the Office
Memorandum dated 26.02.2010 do not
make any mention of voluntary retirement
and, therefore, the provisions of this Office
Memorandum are not relevant for deciding
the requests for voluntary retirement.

12. When Clause 11.1 of the master
circular specifically mentions about the
period of 20 years of qualifying service as
also service, which implies service other
than qualifying service and when the
petitioners did not controvert the specific
plea of the opposite party that he had
completed more than 22 years of service,
this Court finds no reason to take a view
different from the view taken by the
Tribunal by issuing a direction to the
petitioners to allow the opposite party's
request for voluntary retirement.

13. From time to time the Railway
Board issues Master Circulars, which are
consolidated instructions of the Railway
Board on the subject matters. The Railway
Board
issues
these
consolidated
instructions
as
Master
Circular
for
information and guidance of all concerned.

14. Master Circular No. 35 issued by
the Railway Board contains provisions
regarding Retirements and Part D of this
Circular deals with Voluntary Retirements.
Clause 11 of his Master Circular deals with
Voluntary Retirements and the relevant part
thereof is being quoted below: -

"11.
Based
on
the
recommendations of the Administrative
Reforms Commission, the scheme of
440 INDIAN LAW REPORTS ALLAHABAD SERIES
voluntary retirement of Railway Servants
after they have rendered Twenty Years of
qualifying
service
/
service,
on
proportionate
pension
and
gratuity/proportionate SC to PF, with a
weightage upto a maximum of five years
towards qualifying service / service has
been introduced with effect from 9.11.77.
Under this scheme, which is purely
voluntary, the initiative rests with the
Railway servant and the Govt. does not
have the reciprocal right to order on its
own retirement of Railway servants.

(Ref:
Board's
letter
No.
E(P&A)I-77/RT-46 dated 9.11.1977)

Period of notice to be given

11.1 A Railway servant desirous
of retiring voluntarily after twenty years of
qualifying service / service should give a
notice of three months in writing to the
appointing authority. A notice of less than
three months may also be accepted by the
appointing authority in deserving cases.
Before serving the notice of voluntary
retirement, a Railway servant should
satisfy himself by means of a reference to
the appropriate administrative authority
that he has completed twenty years of
service qualifying for pension/ service of
twenty years for purposes of Special
Contribution to Provident Fund, as the
case may be.
* * *

11.3. Where proceedings under
the Railway Servants (D&A) Rules are
pending or contemplated as for a major
penalty against the Railway servant who
has given notice of voluntary retirement
and the disciplinary authority, having
regard to the Circumstances of the case, is
of the view that the penalty of removal or
dismissal from service would be warranted
in the case or in cases where prosecution is
contemplated against the railway servant
concerned or may have been launched in a
Court of law acceptance of the notice
would require the approval of the Minister
in charge in regard to Group 'A' & 'B'
railway servants and that of the General
Manager in the cases of Group 'C' & 'D'
railway servants. Therefore, in the cases of
Group 'A' & 'B' officers, the General
Manager, while making a reference to the
Railway Board for advice, should indicate
whether departmental/ vigilance/ SPE
investigations
or
consequential
DAR
proceedings are pending or contemplated
against the officers concerned for the
imposition of a major penalty and whether
removal or dismissal from service would be
warranted in the case(s). (Ref: Board's
letters
No.
E(P&A)I-77/RT-46
dated
9.11.1977 & 26.5.1980)

11.4 A railway servant giving
notice
of
voluntary
retirement
the
acceptance of which requires appointing
authority's
approval,
may
presume
acceptance of the notice and the retirement
shall be effective in terms of the notice,
unless the competent authority issues an
order to the contrary, before the expiry of
the period of notice. (Ref: Board's letter
No. E(P&A)I-77/RT-46 dated 9.11.1977)

15. The use of the expression 'service'
only in Clauses 11.1 and 11.2 of the Master
Circular, after using the phrase 'qualifying
service' makes the intention of the Railway
Board manifest that even 'service' other
than 'qualifying service' will also be taken
into consideration while considering a
request for grant of voluntary retirement.

16. As per Clause 11.3 and 11.2 of the
Master Circular, a request for voluntary
retirement can be entertained even where
proceedings for a major penalty against the
railway servant are pending and the
disciplinary authority is of the view that the
penalty of removal or dismissal from
2 All. U.O.I. & Ors. Vs. Sri Santosh Kumar & Anr.
441
service would be warranted in the case or
even in cases where prosecution is
contemplated or has been launched
against the railway servant. The only
rider in such a condition is that it would
require the approval of the Minister in
charge in regard to Group 'A' & 'B'
railway servants and that of the General
Manager in the cases of Group 'C' & 'D'
railway servants. The acceptance of a
request for voluntary retirement shall be
presumed and the retirement shall be
effective in terms of the notice, unless the
competent authority issues an order to the
contrary, before the expiry of the period
of notice.

17. The Master Circular No. 35 does
not provide that the request of voluntary
retirement of a person who has been
awarded a minor punishment, cannot be
accepted.

18.
The
respondent
has
sought
voluntary retirement on the ground that he
is not keeping good health. Previously, two
charge-sheets were issued to him for his
unauthorized absence from duty. On
18.02.2020,
two
separate
punishment
orders were passed for negligence in
performance of duties. One order imposed
the
punishment
of
withholding
of
increment for one year without cumulative
effect and the other order punished him
with withholding of increment for one year
and 2 months without cumulative effect.
Apparently, the respondent has already
been punished for his unauthorized absence
from duty and that punishment does not
provided that the periods during which the
opposite party remained absent, shall not be
counted in his service or that he shall not be
paid salary for those periods. In these
circumstances,
no
other
adverse
consequence will follow due to the
respondent's absence for the aforesaid
period.

19.
In
view
of
the
foregoing
discussion, we are of the considered
opinion that there is no illegality in the
impugned orders passed by the Central
Administrative
Tribunal
allowing
the
original application filed by the respondent.
The Writ Petition lacks merit and the same
is hereby dismissed at the admission stage.
----------
(2025) 2 ILRA 441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 1977 of 2025

U.O.I. & Ors. ...Petitioners
Versus
Sri Santosh Kumar & Anr. ...Respondents

Counsel for the Petitioners:
Vinay Tripathi

Counsel for the Respondents:

A.
Service
Law
-
Compassionate
appointment - Relaxation in qualification
- Master Circular No. 16 and Office
Memorandum
dated
11.12.2009
-
Entitlement of sole child after successive
death of the parent - Railway claimed that
relaxation can be granted only to the
widow not to the rest dependent -
Permissibility
-
Held,
the
provision
contained in the Master Circular issued by
the Railway Board is applicable to all
persons
who
were
dependent
on
a
deceased employee and that is not limited
in its application to the widows of the
deceased employees - High Court found