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CASE NO.: Appeal (civil)  59 of 2004

PETITIONER: Ashok Kumar Sahu

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 08/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T  

S.B. Sinha, J.

The appellant is a member of Indian Police Service.  The Joint Cadre  of Assam and Meghalaya was assigned to him.  However, on or about  4.6.1997, he was placed under suspension.  Disciplinary proceedings were  also initiated against him.  Statement of imputation of misconduct was  served upon him on 9.7.1997.  On his completion of 20 years of service, he  expressed his desire to retire from the services with effect from 1.8.1997 in  terms of Sub-rule 2A of Rule 16 of the All India Services (Death-cum- Retirement Benefits) Rules, 1958 (’the Rules’, for short) by a notice dated  30.4.1997 addressed to the Chief Secretary, Government of Assam, which  reads as under :

"To The Chief Secretary to the Govt. of Assam,  Dispur, Guwahati-6

Sub:  VOLUNTARY RETIREMENT FROM ALL  INDIA SERVICES.

Ref :  Under  Sub-Rule (2A) of  Rule 16 of  the  All India  Services (Death-cum-Retirement Benefits) Rules  1958.

Sir,  

I have the honour to inform you that on personal  grounds I would like to quit the Indian Police Service, on  voluntary retirement, to which I was recruited on the  basis of the examination held in 1974 and allotted to the  Joint Cadre of Assam and Meghalaya, with 1975 as the  year of allotment.

Whereas, I will be completing 22 years of service  as on the 16th July, 1997; I intend to voluntarily retire  from service with effect from the 1st August, 1997  afternoon.

Meanwhile, I would like to request you to kindly  issue necessary directions so that my pension papers are  processed and finalized as per existing rules, and oblige.

                                               Yours faithfully,

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                                                       Sd/-                                                   (A.K. Sahu)"

He, however, did not receive any communication in regard to the  acceptance of the said offer before the said date either from the Union of  India from the State of Assam.  The Government of Assam vide its letter  dated 26th May, 1997, forwarded the said request of the appellant for its  approval by the Ministry of Home Affairs.  The Central Government  referred the matter to the Joint Cadre Authority, which agreed to accept the  request of the appellant to go on voluntary retirement without prejudice to  the existing disciplinary proceedings against him.  The resolution of the  Joint Cadre Authority reads thus :

"After perusal of the representation of Shri A.K.  Sahu, IPS praying for voluntary retirement with effect  from 1.8.1997 under rule 16(2A) of the All India  Services (DCRB) Rules, 1953, the Joint Cadre Authority  is of the view that Shri Sahu may be allowed to go on  voluntary retirement without prejudice to the existing  disciplinary proceedings against him."

 On 1.8.1997, the Home Secretary, Assam, Dispur sent a W.T.  message to the Home Secretary, New Delhi stating :

"NO. HMA (IPS) 58/Pt.V/36 DATED 1.8.97 (.)  KINDLY REF. MINISTRY’S LETTER NO.  31012/4/97-II DATED 27.5.97 REGARDING  VOLUNTARY RETIREMENT OF SHRI A.K. SAHU,  IPS (U/S)(.)  JOINT CADRE AUTHORITY HAS  APPROVED OF THE VOLUNTARY RETIREMENT  OF SHRI SAHU, AND THE RESOLUTION OF THE  JOINT CADRE AUTHORITY IS SENT BY POST (.)   FOR KIND INFORMATION (.)"

On receipt of the said W.T. message, the Central Government  communicated its approval through fax message dated 13th August, 1997 to  the Chief Secretary of the Government of Assam, Dispur, which reads as  under :

"APPROVAL OF THE GOVT. OF INDIA IS HEREBY  CONVEYED TO THE ACCEPTANCE OF THE  REQUEST OF SHRI A.K. SAHU, IPS (A&M: 75) TO  RETIRE VOLUNTARILY FROM SERVICE WITH  EFFECT FROM 1.8.1997 WITHOUT PREJUDICE TO  THE ON-GOING DISCIPLINARY PROCEEDINGS (.)   REQUEST TO ISSUE NECESSARY ORDERS/  NOTIFICATIONS ACCORDINGLY (.)"   

By reason of a notification dated 8.9.1997, the appellant was  communicated that the Governor of Assam has accepted his voluntary  retirement in the following terms :  

"The Governor of Assam is pleased to accept the  prayer for voluntary retirement tendered by Shri A.K.  Sahu, IPS (U/S) and to allow Shri Sahu to go on  voluntary retirement with effect from 1-8-97 (F.N.)  without prejudice to the ongoing Disciplinary  proceedings against him."

Questioning the legality of the said communication, a writ petition

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was filed by the appellant before the Gauhati High Court.  A Division Bench  of the said High Court dismissed the said writ petition opining that the  request of the appellant for voluntary retirement being accepted by the Joint  Cadre Authority and a notification having been given effect thereto, no  irregularity or illegality can be said to have been committed by the  respondents.  The appellant is, thus, before us.        

The appellant, who appeared in person, has raised the following  contentions in support of this appeal :  

(i)     In terms of the proviso appended to Rule 16 (2A), the State of  Assam could not have accepted the offer of voluntary retirement; (ii)    The offer of the appellant to retire voluntarily could have been  accepted only prior to 1.8.1997 in terms of the circulars issued by the  Central Government, as the employee has a right to withdraw the offer even  after acceptance by the State Government;

(iii)   The respondents being public authorities, were bound to follow  the Rules laid down by the Central Government which alone could have  applied its mind to the request of the appellant and not the State of Assam.

The learned counsel appearing on behalf of the respondents, on the  other hand, submitted that \026  

(i)     The Central Government having approved the proposal of the  Joint Cadre Authority, the requirements of the Rules have substantially been  complied with;   

(ii)    It was not necessary to accept the offer of the appellant on or  before 1.8.1997 in view of the extant Rules;

(iii)   The appellant having withdrawn his offer only in 1999, i.e.,  much after acceptance of his offer, it was invalid in law.   

(iv)    Concededly the matter relating to voluntary retirement on the  part of an employee belonging to an All India Services is governed by the  said Rules;

In law, offer of voluntary retirement can be made and accepted in  terms of the said Rules, inter alia, in three different situations :

(a)     On completion of 20 years’ of service;

(b)     When an employee is placed under suspension; and

(c)     If he has completed more than 20 years’ of service or 50  years of age.

Whereas in the first situation acceptance of the proposal is not  required, in the second and third, acceptance of the offer by the competent  authority would be required.  The appellant was born on 23rd January, 1953.   He was directly appointed as a member of the Indian Police Service on  16.7.1975.  Indisputably, the conditions of services are governed by the  provisions of the All India Services Act, 1951 and the Rules and Regulations  framed thereunder.  He belonged to Joint Cadre of Assam & Meghalaya.  It  is not in dispute that by a notice dated 30th April, 1997, he sought for  voluntary retirement with effect from 1.8.1997.   In terms of Sub-rule (2) of Rule 16 of the Rules, an employee may  retire from his services after giving at least three months’ previous notice in  writing to the State Government on the date on which he completes 30 years  of qualifying service or 50 years of age or any date thereafter specified under  the scheme.  The proviso appended to the said Rule states that no member of  the service under suspension shall retire from service except with specific  approval of the State Government concerned.  

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Sub-rule (2A) of Rule 16, with which we are concerned herein, reads  as under :       

"(2A)   A member of the service may, after giving three  months’ previous notice in writing to the State  Government concerned, retire from service on the date on  which he completes 20 years of qualifying service or on  any date thereafter to be specified in the notice.

Provided that a notice of retirement given by a member  of the service shall require acceptance by the State  Government if the date of retirement on the expiry of the  period of notice would be earlier than the date on which  the member of the service could have retired from service  under sub-rule (2)"

The said Rule, however, was amended by a notification dated  1.7.1988 in the following terms : "In rule 16 of the All India Services (Death-cum- Retirement-Benefits) Rules, 1958 \026 (i)     in the proviso to sub-rule (2), for the words  "State Government concerned", the words "Central  Government" shall be substituted; (ii)    in the first proviso to sub-rule (2A), for the  words "State Government concerned", the words  "Central Government" shall be substituted."

In view of the said amendment, thus, an offer of retirement made by a  member of service requires acceptance by the Central Government and not  by the State Government.  The materials on records, as noticed hereinbefore,  clearly point out that the authorities proceeded on the basis of the Rules prior  to amendment.  In terms of the amended Sub-rule (2A) of Rule 16, the offer  of the appellant was required to be accepted by the Government of India and  not by the Joint Cadre Authority.  The question of application of mind by the  Joint Cadre Authority for the purpose of acceptance of the said offer and/or  approval thereof by the Government of India does not arise.  At the first  instance it was obligatory on the part of the competent authority of the  Central Government to apply its own mind and pass an appropriate order.   The competent authority could not have delegated its power to the Joint  Cadre Authority or for that matter, the State of Assam.  

       It is not denied or disputed before us that acceptance of the offer of  the appellant by the Central Government was necessary on two counts :      (1) The appellant was under suspension; and (2) it was imperative in terms  of the proviso appended to Sub-rule (2A) of Rule 16.

       When terms and conditions of service of an officer are governed by  the All India Services Rules, the State Government exercises delegated  power.  Prior to amendment of the Rules, the State Government was the  competent authority to accept such offer of voluntary retirement, whereas  after the amendment, it is the Central Government alone which is competent  therefor.  Cessation of a contract of employment or status in law would be  completed in terms of the provisions of the Rules when the competent  authority passes an appropriate order.  The action, in terms of the Rules, can  be taken by the prescribed authority alone and not by any other authority.   An order passed by an authority without jurisdiction would be non-est in the  eyes of law.  It is coram non judice.   

In State (Anti Corruption Branch) Govt. of NCT of Delhi & Anr.  vs. Dr. R.C. Anand & Anr. [(2004) 4 SCC 615], it was held :     "The validity of the sanction would, therefore, depend  upon the material placed before the sanctioning authority and  the fact that all the relevant facts, material and evidence

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including the transcript of the tape record have been considered  by the sanctioning authority.  Consideration implies application  of mind.  The order of sanction must ex facie disclose that the  sanctioning authority had considered the evidence and other  material placed before it.  This fact can also be established by  extrinsic evidence by placing the relevant files before the Court  to show that all relevant facts were considered by the  sanctioning authority, [See Jaswant Singh v. State of Punjab  (AIR 1958 SC 124) and State of Bihar v. P.P. Sharma (1992  Supp(1) SCC 222)]."

The expression "approval" presupposes an existing order.  "Acceptance" means communicated acceptance.  A distinction exists  between the expressions "approval" and "acceptance".  Whereas in the  latter, an application of mind on the part of the competent authority is sine  qua non, approval of an order only envisages statutory entitlement.   Approval of an order is required as directed by the statute.  It can be given a  retrospective effect.  Even valid contract comes into being only after the  offer is accepted and communicated.  Where services of an employee are  dispensed with, the order takes effect from the date when it is communicated  and not from the date of passing of the order.  {See State of Punjab vs.  Amar Singh Harika [AIR (1966) SC 1313].}  

       We are, however, not oblivious of the fact that under certain  circumstances, the expression, "approval" would mean to accept as good or  sufficient for the purpose of intent.  Ratification is noun, of the verb "ratify".  It means the act of ratifying, confirmation, and sanction. The expression  "ratify" means to approve and accept formally. It means to conform, by  expressing consent, approval or formal sanction. "Approve" means to have  or express a favourable opinion of to accept as satisfactory. In the instant  case, there was no question of any ratification involved as wrongly assumed  by the High Court.  {See Maharashtra State Mining Corpn. Vs. Sunil, s/o  Pundikarao Pathak [(2006) 5 SCC 96].}

       We are, not concerned with such a case herein.

We have made the aforementioned observations keeping in view the  fact that if the Central Government intended to consider the matter from the  latter angle, it would have communicated the same to the appellant directly.   It did not do so.  It approved the action of the Joint Cadre Authority. It  directed the State of Assam to issue orders/notifications accordingly.  As the  offer of the appellant was to be accepted by the Central Government and  communicated to him, the issuance of notification dated 1.8.1997 by the  Governor of Assam accepting the said offer is bad in law.  

       We, however, as at present advised, do intend to finally determine the  question raised by the appellant that the acceptance was required to be  communicated before 1.8.1997.  When an employee offers to retire from  service, his offer cannot be said to have accepted automatically unless the  rule provides therefor.   

We may, however, notice some of the decisions cited at the bar.     

       In Balram Gupta vs. Union of India & Anr. [(1987) Supp SCC   228], this Court was concerned with Rule 48-A of the Central Civil Services  (Pension) Rules, 1972.  This Court observed : "The appellant states that three months notice was  required by the rules of service to which the appellant  belonged. The said voluntary retirement was sought  under Rule 48-A of the Central Civil Services (Pension)  Rules, 1972 (hereinafter referred to as ’the Pension  Rules’). The Rule 48-A provides as follows: 48-A. Retirement on completion of 20 years’  qualifying service: (1) At any time after a

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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. (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."

       This Court therein was concerned with a contention raised by the  appellant that the authorities could not have withheld the permission sought  for by him to retire voluntarily.  In that case the appellant sent his letter on  24th December, 1980 seeking voluntary retirement from service, which was  stated to have been accepted by an order dated 20th January, 1981 with effect  from 31st March, 1981.  The appellant withdrew his offer seeking voluntary  retirement by a letter dated 31st January, 1981.  This Court held that he was  entitled to do so and there was no valid reason to withhold the permission of  the respondents stating : "We hold, therefore, that there was no valid reason  for withholding the permission by the respondent. We  hold further that there has been compliance with the  guidelines because the appellant has indicated that there  was a change in the circumstances, namely, the persistent  and personal requests from the staff members and  relations which changed his attitude towards continuing  in government service and induced the appellant to  withdraw the notice. In the modern and uncertain age it is  very difficult to arrange one’s future with any amount of  certainty, a certain amount of flexibility is required, and  if such flexibility does not jeopardize government or  administration, administration should be graceful enough  to respond and acknowledge the flexibility of human  mind and attitude and allow the appellant to withdraw his  letter of retirement in the facts and circumstances of this  case. Much complications which had arisen could have  been thus avoided by such graceful attitude. The court  cannot but condemn circuitous ways "to ease out"  uncomfortable employees. As a model employer the  government must conduct itself with high probity and  candour with its employees."   We are not concerned with such a situation in this case.

In Himachal Pradesh Horticultural Produce Marketing &  Processing Corporation Ltd. vs. Suman Behari Sharma [(1996) 4 SCC  584], this Court was concerned with a rule in terms whereof the request of  the employee to retire from service would become effective only if he is  permitted to retire.   

       In State of Haryana and Others vs. S.K. Singhal [(1999) 4 SCC  293], this Court again was dealing with a matter where an automatic  retirement was claimed.   Cases of voluntary retirement can broadly be divided into the following  three categories:

(i)     Where voluntary retirement is automatic and comes into force on  the expiry of notice period; (ii)    When it comes into force; unless an order is passed within the  notice period withholding permission to retire, and

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(iii)   When voluntary retirement does not come into force unless  permission to this effect is specifically granted by the Controlling  Authority.

       Jagannadha Rao, J. in State of Haryana & Ors. vs. S.K. Singhal  [(1999) 4 SCC 293], interpreting sub-rule (1) of Rule 5.32 (B) of the Punjab  Civil Services Rules (Vol. II) noticed that the same contemplated "notice to  retire" and not a request seeking permission to retire.  Proviso appended to  the said sub-rule (2) of Rule 5.32 (B) comprehended a positive provision that  "where the appointing authority does not refuse to grant the permission for  retirement before the expiry of the period specified in sub-rule (1), the  retirement shall become effective from the date of expiry of the said period".   It was, thus, held that in terms of the said Rules, the rejection of offer to  retire voluntarily was to be communicated within the notice period.  In view  of the aforementioned provisions, the Court preferred to follow Dinesh  Chandra Sangma v. State of Assam [(1977) 4 SCC 441] and B.J. Shelat  v. State of Gujarat [(1978) 2 SCC 202] wherein it was held that if no order  of refusal has been passed within the notice period, the voluntary retirement  would take effect automatically.  

       We are, however, not concerned with any of the aforementioned  category of cases.  In fact it is a reverse situation.  The proviso appended to  Sub-rule (2A) of Rule 16 mandates acceptance by the Central Government.   It although does not specify a date for communicating such acceptance but  ordinarily such acceptance should be within the period of notice so as to  make cessation of contract of employment complete.  

We may observe that an appropriate order should be passed within a  reasonable period.  Normally, three months notice is required to be given as  the said period is considered to be reasonable and it is expected that a  decision would be taken within the said period.  But the rule is not an  inflexible one.  It would depend upon the facts and circumstances of each  case.         The Appellant, as noticed hereinbefore, withdrew his offer only in  1999 by a letter dated 10.8.1999 which was impermissible as prior thereto  the offer had already been accepted and a notification had also been issued.

       However, our findings aforementioned on the first contention of the  appellant would not mean that we would exercise our discretionary  jurisdiction in favour of the Appellant.  The Appellant did not assign any  specific reason as to why he intended to retire.  Admittedly, a disciplinary  proceeding was initiated against him and he was placed under suspension.   He did not withdraw his offer even after he was placed under suspension.   Even then the matter was considered by the Joint Cadre Authority and it  recommended acceptance thereof subject to the disciplinary proceedings.   The Appellant must be aware of the stand taken by the authority but despite  the same, he did not withdraw his offer.  In the disciplinary proceedings no  action was taken against him and only a punishment of censure was imposed  only on the premise that the Appellant had already made an offer of  voluntary retirement.  Acceptance of the offer of the appellant for voluntary  retirement by the Authority must be judged only on that premise.   

Although legally the Appellant is right that his offer should have been  accepted by the Central Government, and the same should have been  communicated to him, we are satisfied that the Central Government  proceeded on a wrong premise by approving the proposal and not accepting  the offer.  A wrong procedure was adopted by it in not communicating the  order of the acceptance.  It has been accepted that the Central Government  has communicated its decision only to the State Government.   

The main thrust of the Appellant had all along been on the payment of  terminal benefits.   

A Three Judge Bench of this Court by an order dated 29.07.2002  directed the State of Assam to pay terminal benefits to the Appellant.  

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Although the Appellant was represented by an advocate, it appears, when  this Court on 25.4.2003 upon hearing the parties was about to dictate an  order, a submission was made by him that his retrial terminal benefits have  not been paid and he was not in a position to engage an advocate, whereupon  the Supreme Court Legal Services Committee was requested to engage an  advocate on his behalf.  The said direction was complied with.  From the  proceeding sheet dated 5.8.2003, it appears that a Division Bench of this  Court dismissed the Special Leave Petition recording :

"Learned counsel for the petitioner states that pension  papers would be submitted within 15 days.  Learned  counsel for the respondents state after proper verification  retiral benefits would be paid to the petitioner within one  month thereof.  We, direct that the said amount shall be  paid with 6 per cent simple interest from the date of  acceptance of voluntary retirement."

       However, on an application filed for restoration of the said order the  matter was restored.  Yet again a Three Judge Bench of this Court, albeit  without prejudice to the rights and contentions of the parties, noted that the  Appellant would submit his pension papers within 15 days from the said  date and the State of Assam was directed to pay the terminal benefits with  simple interest at the rate of 6% with effect from the date on which the  Second Respondent alleged that he had retired.  Pursuant to or in furtherance  of the said order, the Appellant submitted his pension papers.  He is said to  have made certain corrections as regards the bank account in which the  amount was to be deposited.           The learned counsel appearing on behalf of the State of Assam, on  instructions, stated that the matter is pending in the office of the Comptroller  and Auditor General.  

       Having regard to the facts and circumstances of this case, we are of  the opinion, that it is a fit case where we should exercise our jurisdiction  under Article 142 of the Constitution of India.  It is now well settled that the  court in appropriate cases may decline to exercise its jurisdiction although it  would be lawful to do so. {See A. Umarani v. Registrar, Cooperative  Societies & Ors. [(2004) 7 SCC 112] and Des Raj (Deceased) Through  LRS. & Ors. v. Union of India & Anr. [(2004) 7 SCC 753].}

       Keeping in view the principles laid down in the aforementioned  decisions, we are of the opinion that the interest of justice, having regard to  the peculiar facts and circumstances of this case, shall be sub-served if  instead of directing reinstatement of the Appellant in service, the following  directions are issued :

(i)     The Appellant shall be paid all his pensionary benefits with interest  at the rate of 9% per annum with effect from 1st August, 1997.

(ii)    The Appellant shall be paid his salary for the period 1st August,  1997 to 8th September, 1997.

(iii)   The Second Respondent shall pay and bear the costs of the  Appellant, which is quantified at Rs.50,000/-.          The Appeal is allowed to the aforementioned extent and on the  aforementioned terms.