# U.O.I. & Ors v. Dr. Shiv Poojan R. Singh & Anr

- **Citation:** (2024) 7 ILRA 1444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-16
- **Case number:** Writ A No. 68817 of 2015
- **Bench:** Arun Bhansali, C.J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-ors-v-dr-shiv-poojan-r-singh-anr-52196
- **Pages:** 13

## Headnote

A. Service Law - Pension/Benefits -
Voluntary
retirement
-
CCS
(Pension
Rules), 1972 - Rule 48 -Fundamental tight
56(c) - While the Government reserves its
right to compulsorily retire a Government
servant, even against his wish, there is a
corresponding right of the Government
servant u/Fundamental Right 56(c) to
voluntarily retire from service by giving
the Government three months' notice in
writing.
There
is
no
question
of
acceptance of the request for voluntary
retirement by the Government when the
Government servant exercises his right
under Fundament Right 56(c). (Para 31)

In the present case, neither on the date when
the original applicant applied for voluntarily
retirement i.e. 26.06.2013 nor the effective date
of voluntarily retirement i.e. 30.09.2013, there
was any order of appointing authority either
placing the original applicant under suspension
or any departmental enquiry initiated or
pending. It has come on record that the
departmental charge sheet has been issued on
10.10.2013 i.e. much after the effective date of
voluntarily retirement. (Para 35)

B. Rule 48 of the Rules, 1972 stipulates
that it is the right of the government
servant to claim voluntarily retirement,
however, subject to completion of 30
years of qualifying service and not placed
under suspension. The original applicant has
to his credit 30 years of qualifying service and
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1445
he was not placed under suspension. The theory
propounded by the writ petitioners that since a
decision had been taken on 19.09.2013 for
holding departmental proceedings against the
original applicant also stands eroded particularly
when the charge sheet is dated 10.10.2013
much after the effective date of voluntarily
retirement. (Para 36, 37)

Original Application No.330/00944/2014 has
been instituted by the
original applicant
(respondent
herein)
before
the
tribunal
challenging the charge sheet dated 10.10.2013
and Original Application No. 762 of 2014 whose
order whereof has been impugned in the writ
petition was filed challenging the rejection of VR
and for the retirement benefits. Therefore, the
cause of action and subject matter in both
the original applications are distinct and
different
in
that
regard
and
it
was
appropriate to decide the OA 762/2014 in
isolation order in the wake of the pendency of
OA 330/2014. (Para 7, 38)

Writ petitioners could not place any provision
which
gave
handle
to
the
writ
petitioners/employers to withhold the retiral
benefits in the wake of the explicit provision
contained u/Rule 48 of the Rules, 1972. (Para
39)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,795 of 43,429. This is a partial read: ask again with offset=39795 for what follows._

1444 INDIAN LAW REPORTS ALLAHABAD SERIES
offence are present or not has to be judged
by the High Court. A complaint disclosing
civil transactions may also have a criminal
texture. But the High Court must see
whether a dispute which is essentially of a
civil nature is given a cloak of criminal
offence. In such a situation, if a civil
remedy is available and is, in fact, adopted
as has happened in this case, the High
Court should not hesitate to quash the
criminal proceedings to prevent abuse of
process of the court."

Relying upon the decision in
Paramjeet Batra (supra), this Court in
Randheer Singh v. State of U.P. (2021) 14
SCC
626,
observed
that
criminal
proceedings cannot be taken recourse to
as a weapon of harassment. In Usha
Chakraborty & Anr. v. State of West
Bengal & Anr. 2023 SCC OnLine SC 90,
relying upon Paramjeet Batra (supra) it
was again held that where a dispute which
is essentially of a civil nature, is given a
cloak of a criminal offence, then such
disputes can be quashed, by exercising the
inherent powers under Section 482 of the
Code of Criminal Procedure."

(Emphasis supplied)

17. In view of above, application is
allowed. Impugned summoning order dated
02.09.2023 as well as entire proceedings in
Complaint Case No. 223 of 2023 (Rakesh
Kumar Pandey vs. Anuj Gupta and others),
under Sections 420, 406 IPC, Police Station
Kotwali, District Etawah, are hereby
quashed.

18. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 1444
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2024
BEFORE
THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 68817 of 2015

U.O.I. & Ors. ...Petitioners
Versus
Dr. Shiv Poojan R. Singh & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Saurabh Srivastava, Sri Gyanu Shukla,
Sri Manoj Kumar Singh, Sunil

Counsel for the Respondents:
Sri Ashish Kumar Srivastava, S.C., Sri Sunil

A. Service Law - Pension/Benefits -
Voluntary
retirement
-
CCS
(Pension
Rules), 1972 - Rule 48 -Fundamental tight
56(c) - While the Government reserves its
right to compulsorily retire a Government
servant, even against his wish, there is a
corresponding right of the Government
servant u/Fundamental Right 56(c) to
voluntarily retire from service by giving
the Government three months' notice in
writing.
There
is
no
question
of
acceptance of the request for voluntary
retirement by the Government when the
Government servant exercises his right
under Fundament Right 56(c). (Para 31)

In the present case, neither on the date when
the original applicant applied for voluntarily
retirement i.e. 26.06.2013 nor the effective date
of voluntarily retirement i.e. 30.09.2013, there
was any order of appointing authority either
placing the original applicant under suspension
or any departmental enquiry initiated or
pending. It has come on record that the
departmental charge sheet has been issued on
10.10.2013 i.e. much after the effective date of
voluntarily retirement. (Para 35)

B. Rule 48 of the Rules, 1972 stipulates
that it is the right of the government
servant to claim voluntarily retirement,
however, subject to completion of 30
years of qualifying service and not placed
under suspension. The original applicant has
to his credit 30 years of qualifying service and
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1445
he was not placed under suspension. The theory
propounded by the writ petitioners that since a
decision had been taken on 19.09.2013 for
holding departmental proceedings against the
original applicant also stands eroded particularly
when the charge sheet is dated 10.10.2013
much after the effective date of voluntarily
retirement. (Para 36, 37)

Original Application No.330/00944/2014 has
been instituted by the
original applicant
(respondent
herein)
before
the
tribunal
challenging the charge sheet dated 10.10.2013
and Original Application No. 762 of 2014 whose
order whereof has been impugned in the writ
petition was filed challenging the rejection of VR
and for the retirement benefits. Therefore, the
cause of action and subject matter in both
the original applications are distinct and
different
in
that
regard
and
it
was
appropriate to decide the OA 762/2014 in
isolation order in the wake of the pendency of
OA 330/2014. (Para 7, 38)

Writ petitioners could not place any provision
which
gave
handle
to
the
writ
petitioners/employers to withhold the retiral
benefits in the wake of the explicit provision
contained u/Rule 48 of the Rules, 1972. (Para
39)

Writ petition dismissed. (E-4)

Precedent followed:

1. Dinesh Chandra Sangma Vs State of Assam &
ors., (1977) 4 SCC (Para 31)

2. St. of Har. & ors. Vs S.K. Singhal, (1999) 4
SCC 293 (Para 32)

3. Tek Chand Vs Dile Ram, (2001) 3 SCC 290
(Para 33)

4. U.O.I. & ors. Vs Sayed Muzaffar Mir, 1995
Supp (1) SCC 76 (Para 34)

The present writ petition assails order
dated 4.8.2015, passed by CAT, Allahabad
Bench, Allahabad whereby the Original
Application preferred by Dr. Shiv Poojan
R. Singh (original applicant) was allowed,
the
orders
dated
30.03.2014
and
06.05.2014 of the writ petitioners were
set aside with a direction to the writ
petitioners
herein
to
treat
original
applicant to have deemed to be voluntarily
retired w.e.f. 30.9.2023 while extending
all the consequential benefits arising out
of voluntarily retirement in accordance
with rules within a period of three
months.

(Delivered by Hon'ble Arun Bhansali, C.J.
&
Hon'ble Vikas Budhwar, J.)

1. Impugned in the present
proceedings at the instance of Union of
India through its Secretary/Director
General, Department of Posts India,
Dak Bhawan Sansad Marg, New Delhi
(In short "writ petitioner") is the order
dated
4.8.2015
of
the
Central
Administrative Tribunal, Allahabad
Bench, Allahabad (In short "Tribunal")
whereby the Original Application
No.762 of 201 preferred by Dr. Shiv
Poojan R. Singh (In short original
applicant) was allowed, the orders
dated 30.3.2014 and 6.5.2014 of the
writ petitioners was set aside with a
direction to the writ petitioners herein
to treat original applicant to have
deemed to be voluntarily retired w.e.f.
30.9.2023 while extending all the
consequential benefits arising out of
voluntarily retirement in accordance
with rules within a period of three
months.

2. A joint statement has been
made by the counsel for the rival
parties that the writ petition be decided
at the admission stage as they do not
propose to file further affidavits. With
the consent of the parties, the Court is
proceeding to decide the writ petition
at the admission stage.

3. The case projected by the
original applicant before the Tribunal
was that he was initially inducted in
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
the postal department on 13.1.1981 and
thereafter
accorded
promotion
as
Superintendent of Post Office, Basti. In
terms of Rule 48 CCS (Pension Rules),
1972, (In short Rules, 1972) the
original applicant sought voluntarily
retirement
after
satisfactorily
completing 30 years of service by
virtue
of
an
application
dated
26.6.2013 seeking to retire him w.e.f.
30.9.2013 (AN).

4. It is also the case of the original
applicant that the said application
seeking voluntarily retirement was
forwarded by the Assistant Director
(Staff) on behalf of Post Master
General,
Gorakhpur
Region,
Gorakhpur to Assistant Post Master
General in the office of Chief Post
Master General, Lucknow.

5. A communication is stated to
have been issued by the A.D.P.S. on
behalf of the Post Master General,
Gorakhpur Region, Gorakhpur to the
original
applicant
on
5.7.2023
acknowledging receipt of the request
letter dated 26.6.2023. On 19.7.2023 a
communication came to be issued by
A.D.P.S. for the Post Master General,
Gorakhpur
Region,
Gorakhpur
addressed to A.P.M.G. (Staff) in the
office of the Chief Post Master
General,
U.P.
Circle,
Lucknow
recommending the case for voluntarily
retirement in the wake of the fact that
the original applicant was neither
under
suspension
nor
any
disciplinary/criminal proceedings was
pending against him, less to say about
punishment/penalty.

6. As per the pleadings an order is
stated
to
have
been
passed
on
31.7.2013 on behalf of Post Master
General,
Gorakhpur
Region,
Gorakhpur
whereby
the
original
applicant,
who
was
posted
as
Superintendent of Post Office, Basti
was transferred as A.D.P.S. Regional
Office, Gorakhpur.

7. The original applicant claims to
have proceeded on medical leave due
to
ill
health
w.e.f.
1.8.2013.
Subsequently on 30.9.2013 the original
applicant submitted an informal charge
report mentioning therein that w.e.f.
30.9.2013 he as per his request for
voluntarily retirement stood voluntarily
retired. Since the retiral dues were not
paid to the original applicant so he
claims to have preferred a request
letter
on
5.10.2013 followed
on
21.10.2013 and 7.11.2013. Since the
retiral benefits were not extended to
the original applicant so he preferred
Original Application No.O.A./330/161
of 2014 (Shiv Poojan R. Singh vs.
Union of India and others) which came
to be disposed of by the Tribunal vide
order dated 6.2.2014 requiring the writ
petitioners
herein
to
decide
the
representation of the original applicant
dated 7.11.2013 within a period of
three months.

8. According to the original
applicant an order is stated to have
been passed on 31.3.2014 by the Post
Master General, Gorakhpur Region,
Gorakhpur rejecting the application of
the original applicant for voluntarily
retirement on the ground that already a
decision has been taken on 20.9.2013
by the writ petitioners refusing the
request of voluntarily retirement and
further a decision has also been taken
to
hold
disciplinary
proceedings
against the original applicant. Another
order is stated to have been passed on
6.5.2014 by the Assistant Director
General (SGP) Government of India
Ministry of Communications & IT
Department
of
Posts
(Personal
Division) in compliance of the order of
the Tribunal wherein the similar stand
has been taken that the request of the
original
applicant
for
voluntarily
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1447
retirement has been declined and he
has been denuded of the post retiral
benefits.

9. Challenging the orders dated
30.3.2014 and 6.5.2014 of the writ
petitioners the Original Application
No.762 of 2014 seeking following
reliefs:-

"(i)
This
Hon'ble
Tribunal may be pleased to quash the
impugned orders dated 30.03.2014 &
06.05.2014 passed by the respondent
Nos. 3 and 1, (Annexure Nos. A-1 & A2 to the original application).

(ii) This Hon'ble Tribunal
may
be
pleased
to
direct
the
respondents to deem the applicant
retired from service on 30.09.2013 and
consequently pay him all retiral dues
with admissible interest thereupon.

(iii)
This
Hon'ble
Tribunal may be pleased to direct the
respondents to release the salary of the
applicant for the month of August &
September, 2013.

(iv)
Any
other
relief,
which this Hon'ble Tribunal may deem
fit and proper in the circumstances of
the case may be given in favour of the
applicant.

(v) Award the costs of the
original application in favour of the
applicant."

10. On being noticed a detailed
counter affidavit has been filed on
behalf of respondents therein/writ
petitioners herein sworn by the then
Director Postal Services Gorakhpur
dated 3.8.2014.

11. The Original Application
came to be allowed by the Tribunal
while quashing the orders dated
30.3.2014 and 6.5.2014 holding that
the original applicant shall be deemed
to have been voluntarily retired w.e.f.
30.9.2013 extending all consequential
benefits arising out of voluntarily
retirement in accordance with rules.

12. Questioning an order dated
4.8.2015
passed
in
Original
Application No.762 of 2014 (Dr. Shiv
Poojan R. Singh vs. Union of India and
others), the writ petitioners herein have
filed the present writ petition. This
Court entertained the writ petition on
22.12.2015
while
passing
the
following orders:-

"Shri
Ashish
Kumar
Srivastava has entered appearance on
behalf of applicant-opposite party
no.1. He prays for and is granted three
weeks' time to file counter affidavit.
The appellants will have one week
thereafter to file rejoinder affidavit.

List
this
matter
on
20.1.2016.

On the matter being taken
up today, from the side of the
appellants it has been sought to be
contended that the charge sheet in
question has been issued to the
claimant-opposite party no.1 and the
said charge sheet in question has been
subjected to challenge in Original
Application No.330/00944/2014 and
therein
on
11.8.2014
further
proceedings pursuant to the charge
sheet has been kept in abeyance.

The
appellants'
submission is that once there were two
original applications moved by the
opposite party no.1, then both the
original applications in question ought
to have been heard together as
decision in one of the original
application is going to affect the
outcome
of
second
original
application. In the present case, the
request of the appellants has not been
accepted and straightaway the request
of applicant-opposite party no.1 for
voluntary
retirement
has
been
accepted.
Petitioners
submit
that
action taken is unjustifiable.
1448 INDIAN LAW REPORTS ALLAHABAD SERIES

The
matter
requires
consideration.

In view of this, till the next
date of listing, pursuant to the
order dated 4.8.2015 passed in
Original Application No.762 of
2014 (Dr. Shiv Poojan R. Singh
vs. Union of India and ors) no
further action be taken."

13. A counter affidavit has
been filed by the original applicant
to which a rejoinder affidavit has
been filed and as per the joint
statement made by the parties, the
pleadings are complete.

14. Sri Manoj Kumar Singh,
learned counsel appearing for the
writ petitioners have sought to
argue that the order of the
Tribunal cannot be sustained for a
single moment. Elaborating the
said submissions it has been
submitted that though Rule 48 of
the Rules, 1972 provides for
voluntarily retirement, however,
the same does not confer any
unfettered right to the retiring
employee/officer to insist and
claim
voluntarily
retirement.
According to him Rule 48 of the
Rules, 1972 only stipulates that a
retiring employee/officer can only
make
an
application
for
voluntarily retirement, however,
ultimate decision is to be taken by
the employer. To put it otherwise,
it
has
been
contended
that
voluntarily retirement is not a
matter of right however, the
acceptance of the request is
subject to the discretion of the
employer
that
too
after
consideration of various factors.

 15. Submission is that in the present
case at hand the original applicant
though had requested for voluntarily
retirement on 26.6.2013 giving the
effective
date
to
be
30.9.2013,
however, prior to it on 31.7.2013 an
order
has
been
passed
by
the
Appointing Authority being the Post
Master General, Gorakhpur Region,
Gorakhpur transferring him from the
post of Superintendent of Post Office,
Basti to A.D.P.S. (Estt.) (Mail) R.O.
Gorakhpur, but the original applicant
avoided joining in the transfered place
and took medical leave for the obvious
reasons. It is also submitted that before
the effective date i.e. 30.9.2013 a
decision has been taken while rejecting
the
application
for
voluntarily
retirement
dated
26.6.2013
on
19.9.2013 and the said order was
deliberately
not
received
by
the
original applicant creating a situation
whereby the said order was pasted in
the address registered in the office of
the writ petitioners by the original
applicant.

 16. According to the learned counsel
for the writ petitioners a decision was
taken for holding departmental enquiry
against the original applicant and a
charge sheet has also been issued dated
10.10.2013. It is thus, contended that
the
decision
taken
by
the
writ
petitioners rejecting the request over
voluntarily
retirement
cannot
be
faulted with, the Tribunal committed
manifest error of law in setting aside
the said orders as payment of post
retiral benefits is always subject to
satisfactory service coupled with a
decision taken by the employer either
to accept or to reject the request for
voluntarily retirement. Thus, it is
prayed that the order of the Tribunal be
set aside.

 17. Countering the submission of the
learned counsel for the petitioners, Sri
Ashish Kumar Srivastava along with
Sri Sunil, who appears for the original
applicant have submitted that the order
of the Tribunal needs no interference
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1449
in the present proceedings. According
to them the case of the original
applicant post completion of 30 years
of service stands governed under Rule
48 Rules, 1972 according to which a
government servant after completion
of 30 years of service has a right to get
voluntarily retired. They submit that
there is no question of any discretion
left at the hands of the employer,
however,
the
application
for
voluntarily retirement can only be
turned down in case the government
servant is under suspension.

 18. Submission is that neither the
original applicant was placed under
suspension
nor
any
departmental
proceedings was initiated against him
as the charge sheet which is alleged to
have been served upon the original
applicant is dated 10.10.2013 much
after
the
request
for
voluntarily
retirement or the effective date of
voluntarily retirement i.e. 30.9.2013.

 19. Additionally, it has been
submitted that though in the order
impugned before the Tribunal shelter
has been taken to the provisions
contained under Rule 48A of the
Rules, 1972 but in view of the specific
averments contained in para 28 of the
counter affidavit filed before the
Tribunal, the writ petitioners have
treated the case of the original
applicant under Rule 48A of the Rules,
1972, thus post completion of 30 years
of service the original applicant
became entitled to be voluntary retired
irrespective of any order of acceptance.

 20. We have considered the
submissions made by the learned
counsel for the parties and have
perused the material available on
record.

 21. Before delving into the tenability
of the arguments of the rival parties, it
would be apposite to quote the relevant
statutory provisions which are germane
to the controversy in question.

CCS (Pension Rules), 1972

48. Retirement on completion
of 30 years' qualifying service

(1) At any time after a
Government
servant
has
completed thirty years' qualifying
service -

(a) he may retire from
service, or

(b) he may be required by
the appointing authority to retire
in the public interest, and in the
case
of
such
retirement
the
Government
servant
shall
be
entitled to a retiring pension:

Provided that -

(a) a Government servant shall
give a notice in writing to the
appointing authority at least three
months before the date on which he
wishes to retire; and

(b) the appointing authority
may also give a notice in writing to a
Government servant at least three
months before the date on which he is
required to retire in the public interest
or three months' pay and allowances in
lieu of such notice:

Provided further that where the
Government servant giving notice
under clause (a) of the preceding
proviso is under suspension, it shall be
open to the appointing authority to
withhold
permission
to
such
Government servant to retire under
this rule:

Provided further that the
provisions of clause (a) of this
sub-rule shall not apply to a
Government
servant,
including
scientist or technical expert who is
-

(i) on assignments under
the
Indian
Technical
and
Economic
Cooperation
(ITEC)
Programme of the Ministry of
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
External Affairs and other aid
programmes,

(ii)
posted
abroad
in
foreign
based
offices
of
the
Ministries/Departments,

(iii) on a specific contract
assignment
to
a
foreign
Government,

Unless, after having been
transferred to India, he has
resumed the charge of the post in
India and served for a period of
not less than one year.

(1-A)(a) A Government servant
referred to in clause (a) of the first
proviso to sub-rule (1) may make a
request in writing to the appointing
authority to accept notice of less than
three months giving reasons therefor.

(b) On receipt of a request
under
clause
(a)
the
appointing
authority may consider such request
for the curtailment of the period of
notice of three months on merits and if
it is satisfied that the curtailment of the
period of notice will not cause any
administrative
inconvenience,
appointing authority may relax the
requirement of notice of three months
on the condition that the Government
servant
shall
not
apply
for
commutation of a part of his pension
before the expiry of the period of
notice of three months.

(2) A Government servant, who
has elected to retire under this rule
and has given the necessary intimation
to
the
effect
to
the
appointing
authority, shall be precluded from
withdrawing his election subsequently
except with the specific approval of
such authority:

Provided that the request for
withdrawal
shall
be
within
the
intended date of his retirement.

(3) For the purpose of this
rule
the
expression
"appointing
authority" shall mean the authority
which
is
competent
to
make
appointments to the service or post
from which the Government servant
retire.

48-A.
Retirement
on
completion of 20 years' qualifying
service

(1) At any time after a
Government servant has completed
twenty years' qualifying service, he
may, by giving notice of not less than
three months in writing to the
appointing authority, retire from
service.

Provided that this sub-rule
shall not apply to a Government
servant,
including
scientist
or
technical expert who is -

(i) on assignments under the
Indian
Technical
and
Economic
Cooperation (ITEC) Programme of
the Ministry of External Affairs and
other aid programmes,

(ii) posted abroad in foreign
based
offices
of
the
Ministries/Departments,

(iii)
on a specific contract assignment to
a foreign Government,

Unless, after having been
transferred to India, he has resumed
the charge of the post in India and
served for a period of not less than
one year.

(2) The notice of voluntary
retirement given under sub-rule (1)
shall require acceptance by the
appointing authority:

Provided
that
where
the
appointing authority does not refuse
to
grant
the
permission
for
retirement before the expiry of the
period specified in the said notice,
the retirement shall become effective
from the date of expiry of the said
period.

3-A(a) Government servant
referred to in sub-rule (1) may make
a request in writing to the appointing
authority
to
accept
notice
of
voluntary retirement of less than
three
months
giving
reasons
therefor;
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1451

(b) On receipt of a request
under Clause (a), the appointing
authority subject to the provisions subrule (2), may consider such request for
the curtailment of the period of notice
of three months on merits and if it is
satisfied that the curtailment of the
period of notice will not cause any
administrative
inconvenience,
the
appointing authority may relax the
requirement of notice of three months
on the condition that the Government
shall not apply for commutation of a
part of his pension before the expiry of
the period of notice of three months.]

(4) A Government servant, who
has elected to retire under this rule
and has given the necessary notice to
that effect to the appointing authority,
shall be precluded from withdrawing
his notice except with the specific
approval of such authority:
 Provided
that
the
request
for
withdrawal shall be made before the
intended date of his retirement.

(5) The pension and [retirement
gratuity] of the Government servant
retiring under this rule shall be based
on the emoluments as defined under
Rules 33 and 34 and the increase not
exceeding five years in his qualifying
service shall not entitle him to any
notional fixation of pay for purposes of
calculating pension and gratuity.

(6) This rule shall not apply to
a Government servant who,-
(a) retires under Rule 29, or

(b) retires from Government
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.
Fundamental Rules

"56(c) Any government servant
may, by giving notice of not less than
three
months
in
writing
to
the
appropriate authority, retire from
service after he has attained the age of
fifty years or has completed 25 years of
service, whichever is earlier."
Indian Railway Establishment Code

"1802. Premature RetirementRetirement On Attaining Age:-

(a).......................

(b) Premature Retirement On
Voluntary Retirement:

(1) Any railway servant may by
giving notice of not less than three
months in writing to the appropriate
authority, retire from service after he
has attained the age of fifty years if he
is in Group-A or Group-B service or
post (and had entered Government
service before attaining the age of 35
years) and in all other cases after he
has attained the age of 55 years:

Provided that it shall be open
to
the
appropriate
authority
to
withhold permission to a railway
servant under suspension who seeks to
retire under this clause.

(2) A railway servant, referred
to in sub-rule (1) may make a request
in writing to the appointing authority
to accept a notice of less than three
months, giving reasons therefore. On
receipt of a request under this subrule, the appointing authority may
consider such request for curtailment
of the period of notice of three months
on merits and, if it is satisfied that the
curtailment of the period of notice will
not
cause
any
administrative
inconvenience,
the
appointing
authority may relax the requirement of
notice of three months, on the
condition that the railway servant shall
not apply for commutation of a part of
his pension before the expiry of the
period of notice of three months."

 22. It is not disputed that the original
applicant was posted as Superintendent
of Post Office, at Basti. It is also not in
dispute that on 26.6.2013, the original
applicant preferred an application
seeking voluntarily retirement w.e.f.
30.9.2013
before
the
competent
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
authority. Parties are in agreement that
a communication was issued by the
A.D.P.S. for Post Master General,
Gorakhpur
Region,
Gorakhpur
addressed to Assistant Post Master
General (Staff) in the office of Chief
Post Master General, Lucknow on
19.7.2023 mentioning therein that the
original applicant was neither placed
under
suspension
nor
any
disciplinary/criminal case was pending
against him or any punishment/penalty
is in currency against the original
applicant.

 23. The dispute arose when a
transfer order came to be passed by the
writ
petitioners
transferring
the
original
applicant
from
Basti
to
Gorakhpur. The original applicant
proceeded on medical leave and did
not join the transferred post. Record
reveals that the original applicant
submitted an informal charge report on
30.9.2023 treating the said date to be
the date of voluntarily retirement.
Since the original applicant was not
extended the post retiral benefits so he
instituted O.A. No. 330/00161/2014,
Dr. Shiv Poojan R. Singh vs. UOI &
others which was disposed of on
6.2.2014 requiring the writ petitioners
to address the claim of the original
applicant while passing orders on the
representation. Thereafter two orders
are stated to have been passed, firstly
on
31.3.2014
and
secondly
on
6.5.2014 by the writ petitioners
reciting therein that the request of the
original applicant for voluntarily
retirement has been turned down, he
is not entitled to be paid .post retiral
benefits and further on account of
misconduct a decision has been taken
to hold departmental enquiry against
the original applicant. The said
orders came to be challenged in O.A.
No.762 of 2014 which came to be
allowed on 4.8.2015 setting aside the
said orders.
 24. The bone of contention between
the parties is whether the statutory
Rules give a legal and absolute right to
the
government
servant
to
seek
voluntarily retirement post completion
of the satisfactory qualifying period or
not. There are two provisions with
respect to voluntarily retirement under
Chapter VII under the headings of
"Regulations of Amounts of Pension".

 25. Rule 48 of the Rules, 1972 talks
about retirement on completion of 30
years of qualifying service, whereas
Rule 48A of the Rules, 1972 provides
for retirement on completion of 20
years qualifying service. Though, in
the
order
impugned
before
the
Tribunal, the writ petitioners had
invoked Rule 48A of the Rules, 1972
but in para 28 of the counter affidavit
filed by the writ petitioners before the
Tribunal the following stand was
taken.

"The
Rule
48-A
has
inadvertently (been) mentioned in
Director General (Posts) New Delhi
letter dated 19.9.2015 instead of
correct rule 48 of the CCS (Pension
Rules)".

 26. Rule 48 of the Rules, 1972
stipulates that it is open for the
government servant post completion of
30 years of qualifying service to retire
from service. Even otherwise the
appointing
authority
is
also
empowered to retire in public interest a
government servant after completion
of 30 years of qualifying service. The
Rule
further
provides
that
the
government servant shall be entitled to
a retiring pension. A three months
notice in writing is required for
exercising the said right for voluntarily
retirement. However, there is a caveat
also that the right of a Government
Servant for voluntarily retirement can
be stalled in case the Government
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1453
Servant is under suspension. As per the
said Rule the period of three months
notice
can
be
curtailed
by
the
appointing authority.

 27. In contrast rule 48A of the
Rules, 1972 deals with retirement on
completion of 20 years of qualifying
service. Sub-Rule (2) of the Rule 48A
of the Rules, 1972 further provides that
the notice of voluntarily retirement
shall
require
acceptance
by
the
appointing authority.

 28. A conjoint reading of the Rules
48 and 48A of the Rules, 1972 would
reveal that Rule 48 of the Rules, 1972
first of all deals with completion of 30
years of qualifying service whereas
Rule 48A of the Rules, 1972 deals with
retirement on completion of 20 years
of qualifying service. There is a
conspicuous
marked
difference
between both the provisions in the
context that though the provision
contained in Rule 48A(2) of the Rules,
1972
postulates
requirement
of
acceptance of voluntarily retirement by
appointing authority, however, the
same is lacking in Rule 48. The said
broad difference clinches the issue.

 29. Notably, to put it otherwise Rule
48 of the Rules, 1972 gives a right to
the
retiring
employee
to
claim
voluntarily retirement subject to two
conditions
firstly,
satisfactory
completion of 30 years of qualifying
service,
secondly,
the
retiring
employee is not under suspension.
Evidently, the Rule making authority
was conscious about the different
categories of retiring employees and
that is why two separate provisions
have been engrafted.

 30. Fundamental Rules 56 is also on
the same line wherein post completion
of
the
qualifying
period,
the
Government Servant has a right to
claim voluntarily appointment and
there is no provision of acceptance of
the
request
for
the
voluntarily
retirement.

 31. The three Judges Bench of the
Hon'ble Apex Court in the case of
Dinesh Chandra Sangma vs. State of
Assam and others (1977) 4 SCC 441
had the occasion to consider the said
issue and held as under:-

"8.
As
is
well
known
Government
servants
hold
office
during the pleasure of the President or
the Governor, as the case may be,
under Article 310 of the Constitution.
However, the pleasure doctrine under
Article 310 is limited by Article 311
(2). It is clear that the services of a
permanent Government servant cannot
be terminated except in accordance
with the rules made under Article 309
subject to Article 311 (2) of the
Constitution and the Fundamental
Rights. It is also well-settled that even
a temporary Government servant or a
probationer cannot be dismissed or
removed or reduced in rank except in
accordance with Article 311 (2). The
above doctrine of pleasure is invoked
by the government in the public
interest after a government servant
attains the age of 50 years or has
completed 25 years of service. This is
constitutionally
permissible
as
compulsory termination of service
under Fundamental Right 56(b) does
not amount to removal or dismissal by
way
of
punishment.
While
the
Government reserves its right to
compulsorily retire a Government
servant, even against his wish, there is
a
corresponding
right
of
the
Government servant under Fundament
Right 56(c) to voluntarily retire from
service by giving the Government three
months' notice in writing. There is no
question of acceptance of the request
for
voluntary
retirement
by
the
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
Government when the Government
servant exercises his right under
Fundament Right 56(c). Mr. Niren De
is therefore right in conceding this
position.

13. F.R 56 is one of the
statutory
rules
which
binds
the
Government as well as the Government
servant. The condition of service which
is envisaged in Rule 56(c) giving an
option
in
absolute
terms
to
a
Government servant to voluntarily
retire with three months' previous
notice, after he reaches 50 years of age
or has completed 25 years of service,
cannot therefore be equated with a
contract of employment as envisaged
in Explanation 2 to Rule 119."

 32. The aforesaid decision was
followed in the case of State of
Haryana and others vs. S.K. Singhal
(1999) 4 SCC 293 while observing:-

9.
The
employment
of
government servants is governed by
rules. These rules provide a particular
age as the age of superannuation.
Nonetheless, the rules confer a right on
the Government to compulsorily retire
an employee before the age of
superannuation provided the employee
has reached a particular age or has
completed a particular number of
years of qualifying service in case it is
found that his service has not been
found to be satisfactory. The rules also
provide that an employee who has
completed the said number of years in
his age or who has completed the
prescribed
number
of
years
of
qualifying service could give notice of,
say, three months that he would
voluntarily retire on the expiry of the
said period of three months. Some
rules are couched in language which
results in an automatic retirement of
the employee upon the expiry of the
period specified in the employee's
notice. On the other hand, certain
rules in some other departments are
couched in language which makes it
clear that even upon expiry of the
period specified in the notice, the
retirement is not automatic and an
express order granting permission is
required and has to be communicated.
The relationship of master and servant
in the latter type of rules continues
after the period specified in the notice
till such acceptance is communicated;
refusal of permission could also be
communicated after 3 months and the
employee continues to be in service.
Cases like Dinesh Chandra Sangma v.
State of Assam, B.J. Shelat v. State of
Gujarat and Union of India v. Sayed
Muzaffar Mir belong to the former
category where it is held that upon the
expiry of the period, the voluntary
retirement takes effect automatically as
no order of refusal is passed within the
notice period. On the other hand H.P.
Horticultural Produce Marketing &
Processing Corpn. Ltd. v. Suman
Behari Sharma belongs to the second
category where the bye-laws were
interpreted as not giving an option "to
retire" but only provided a limited
right to "seek" retirement thereby
implying the need for a consent of the
employer even if the period of the
notice has elapsed. We shall refer to
these two categories in some detail.

13. Thus, from the aforesaid
three decisions it is clear that if the
right to voluntarily retire is conferred
in absolute terms as in Dinesh
Chandra Sangma case by the relevant
rules and there is no provision in the
rules to withhold permission in certain
contingencies the voluntary retirement
comes into effect automatically on the
expiry of the period specified in the
notice......

 33. Reiterating the said legal
position the Hon'ble Apex Court in the
case of Tek Chand vs. Dile Ram
(2001) 3 SCC 290 held as under:-
7 All. U.O.I. & Ors. Vs. Dr. Shiv Poojan R. Singh & Anr.
1455

"35. In our view, this judgment
fully supports the contention urged on
behalf of the appellant in this regard.
In this judgment, it is observed that
there are three categories of rules
relating
to
seeking
of
voluntary
retirement after notice. In the first
category,
voluntary
retirement
automatically comes into force on
expiry of notice period. In the second
category also, retirement comes into
force unless an order is passed during
notice period withholding permission
to retire and in the third category
voluntary retirement does not come
into force unless permission to this
effect is granted by the competent
authority. In such a case, refusal of
permission can be communicated even
after the expiry of the notice period. It
all depends upon the relevant rules. In
the case decided, the relevant Rule
required acceptance of notice by
appointing authority and the proviso to
the Rule further laid down that
retirement shall come into force
automatically
if
the
appointing
authority did not refuse permission
during the notice period. Refusal
was
not
communicated
to
the
respondent during the notice period
and the Court held that voluntary
retirement came into force on expiry
of the notice period and subsequent
order conveyed to him that he could
not be deemed to have voluntary
retired had no effect. The present
case is almost identical to the one
decided by this Court in the aforesaid
decision."

 34. The pari materia provisions akin
to Rule 48 of the Rules,1972 being
Rule 1802 (b) of Indian Railway
Establishment Code came up for
interpretation before the Hon'ble Apex
Court in the case of Union of India
and others vs. Sayed Muzaffar Mir
1995 Supp (1) SCC 76 wherein the
following was observed:-

"5. The second aspect of the
matter is that it has been held by a
three-Judge Bench of this Court in
Dinesh Chandra Sangma v. State of
Assam, which has dealt with a pari
materia provision finding place in Rule
56(c) of the Fundamental Rules, that
where the government servant seeks
premature retirement the same does
not require any acceptance and comes
into effect on the completion of the
notice period. This decision was
followed by another three-Judge Bench
in B.J. Shelat v. State of Gujarat."

 35. Applying the proposition of law
as culled out in the above noted
judgements in the facts of the case, we
find that neither on the date when the
original
applicant
applied
for
voluntarily retirement i.e. 26.6.2013
nor the effective date of voluntarily
retirement i.e. 30.9.2013, there was
any order of appointing authority either
placing the original applicant under
suspension
or
any
departmental
enquiry initiated or pending. It has
come on record that the departmental
charge sheet has been issued on
10.10.2013 i.e. much after the effective
date of voluntarily retirement.

 36. As regards the contention of the
writ petitioners that the original
applicant
became
unauthorisedly
absent w.e.f.