P VIJAYAN Vs. ACCOUNTANT GENERAL

JUDGEMENT

(1.) This Writ Petition is instituted by a teacher of M.M. High School, New Mahe, Thalassery who contends that the offer submitted by him, under Rule 56(iv) of Part III of Kerala Service Rules for voluntary retirement has not become effective and that he has withdrawn from such offer before the same became effective, seeking inter alia the following reliefs:-

(2.) According to the petitioner, his wife is a teacher in Cheruvancherry U.P. School, Kuthuparamba; his eldest daughter is studying in Engineering College, Moothakunnam with two more years for completing the course; and his younger son is a mentally retarded boy who needs special care and attention. The petitioner was medically advised by Ayurvedic physicians that his son needs prolonged medical treatment and constant care and supportive attention of the parents, particularly the father. Due to the said extenuating reason and to impart treatment to his only son, the petitioner applied on 15.12.2004 to voluntarily retire from service with effect from 1.4.2005 as per Rule 56, Part III, K.S.R., he having put in 21 years, one month and one day of service. Ext.P1 produced along with the Writ Petition is a true copy of the letter addressed by the petitioner to the Deputy Director of Education through the Manager. Ext.P1, according to the petitioner, was submitted by him in the melancholic mood of the family which was turning all stones to find out a way for relief to the only son. Petitioner states that later he received further medical advice that the treatment suggested by Ayurvedic physicians will only add on to the misery of the child by inflicting physical and mental torture on him and accordingly it was decided not to go for Ayurveda treatment for the son. Consequently the necessity to opt for voluntary retirement also ceased. Thereafter, the petitioner approached the Manager-4th respondent and explained about his intention to withdraw from the application, for voluntary retirement which, according to the petitioner, had not been thitherto decided by the concerned officials. According to the petitioner, the Headmaster assigned him invigilator's duty for Second Year B.A. and B.Com. examinations held at M.M. High School, Mahe in the first and second week of May, 2005 which, according to him, indicates that even after 1.4.2005, the date in which he opted to retire voluntarily as per Ext.P1, he continued in service. Petitioner sent Ext.P2 letter dated 3.5.2005 to the 3rd respondent-D.E.O. under copies to the 2nd respondent and the 4th respondent informing them of his withdrawal of what he describes as "offer for voluntary retirement". He also sent a letter to the Accountant General, the 1st respondent requesting him to cancel his application for voluntary retirement and Ext.P3 is the true copy of the said letter. According to the petitioner, he has not so far received any information or reply to the letters he sent to the Departmental officers or the Accountant General. He states that the Department has not so far accorded sanction for voluntary retirement. Therefore, he is entitled to withdraw the offer. Petitioner states that after receiving copy of Ext.P3 letter, the 4th respondent-Manager has issued a letter dated 16.5.05 which is produced as Ext.P4. Under Ext.P4 he is informed that the retirement has already become effective from 31.3.2005 and therefore withdrawal is not possible. Producing Ext.P5 issued by the Government physician attached to the Primary Health Centre, Pattiam to show the condition of his son, he states that he wishes to continue in service but apprehends that the 4th respondent will not permit him to pursue his job. On the above facts and on Grounds A to F raised in the Memorandumm, the Writ Petition is filed seeking the reliefs already mentioned.

(3.) The 4th respondent-Manager has filed a detailed counter-affidavit. It is contended therein that the petitioner who has been working in the school from 8.12.1982 as H.S.A. (Malayalam) committed serious irregularities by unauthorised absence and dereliction of duty and had to be given a penalty of withholding of one annual increment without cumulative effect. Ext.R4(a) is produced along with the counter to prove this aspect. The petitioner submitted a request for voluntary retirement on 15.12.2004. The same was submitted to the 2nd respondent-D.D.E.through the 3rd respondent-D.E.O. for necessary action. Ext.R4(b) produced along with the counter-affidavit is the forwarding letter of the Manager. Even after submitting Ext.R4(b), the attitude of the petitioner towards his duties did not change and he continued to commit serious irregularities. This necessitated the issuance of a memo of charges together with statement of allegations to the petitioner. He submitted a statement and requested to drop further proceedings on the ground that he has already submitted a request for voluntary retirement with effect from 31.3.2005. Therefore, a lenient view was taken and accepting the explanation offered by the petitioner the proceedings proposed against him were dropped under Ext.R4(c) order. According to the counter-affidavit, the petitioner has retired from service on 31.3.2005. He has not attended the school since 31.3.2005 and vacation salary was not paid to him. His request for withdrawal from the request for voluntary retirement was submitted only on 3.5.2005 and he was given a reply to the effect that the voluntary retirement has already taken effect and Ext.R4(d) is the true copy of the above letter dated 16.5.2005. The counter-affidavit further states that the petitioner has ceased to be in service with effect from 31.3.05 and in view of Rule 56(iv) of Part III, K.S.R., he is not entitled to continue since his voluntary retirement became effective on the grant of permission to retire by the authority competent to make appointment to the post. Referring to the proviso to Rule 56(iv) it is contended that if permission to retire has not been refused before the date on which the employee wishes to retire, then the retirement will become effective from the date specified in the notice of retirement. Withdrawal on 3.5.2005 after the retirement became effective is not legally possible. The contention of the petitioner that he has continued in service and that he has worked in the school even after 31.3.2005 are all stoutly denied.