DIVAKAR MISHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has sought quashing of the two Office Memorandums dated 4.2.1994 (Annexure P17) and 7.2.1994 (Annexure P18) and further to declare that he stood retired on 27.8.1993, after expiry of 90 days' notice period w.e.f. 27.5.1993 with further directions to release his retirement benefits with interest thereupon. The petition was instituted on 5.9.1994.

(2.) It is alleged that the petitioner joined Indian Military Academy for training on 20.1.1996 and was commissioned in Indian Army as Emergency Commissioned Officer on 2.8.1964, from where he was relieved on 30.6.1970. On 24.8.1970, the petitioner was selected through Selection Board in Central Reserve Police Force and was posted as Deputy Superintendent of Police with 31st Battalion at Kohima. He was promoted as Commandant (Selection Grade) w.e.f. 17.10.1991 and remained posted in various stations mostly in the North East region of the country. The petitioner states that he remained posted in North East region for almost 12 years, whereafter he was posted in Srinagar and Anantnag (J&K). On request, he was posted as Commandant (Staff) in the Office of Deputy Inspector General of Police, Rapid Action Force, R.K.Puram, New Delhi on 10.6.1991, but within a period of eight months, he was arbitrarily transferred to which he lodged a protest stating that it would adversely effect education of his children and also pointed out that within a span of 14 months, it was his third shifting of residence. After his representation dated 20.1.1993 was rejected, again through representation dated 13.2.1993, he requested for deferment of his transfer for 3 to 4 months. The petitioner states that he was on leave from 15.1.1993 to 22.5.1993.

(3.) Due to serious ailment, he had to be hospitalised in Mool Chand Khairati Lal Hospital, New Delhi. Instead of showing any sympathy towards the petitioner for serious illness and rendering any help, his request for cancellation/deferment of his transfer was rejected and the payment of salary was stopped since March, 1993. As the request of petitioner for staying his transfer and deferment of his posting was not considered favourably, in response to the petitioner's representation, respondent No.2 on 27.5.1993 suggested the petitioner that in case he would apply for voluntary retirement, his application will be considered sympathetically. Accordingly, the petitioner on 27.5.1993 through letter (Annexure P11) applied unconditionally for voluntary retirement and also asked for condonation of 3 months' period within which according to the petitioner, the competent authority was required to communicate its approval or refusal as per rules. The petitioner's case is that no communication was received by him on his request for voluntary retirement. As such, on 29.7.1993, he again requested for condonation of the notice period of 3 months and to issue further notification relieving him from service and also prayed for release of his service benefits. Decision regarding acceptance/rejection of petitioner's request was not conveyed despite lapse of 5 months. It is alleged by the petitioner that in terms of statutory Rule 56-K of Fundamental Rules as well as Rule 48-A of the CCS (Pension) Rules, in the absence of any communication regarding rejection of petitioner's request, the petitioner automatically and impliedly stood retired from service on 27.8.1993.