SUMANGALA, K Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) The issue whether the Petitioner had locus penetentiae to withdraw the notice of voluntary retirement from service and certain allied questions arise for consideration in this case. The facts, in succint sufficient to decide the said issue, are as follows:

(2.) The Petitioner while working as High School Assistant (Hindi), under the General Education Department, was sent on deputation as per Ext. P-1 dated 17-7-2004, to the Sarva Shiksha Abhiyan Project (for short the 'SSA Project'). It is a project under the Central Government. Later, the Petitioner had submitted Ext. P-2 application dated 8-2-2008 to the Deputy Director of Education, Alappuzha to permit her to retire voluntarily with effect from 31-3-2008. According to the Petitioner, there was no response at all to Ext. P-2 application and she continued in the SSA Project till 31-3-2010. The Petitioner was also given salary and other allowances up to 31-1-2010. However, payment of salary was discontinued from 31-1-2010 onwards. It was so intimated to the Petitioner as per Ext. P-l 5. Subsequently, Ext.P-16 order dated 25-3-2010 was issued by the District Project Officer (SSA), Alappuzha repatriating the Petitioner to the parent department with instruction to report before the third Respondent forthwith. Ext. P-17 dated 31-3-2010 is the relieving order. On being relieved off the duties of the SSA Project, the Petitioner reported to the third Respondent as per Ext. P-18. However, the third Respondent did not permit the Petitioner to rejoin duty citing the reason that her request for voluntary retirement with effect from 31-3-2008 was already accepted by the Department. The said fact is evident from Ext. P-19. It is in the aforesaid circumstances that this Writ Petition has been filed for a declaration that the Petitioner's continuance in service is lawful and proper and that Ext. P-2 has become infructuous. The further prayer in the Writ Petition is for the issuance of a writ of mandamus commanding the Respondents to close the file in respect of voluntary retirement made out by the Petitioner vide Ext. P-3, as infructuous.

(3.) A counter-affidavit has been filed in this Writ Petition by the third Respondent. The main thrust of the contentions therein is that by virtue of application of proviso to Rule 56(4) Part III of Kerala Service Rules, the Petitioner should be deemed to have been retired from service with effect from the intended date of retirement specified in Ext. P-2 viz., 31-3-2008. Therefore, according to the Respondents, the continuance of the Petitioner beyond 31-3-2008 is illegal. The Respondents are entitled to recover the salary and other allowances received by the Petitioner after 31-3-2008. Earlier, Ext. P-7 notice was issued to the Petitioner as also to the Headmistress of Government High School, Paravoor wherein the Petitioner was working when she was deputed to the SSA Project. It is stated in the counter-affidavit that the Petitioner had specifically shown 31-3-2008 as the intended date of voluntary retirement and, on or before that date, the authority competent to make appointment to the post did not issue any order refusing to grant the permission for granting voluntary retirement. Therefore, it became effective with effect from 31-3-2008 itself.