W. P. No. 2426 of 1994

18th August, 1994

Petitioner Counsel: Mrs. Suhasini Mutalik
Respondent Counsel: Mrs. V. S. Dighe, R. S. Mohite

JUDGMENT

G. R. MAJITHIA, J. :- Rule.With the consent of the learned counsel for the parties, Rule made returnable forthwith.

Learned counsel for the respondents waive service.

The petitioner has challenged the orders contained in letters dated December 15, 1989 and September 7, 1993 issued by Joint Secretary, Rayat Shikshan Sanstha, Satara, in this petition under Article 226 of the Constitution.

2. Facts first :

New English School, Kawathe, Yamai, Taluka Shirur, District Pune, (hereinafter referred as "the School") is managed by Rayat Shikshan Sanshta, (hereinafter referred to as "the Sanstha"). The School is a Government recognised and aided secondary school receiving, aid from the State of Maharashtra. The petitioner joined the service of the School as a part time Clerk with effect from June 16, 1968 and as a full time Clerk with effect from March 1, 1969. The petitioner wrote a letter dated September 9, 1989 to the Secretary of the Sanstha saying that he had completed more than 20 years (20 years and 6 months) of continuous service with the School and wished to take voluntary retirement from service from December 12, 1989 as per the Government Resolution No. PEN/1078/1005/(2605) Secondary Edu. 6, dated September 9, 1988. It was further stated in the letter that 3 months' notice was being served and he be allowed to take voluntary retirement from December 12, 1989. The petitioner addressed another letter to the Joint Secretary of the Sanstha on September 12, 1989 in which he stated that he was suffering from spondylitis and he had made repeated requests to assign him some other work but the request was not acceded to and requested that he be relieved from service from December 12, 1989. The Sanstha wrote a letter dated December 15, 1989 to the petitioner intimating him that his letter of resignation dated September 12, 1989 was received and his resignation was accepted with effect December 13, 1981 (sic). The letter further says that the resignation was accepted subject to certain conditions mentioned therein. The letter is in Marathi script and the English translation of the relevant portion reads thus :

"Subject :- Letter of acceptance of resignation.

Received your letter of resignation sent by you on the date 12-9-1989. Your resignation has been accepted from the date 13-12-1981 (sic) on the following conditions subject to the approval of the Executive Committee of the Institution. Accordingly, you are required to relieve from the service of the Institution on the date 12-12-1989 after office hours. It is necessary to fulfil the said conditions before relieving from service.

x x x

x x x"

The Sanstha wrote another letter dated September 7, 1993 to the petitioner intimating him that his resignation from December 13, 1989 was accepted by Executive Committee meeting's Resolution No. 70 dated February 17, 1990; that his request for cancellation of resignation cannot be accepted; and that the benefit of voluntary retirement scheme cannot be granted. This letter is also in Marathi script and the English translation of the relevant portion of this letter is as under :-

"Subject :- Regarding granting Voluntary Retirement.

With reference to the aforesaid subject, you are informed that prior to this your resignation had been accepted from the date 13-12-1989 under Executive Committee meeting's Resolution No. 70, dated 17-2-1990 (with proper three months' notice).

As per your application dated 23-8-1992, you had requested to cancel the resignation and to grant voluntary retirement, pension andbenefit of gratuity. The discussion in this respect was held on the date 28-8-1993 in the meeting of the Executive Committee and your request has been rejected.

x x x"

3. The solitary question that arises for determination is whether the petitioner has resigned from service or has sought voluntary retirement in terms of the Government Resolution dated September 9, 1988. English translation of the petitioner's letter dated September 9, 1989 by which he sought voluntary retirement reads thus :-

			“Anandrao Dhondiba Kandalkar
			Clerk, New English School, Kavathe (Yemai) Taluka Shirur, District Pune. Date : 9-9-1989
	To The Secretary, Rayat Shikshan Sanstha, Satara.
	Subject :	Three months’ advance notice in respect of voluntary retirement after 20 years’ qualifying service.
	Reference :	Maharashtra Government Resolution No. PEN/1078/1005/(2605) Secondary Edu. 6, dated 9th September, 1988 [Paragraph No. 3(A)].
	Sir,
I humbly submit as follows :— I am working in your institution as part time Clerk from the date 16-6-1968 and as full time clerk from the date 1-3-1969. My particulars are as under :—

1. Full Name	— Shri Anandrao Dhondiba Kandalkar
2. Date of birth	— 1-6-1949
3. Qualification	— S.S.C.
4. Designation	— Clerk
5. Date of appointment	— Part time — 16-6-1968
	— Full time — 1-3-1969
6. Place (Branch)	— New English School, Kavathe      (Yemai), Taluka Shirur,      District Pune.

I have completed more than 20 years (20 years and 6 months) of my services continuously. I wish to take “Voluntary retirement” from the date 12-12-1989 as per the Government Order referred in the reference of this letter.
I, therefore, give three months’ advance notice under this letter and request you to kindly accept my voluntary retirement from the date 12-12-1989. May this be known.
			Yours faithfully, Sd/- 9-9-1989 (Shri Anandrao Dhondiba Kandalkar)”

In this letter the petitioner had made a mention of the Government Resolution entitling him to claim voluntary retirement on completion of 20 years' continuous service. The petitioner indisputably had completed 20 years of continuous service on the date he asked for voluntary retirement. The Sanstha has not taken any decision on the petitioner's request for grant of voluntary retirement as contained in his letter dated September 9, 1989. In this letter dated September 12, 1989, the petitioner had made a grouse for not assigning him any other work other than the one which he was performing. In the concluding portion of this letter he mentioned that he will be deemed to have been relieved from service with effect from December 12, 1989. The letter dated September 12, 1989 does not mention about resignation or about voluntary retirement. His request for relieving him from service could only be acceded to if his request for voluntary retirement had been accepted. The letters dated September 12, 1989 and September 9, 1989 have to be read together. In his letter dated September 9, 1989 the petitioner served 3 Months' notice as contemplated under the Rules. Three months' notice has only to be given when an employee seeks voluntary retirement. Under the letter dated September 9, 1989, the three months' period will only expire on December 9, 1989 and it was for this reason that he had stated in the letter dated September 9, 1989 that his request for voluntary retirement will become effective from December 12, 1989. In his letter dated September 12, 1989, the petitioner again mentions that he be relieved from service from December 12, 1989. This obviously has a reference to his letter dated September 9, 1989. In his letter dated September 12, 1989, the petitioner has used Marathi words "Seva Mukti". The Marathi words "Seva Mukti Suchana" mean notice of discharge. (See Government of Maharashtra publication - 'Prashasan Vakprayog', page 306). The meaning in Marathi of the word 'discharge' is 'Mukta Karane' (as from service). (See Government of Maharashtra publication - "Shashan Vyavahar Kosha', page 171). The Sanstha is in error in construing the contents of the letter dated September 12, 1989 as a resignation. A plain reading of this letter will not even remotely suggest that the petitioner had resigned from service. The Sanstha did not take any action on the petitioner's letter dated September 9, 1989. The letter in unequivocal terms suggests that the petitioner had served 3 months' notice of voluntary retirement for availing the benefits of Government Resolution No. PEN/1078/1005/(2605) Secondary Edu. 6, dated 9th September, 1988.

4. The Government Resolution says that the employees, viz. teaching and non-teaching staff of Government aided and recognised secondary schools who had completed 20 years of service can avail of earlier voluntary retirement and such persons would be eligible for pension and other terminal benefits. Rule 66 of the Maharashtra Civil Services (Pension) Rules, 1982 will mutatis mutandis apply to the employees like the petitioner. Rule 66 reads thus :-

"i) At any time after a Government servant has completed 20 years of qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire him from service.

ii) The notice of voluntary retirement given under Sub-Rule (i) shall require acceptance by the Appointing Authority provided that theappointing 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;..."

The reading of this Rule postulates that the Government employee on completion of 20 years of qualifying service can give 3 months' notice in writing to the appointing authority to retire him from service. The appointing authority can refuse permission for retirement before the expiry of the period specified in the notice. If it does not refuse permission, the retirement shall become effective from the date of expiry of 3 months' period. In the instant case, the appointing authority did not reject the petitioner's request for voluntary retirement. The petitioner has submitted a notice as contemplated under Rule 66 and it will be deemed to have become effective after the expiry of the period of notice. The appointing authority of the petitioner has erred in refusing the request of the petitioner for voluntary retirement.

5. For the reason stated above, the orders contained in the letters dated December 15, 1989 and September 7, 1993 are quashed and set aside. The petitioner will be deemed to have retired from service with effect from December 12, 1989. He is entitled to all the retiral benefits as are permissible under the Rules. The respondents are directed to release the retiral benefits within three months from today. Writ to issue to the respondents in these terms. Rule is made absolute.

Rule made absolute.