W. P. No. 2316 of 1992

12th March, 1993.

Petitioner Counsel: S. G. Aney, A. S. Chandurkar
Respondent Counsel: D. K. Deshmukh, Mrs. Wandile

JUDGMENT

H. W. DHABE, J. :- Parties by counsel. Rule. Heard forthwith.

1. The petitioner has challenged in this writ petition the orders of the learned District And Sessions Judge, Akola i.e. the respondent No. 1 dated 1-9-1992 and 1-10-1992 refusing him permission to withdraw his notice of retirement dated 31-7-1992. He has also challenged in this writ petition the validity of Rule 66(5) of the Maharashtra Civil Services (Pension) Rules, 1982 (for short, 'the Pension Rules') applicable to the Government Servants.

2. Briefly, the facts are that the petitioner was appointed as Section Writer in the District Court, Akola on 5-7-1970 and was promoted thereafter as Clerk-cum-Steno on 1-8-1976. According to him, he had completed 20 years of service when he gave the notice of voluntary retirement dated 31-7-1992 in accordance with Rule 66(1) of the Pension Rules which provides that at any time after a Government servant has completed 20 years' qualifying service, he can by giving a notice of three months in writing to the Appointing Authority, retire from service. The said notice of retirement was accepted by the respondent No. 1 on 10-8-1992 with effect from 31-10-1992 i.e. the date on which the period of three months from the date of his notice of voluntary retirement dated 31-7-1992 would expire. The petitioner thereafter by his application dated 25-8-1992 applied for withdrawal of his notice of voluntary retirement dated 31-7-1992.

3. The learned District Judge, however, refused as per his order dated 1-9-1992, to grant approval to his aforesaid application dated 25-8-1992 for withdrawal of his notice of retirement dated 31-7-1992, principally because he found that the above application of the petitioner dated 25-8-1992 was a conditional one. The petitioner thereafter made an application on 25-9-1992 stating therein that he would unconditionally withdraw his notice of retirement dated 31-7-1992. The learned District Judge by his order dated 1-10-1992 rejected the said application for the reasons given by him in his earlier order dated 1-9-1992 and also because of the contents of the notice of voluntary retirement dated 31-7-1992 given by the petitioner as well as the contents of his application dated 25-9-1992 for unconditional withdrawal of his notice of voluntary retirement dated 31-7-1992.

4. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court. Although, initially, there was a proposal and the petitioner had agreed to accept the lower post, since a proper lower post could not be found for him, the matter could not be settled and is, therefore, heard and disposed of on merits.

5. The learned counsel for the petitioner has urged before us that no valid reason is given by the learned District Judge in rejecting the application of the petitioner dated 25-9-1992 seeking to withdraw his notice of voluntary retirement unconditionally. His submission in this regard is that under sub-rule (5) of Rule 66 of the Pension Rules which requires specific approval of the competent authority for withdrawing the notice of retirement given by the Government servant, proper and valid reasons are necessary to be given by the competent authority for not permitting the Government servant to withdraw the notice of voluntary retirement given by him. The submission thus is that in the absence of any valid reasons for declining approval, the learned District Judge was bound to grant permission to the petitioner to withdraw his notice of retirement unconditionally. Another contention raised by the learned counsel for the petitioner is about the validity of sub-rule (5) of Rule 66 of the Pension Rules. The learned counsel appearing for the respondents has vehemently opposed the above contentions raised on behalf of the petitioner.

6. As regards the contention about the validity of sub-rule (5) of Rule 66 of the Pension Rules, the submission on behalf of the petitioner is that there are no guidelines laid down in the said Rule for exercise of the powers thereunder by the competent authority and, therefore, the said Rule is arbitrary, discriminatory and is violative of Article 14 of the Constitution. In our view, the above submission made on behalf of the petitioner cannot be upheld. It is well settled that although there may not be any guidelines directly in the Rule in question, itself, the Court is entitled to obtain guidance from the preamble, the policy and the purpose of the Act and the power conferred under it and to see that the power is exercised only for that purpose. If such guidance can be had from the scheme and the policy of the Act, the Court may uphold the Statute and strike down the action in a particular case, if it is arbitrary and does not further the policy and object of the Act. See the observations of the Supreme Court in Ram Krishna Dalmia vs. Justice Tendolkar, 1959 SCR 279, 299 = AIR 1958 SC 538 (relevant page 548). That, the guidance can be had from the preamble read in the light of surrounding circumstances or even from the policy or the purpose of the Enactment or generally from the object sought to be achieved is also reiterated by the Supreme Court in the case of Jyoti Prasad vs. Administrator for the Union Territory of Delhi, (1962) 2 SCR 125, 139 = AIR 1961 SC 1602 (relevant page 1609). It is material to see that the provision relating to compulsory retirement by giving three months' notice is upheld on the ground that the exercise of the said power under the Rule has to be in "public interest" which provides sufficient guidance in the matter of compulsory retirement of a Government servant. See, Union of India vs. Col. J. N. Sinha, AIR 1971 SC 40 at para 42.

7. It is also then well settled that the Court will sustain the presumption of constitutionality by considering matters of common knowledge by assuming every state of facts which can be conceived and can even read down the Section if it becomes necessary to uphold its validity. See Commissioner of Sales Tax, MP, Indore vs. Radhakrishnan, (1979)2 SCC 249 at page 257 = AIR 1979 SC 1588 at page 1593, which is also a decision in which it is held that without striking down the provision which is alleged to be onerous, the Court can strike down the action, if it is found to be arbitrary, capricious and violative of Article 14 of the Constitution.

8. Turning to the scheme of the Pension Rules, the purpose of the said Rules obviously is to grant retirement benefits to a Government servant who had put in long meritorious service in the Government. With this view in mind, Rule 10 of the Pension Rules lays down the age of retirement for the Government servants. The actual question of the classification of Pensions and conditions governing their grant is dealt with in Chapter VII of the Pension Rules. Rule 62 in Chapter VII of the Pension Rules describes the categories of pensions such as Superannuation Pension, Retiring Pension, Invalid Pension, Compensation Pension, Family Pension etc. which, on fulfilment of the requirement thereof, can be granted to a Government servant. Rule 63 provides for superannuation pension to a Government servant, who retires on attaining the age of superannuation fixed by the relevant sub-rule of Rule 10 of the Pension Rules. We are, however, particularly concerned with Retiring Pension, which is granted as per Rule 64(1) to a Government servant who retires, or is retired in advance of the age of superannuation in accordance with the provisions of the appropriate sub-rule of Rule 10 or Rules 65 to 67 of the Pension Rules. Rule 65 gives an option to both, to the Government to retire the Government Servant compulsorily, and to the Government Servant to retire voluntarily, on completion of 30 years' qualifying service of the Government Servant concerned by giving three months' notice. Rule 66 however enables only the Government Servant to retire voluntarily by giving three months notice on completion of 20 years' qualifying service. Sub-Rule (6) of Rule 66 then enables him to get pension and retirement gratuity on the basis of the pay as defined under Rules 60 and 61. However, the increase not exceeding five years in his qualifying service does not entitle him to any notional fixation of pay for the purposes of calculating pension and gratuity.

9. It is thus clear from the scheme of the above Rules that although under Rule 65 a right is created in both, the Government and the Government servant relating to retirement of Government servant on completion of thirty years' qualifying service with the benefit of retirement pension a unilateral right is created in favour of the Government servant only of getting the benefit of retirement pension by voluntarily retiring on completion of 20 years' qualifying service. When such a unilateral right to retirement benefit is sought to be conferred upon the Government servant, certain restrictions are sought to be placed upon the said right. Sub-rules 2 and 5 of Rule 66 enact such restrictions so as to ensure that it is not used improperly. Sub-rule 2 of Rule 66, therefore, requires such notice of voluntary retirement to be accepted by the appointing authority so that in appropriate cases such as, for instance, where the notice of voluntary retirement under Rule 65 is sought to be given to escape the consequences of an enquiry into the misconduct or serious lapse committed by the Government servant, the appointing authority may decline to accept his notice of voluntary retirement and proceed with the enquiry against him. As regards sub-rule 5 of Rule 66, it imposes a restriction on withdrawal of the notice of voluntary retirement before it becomes effective by requiring the specific approval of the appointing authority for the said purpose. Since the interpretation of sub-rule 5 of Rule 66 is in issue in the instant writ petition in considering its validity also suffice it to say at this stage that the approval to the withdrawal of the notice of retirement can be withheld by the appointing authority for good and valid reasons.

10. It is true that normally when a period of notice is provided for tendering resignation or for voluntary retirement, there is no necessity of its acceptance by the appointing authority. Similarly, there is no restriction normally upon the right of the Government servant or any employee to withdraw his resignation or notice of voluntary retirement before it becomes effective. However, looking to its object, the nature of the benefit which is sought to be conferred under Rule 66 of the Pension Rules, and with a view to prevent its improper use or abuse by sometimes putting the Government into difficulty and inconvenient situation by withdrawal of the notice of retirement at one's sweet will such as when acting on the notice of voluntary retirement some other administrative arrangement is made by the Government, Rule 66(5) is enacted which is thus in fact a salutary rule which would further the object of conferring the benefit of retirement benefit in genuine cases of Government servants who want to lay down their office after long service of 20 years. The said Rule 66(5) cannot thus be said to be arbitrary, discriminatory and violative of Article 14 of the Constitution.

11. It is material to notice at this stage the judgment of the Supreme Court in the case of Balram Gupta vs. Union of India, AIR 1987 SC 2354, in which Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 (for short, 'the Central Rules') which is identical to Rule 66(5) of the Pension Rules, is construed by the Supreme Court. In fact, the whole of the Rule 48-A of the Central Rules is pari materia with Rule 66 of the Pension Rules. In the said case also, the validity of Rule 48-A(4) was challenged on the ground that it was violative of Article 14 of the Constitution as in the instant case. However, in the view which the Supreme Court had taken in that case, it was held that it was not necessary for it to decide the question whether Rule 48-A(4) was valid or not. The Supreme Court has, however, interpreted Rule 48-A(4) of the Central Rules in the said case which interpretation is fully applicable to pari materia rule 66(5) of the Pension Rules whose interpretation falls for our consideration for determining its validity as well as for deciding the question whether the action of the learned District Judge in declining approval to the withdrawal of the notice of voluntary retirement is justified thereunder or not.

12. In interpreting the said Rule 48A(4) of the Central Rules, the Supreme Court has observed in para 11 of the judgment cited supra that if properly exercised the power of the Government under the said Rule 48A(4) may be a salutary rule. It is then held that the approval under the said Rule 48A(4) is not ipse dixit of the approving authority but the approving authority who has the statutory authority must act reasonably and rationally in exercising its power thereunder.

13. In para 9 of its judgment cited supra, dealing with the affidavit on behalf of the Government, the Supreme Court has observed that what is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the Government from withholding the withdrawal. It is then made clear that in appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state its reasons for the same. The Supreme Court has, however, cautioned that there may be many situations where a situation or opportunity like this may be used by the Government to ease out a disgrunted or troublesome employee. It has condemned such circuitous ways to ease out uncomfortable employees. It is thus clear from the above judgment of the Supreme Court that for withholding the approval to the withdrawal of notice of retirement, it is necessary for the approving authority to give reasons, which reasons must be germane to the matter in issue, although it is clear from the said judgment that much latitude is and should be shown to the Government servant in considering whether the reason given by him for withdrawal of his notice of retirement is valid or not.

14. We have already shown that Rule 66(5) of the Pension Rules is pari materia with Rule 48A(4) of the Central Rules. Interpreting, therefore, Rule 66(5) in the same manner in which Rule 48A(4) is interpreted by the Supreme Court in the judgment cited supra, it has to be held that the approving authority cannot withhold approval to the withdrawal of the notice of voluntary retirement without any rhyme or reason or in other words it is not ipse dixit of the approving authority. As held by the Supreme Court in the judgment cited supra, the appointing authority which is a statutory authority under Rule 66(5) of the Pension Rules must act reasonably and rationally in considering the question of approval under the said sub-rule. The appointing authority, therefore, must give good and valid reasons for not granting approval to the withdrawal of notice of retirement. Giving of good and valid reasons would mean that the reasons given are such which are germane to the question of according or refusing permission to the withdrawal of the notice of retirement.

15. If the requirement of stating good and valid reasons is by its interpretation incorporated under Rule 66(5) of the Pension Rules, it cannot be held that the said rule is still arbitrary, discriminatory and violative of Article 14 of the Constitution. By incorporating the requirement of stating reasons for withholding approval to the notice of retirement, Rule 66(5) of the Pension Rules can be read as to satisfy the constitutional requirement of 'reasonableness' which is a well settled rule of statutory construction to sustain the constitutionality of a Statute. We, thus, reject the contention raised on behalf of the petitioner that Rule 66(5) of the Pension Rules is arbitrary, discriminatory and violative of Article 14 of the Constitution.

16. However, although Rule 66(5) of the Pension Rules may not be arbitrary, discriminatory or constitutionally infirm, the action taken thereunder by the appointing authority may suffer from the above vice and, can therefore, be challenged as violative of Article 14 of the Constitution. In other words, it is open to the Government servant to show that the appointing authority has not given any reasons at all for not granting approval to the withdrawalof notice of retirement or that the reasons given by it are not good or valid reasons in the sense that they are not germane to the question of permitting or not permitting the withdrawal of notice of retirement. The learned counsel for the petitioner has urged that the reasons given by the learned District Judge are not valid reasons as contemplated by Rule 66(5) of the Pension Rules and, therefore, his order dated 1-10-1992 rejecting the application of the petitioner for permitting him to withdraw his notice of retirement unconditionally, is illegal and bad in law.

17. In considering the question whether the action taken by the learned District Judge in refusing permission to the petitioner to withdraw his notice of retirement is for proper and valid reasons, it is first necessary to refer to the application of the petitioner dated 25-8-1992 by which he has sought to withdraw the notice of retirement dated 31-7-1992 upon certain conditions hereinbelow mentioned. He has stated in the said application dated 25-8-1992 that he had been ill for about two years and, therefore, he should be exempted from typing work and should be given some light work. He has further stated in the said application dated 25-8-1992 that there is heavy work in the court for the Stenographer which, because of his ill health, he cannot undertake. He has then stated in the said application dated 25-8-1992 that he has been put to a great loss and, therefore, he should be transferred from Washim to Akola and his leave salary should also be sanctioned.

18. The learned District Judge has considered the above application dated 25-8-1992 seeking conditional withdrawal of notice of retirement dated 31-7-1992 in his order dated 1st September, 1992 in which he has pointed out that the petitioner who was originally working as Stenographer in the office of the District Government Pleader was not ready to work in the Court where he was transferred but had made applications for leave on the ground of his prolonged illness several times. According to him, in his leave application, he had stated that he was a patient of Hypertension and that he was not able to cope up with the work of stenography for which reason he had claimed posting on a clerical table. The learned District Judge was of the view that it was not possible to give posting to the petitioner on clerical table by giving him higher pay of stenographer. He also pointed out that his suggestion to the petitioner to voluntarily accept demotion to the clerical post was not acceptable to him. He then observed that the office of the District Government Pleader where the petitioner was serving for a long time, was not ready to accommodate him again as it had a full complement of stenographers and it did not want to lose a competent stenographer in favour of the petitioner. Lastly, he stated in his order dated 1-9-1992 that he felt that on humanitarian ground, he should allow his request and keep him under supervision for some time. However, since the above application of the petitioner dated 25-8-1992 for withdrawal of his notice of retirement contained conditions precedent which reflected his abnormal behaviour, he expressed his inability to concede to his request for withdrawing his notice of voluntary retirement. He thus rejected his application dated 25-8-1992.

19. It is thereafter that the petitioner had submitted an application to the learned District Judge on 25-8-1992 by which he had sought to withdraw the notice of retirement unconditionally. However, perusal of the said application dated 25-8-1992 would show that according to him, he was not in good health and because of his ill health and the mental condition, he had submitted the application for premature voluntary retirement out of sheer frustration and mental agony. He had then stated that he had yet 15 years to go before reaching the age of superannuation and that for maintaining his family also he should be allowed to withdraw his resignation.

19A. By his order communicated to the petitioner on 1-10-1992 by the Registrar, District Court, Akola, the learned District Judge has rejected his aforesaid application dated 25-9-1992. It is stated in the said order dated 1-10-1992 that the learned District Judge has on careful consideration of the grounds raised therein by the petitioner and after going through the earlier office orders, rejected the said application dated 25-9-1992 for withdrawal of notice of retirement dated 31-7-1992 unconditionally.

20. The learned counsel for the petitioner has first urged before us that no reasons whatsoever are given by the learned District Judge in his impugned order dated 1-10-1992 for not permitting the petitioner to withdraw his notice of retirement unconditionally and, therefore, his order is liable to be set aside on this short ground. In our view, there is no merit in the above contention raised on behalf of the petitioner. Perusal of the order dated 1-10-1992 would show that the learned District Judge had before him and has perused the grounds raised by the petitioner in his application dated 25-9-1992 seeking unconditional withdrawal of the notice of retirement. He has also perused all the earlier office orders. In fact, a very elaborate order is passed by the learned District Judge in his matter on 1-9-1992 when he rejected the application of the petitioner dated 25-8-1992 seeking conditional withdrawal of the notice of retirement dated 31-7-1992. The said order dated 1-9-1992 had been passed by him just a few days back when he had before him the whole of the service history of the petitioner. It is clear that by his impugned order dated 1-10-1992 the learned District Judge has rejected the application of the petitioner dated 25-9-1992 seeking unconditional withdrawal of his notice of retirement for all the reasons which he has given in his earlier office orders and in particular his order dated 1-9-1992 rejecting the application of the petitioner dated 25-8-1992 seeking conditional withdrawal of his notice of retirement dated 31-7-1992. The above contention raised on behalf of the petitioner cannot thus be accepted.

21. In order to appreciate the reasons why the learned District Judge rejected the application of the petitioner dated 25-9-1992 seeking unconditional withdrawal of the notice of voluntary retirement dated 31-7-1992, it will be useful to understand the background of the instant case. Initially, it appears that the petitioner was working for a long time in the office of the District Government Pleader, Akola. In November, 1990, however, on administrative grounds, he was posted in the Court of the 2nd Joint Civil Judge, Senior Division, Akola. Instead of obeying the posting order, the petitioner proceeded on medical leave on 9-11-1992. After the expiry of his leave, he was reposted in the Court of the 4th Joint Civil Judge, Senior Division, Akola who reported to the learned District Judge, Akola vide Annexure-A to the affidavit of the learned District Judge dated 31-10-1992 that the petitioner had no capacity to take down the dictation in the language of stenography and that he had himself requested him to give dictation directly on typewriting in regard to which also he found that he had committed many mistakes because of which it was difficult for him to dispose of the cases by judgment.

22. It appears that the petitioner had made several complaints and representations to the administrative side of this Court claiming transfer back to the office of the District Government Pleader, Akola in regard to which the then District Judge submitted his report to this Court on 3-9-1991. The petitioner had submitted several applications for grant of medical leave which are annexed to the affidavit of the learned District Judge referred to above from which it is clear that even according to the petitioner, he could not cope up with the work in the court and that he wanted some light work to be assigned to him. In the meanwhile it also appears that the petitioner was transferred to Washim Court where he did not initially join. By his application dated 23-7-1992, he requested for his transfer back to Akola from Washim Court on the ground of his ill health as well as for family reasons. The learned District Judge considered the said application dated 23-7-1992 and by a detailed order dated 28-7-1992 referring to all the facts hereinbefore stated, rejected the said application dated 23-7-1992 and directed the petitioner to join the new posting at Washim Court failing which he was informed that for insubordination and for not complying with the transfer order, disciplinary action would be taken against him. It was also pointed out to him that on the ground of inefficiency, he could be compulsorily retired by following the procedure of departmental enquiry.

23. It is material to see that it is after this drastic order passed by the learned District Judge on 28-7-1992 that the petitioner joined at Washim. However, at Washim he did not do any work, but immediately on 31 -7-1992 he sent an application from Akola to the Civil Judge, Senior Division, Washim that since he was seeking voluntary retirement with effect from 5-11-1992, he should be granted medical leave which is due to him as well as earned leave. He also enclosed along with the said application dated 31-7-1992 the notice for voluntary retirement dated 31-7-1992 in triplicate expressing his desire to retire with effect from 5-11-1992 which, according to him, was three months' notice from 5-8-1992.

24. The above facts gathered from the previous applications of the petitioner and the orders passed thereon by the learned District Judge clearly reveal that even according to the petitioner himself, he cannot cope up with the work of stenography and even the typing work in the Court for which reason he had requested that he should be given some lighter work which, as shown above, could not be given to him since he was not ready to accept the lower post. The report of the learned Civil Judge, Senior Division with whom he had worked for some time shows that he cannot properly take down dictation in the language of stenography and even as regards his typing work he commits many mistakes. In fact, because of his inefficiency and also because he refused to obey the order of transfer to Washim Court, a disciplinary action was contemplated against him to avoid which, it appears, that he has preferred to opt for voluntary retirement.

25. The reason given by the petitioner for not being fit to discharge the duties of a Stenographer in the Court which, according to him, are heavy and therefore for claiming assignment of lighter work is his alleged prolonged illness for which from time to time his medical leave as applied for was sanctioned. Even then, as is clear from his application dated 25-8-1992 for conditional withdrawal of his notice of retirement, it does not appear that his health improved and that he was fit to discharge his duties till the date of the above application dated 25-8-1992. It is difficult to believe that his health would improve within a month and that he would be fit to discharge his duties in the Court as Stenographer when he submitted an application on 25-8-1992 for unconditional withdrawal of his notice for voluntary retirement. It is material to see in this regard that the petitioner himself has stated in his application dated 23-7-1992 for cancellation of his transfer to Washim Court upon which the order is passed by the learned District Judge on 28-7-1992 that for gaining speed in his work as Stenographer whether in the Court or in the Office of the District Government Pleader he would require and should be granted two years' time. The application dated 25-9-1992 for unconditional withdrawal of notice of retirement is thus a camouflaged application because on the date of the said application i.e. 25-9-1992 the petitioner was not fit to discharge the duties of his post.

26. It is worthwhile to notice in the instant case the observations of the Supreme Court in the case of the Workmen of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. vs. The Management of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd., AIR 1962 SC 1363. In the context of the question whether the employees concerned therein could be said to be retrenched within the meaning of the definition of the expression "retrenchment" given in section 2(oo) of the Industrial Disputes Act, 1947, the Supreme Court has observed in para 8 of its judgment in the said case that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in the workman. Where, therefore, a workman is discharged on the ground of ill health, it is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. It is clear from the facts narrated above that since the petitioner was unfit to discharge his duties as Stenographer, his contract of service had really come to an end itself and it was futile to allow him to withdraw his notice of voluntary retirement as it is clear from the facts narrated above that he could not discharge the duties undertaken by him as per his order of appointment.

27. It is the above background of facts and reasons which was in his mind before the learned District Judge when he referred to the previous office orders in his impugned order dated 1-12-1992 rejecting the application of the petitioner dated 25-9-1992 for unconditional withdrawal of his notice of retirement as his previous orders read with the applications of the petitioner upon which they were passed clearly showed that even if the petitioner would have been allowed to withdraw his notice of retirement, he would not have been able to discharge his duties in the Court as a Stenographer. In fact, after having avoided disciplinary action and having got his medical leave sanctioned on the ground that he would voluntarily retire from his service, it was not open to the petitioner to withdraw his notice of retirement. If that is so, it cannot be said that there are no valid reasons for not allowing the petitioner to withdraw his notice of voluntary retirement. The impugned order of the learned District Judge dated 1-12-1992 cannot be said to be illegal or perverse and no interference is called for in the same. At any rate this is not a fit case in which this Court should exercise its extraordinary discretionary jurisdiction under Article 226 of the Constitution.

28. In the result, the instant writ petition fails and is dismissed. The learned counsel for the petitioner has urged before us that the petitioner wants to approach the Administrative side of the High Court for sympathetic consideration of his case. It is open to him to do so. No costs.

Petition dismissed.