MOTI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Petitioner Motilal has filed the present writ petition with the prayer that the order dated 2nd Aug., 1979 terminating the services of the petitioner be declared illegal and quashed along with the other order dated 4th July, 1991. The petitioner has submitted in the petition that in the year 1979 he was suffering from very severe skin disease and was also affected by Leprosy, and therefore, he had submitted the application dated 31st May, 1979 (Annex. 1) stating therein that he be allowed voluntary retirement from service. He had stated in the application that because of the reason that he had got skin disease and was not in a position to serve the State, and, therefore, by giving him the benefit of 5 years' increments/Grade, he be granted pension. The District Collector, Udaipur had accepted the application vide his order dated 2nd Aug., 1979 by treating the said application as a request for voluntary retirement and he had recommended that his pension papers be prepared. The petitioner further alleges that as per the direction, he had prepared his pension papers and submitted to the Department. But, vide order dated 14th July, 1980 communicated to the petitioner he was informed that because of the reason that he has not completed 20 years of service, therefore, he is not entitled to any pension. He has filed the representation against the order dated 14th Aug., 1980 and had stated that he had never submitted his resignation; rather, he had made prayer for voluntary retirement, and in case his request for voluntary retirement was not acceptable, he be taken back in service. The petitioner was informed vide Annexure 4 dated 20th Aug., 1980 by the Collector (Land Records), Udaipur that his case for reinstatement can be considered provided he submits his Fitness Certificate. In response to Annexure 4, the petitioner had submitted his Fitness Certificate Annexure 5. The petitioner was informed vide Annex. 6 that his resignation had been accepted, and therefore, he cannot be taken back in service for the reason that his services were discontinued under sub-rule (1) of Rule 244 of the Rajasthan Service Rules, 1951. The said Rule relates to the submission of the resignation. He was informed by the Board of Revenue vide communication dated 29th July, 1983 and 5th Sept., 1987 that there is no provision for taking back the petitioner in service. The petitioner also approached the Rajasthan Civil Service Appellate Tribunal, but was not granted any relief. The petitioner has been running from one place to another for the relief, but ultimately the Collector (Land Records), Udaipur vide order dated 18th May, 1989 and 31st Aug., 1989 allowed the petitioner invalidated pension w.e.f. 4th Aug., 1987. The period from 31st Aug., 79 to 3rd Dec., 87 was treated as extraordinary leave. Vide order dated 18th May, 89 (Annex. 8) the petitioner was informed that under Rule 228 of the Rajasthan Service Rules the petitioner has been sanctioned the invalidated pension from 4.12.87. The Collector vide Annexure 9 had written a letter to the Pension Department to release the pension of the petitioner, who was in financial distress. Instead of releasing the pension vide Annex. 10, the Govt. of Rajasthan vide letter dated 4th July, 1991 expressed its regrets in sanctioning the pension, and consequently, an order was passed vide Annex. 11 dated 5th Aug., 1991 to stop the invalidated pension granted earlier. The orders Annexures 10 and 11 are being challenged in the present writ petition with the prayer that even the earlier order passed in 1979, whereby so-called resignation was accepted be set aside on the ground that he had never resigned from the post he was holding.

(2.) The facts as stated above in the writ petition are not disputed in the written statement filed by the respondent by way of affidavit of Officer Incharge. It has been admitted that the petitioner had sought the voluntary retirement after serving the State of Rajasthan for about 14 years. It is submitted that there is no difference whatsoever between the voluntary retirement or resignation from service and both are to be treated alike and therefore, the letter of the petitioner seeking voluntary retirement with a prayer to grant him 5 years' grade increments so as to enable him to get the pension as if he had completed 20 years of service was rightly treated by the respondents as a resignation. It is submitted that the petitioner was granted the invalidated pension on humanitarian grounds. However, the action of the Collector i.e. Annexures 7 and 8 were not approved by the Government and the petitioner had been rightly deprived of the pension already granted to him. It is submitted that the petitioner could only get the voluntary pension after completing of 20 years of service and that too after completing of 45 years of age, and in the circumstances mentioned above, the State Government was right to deny the petitioner invalidated pension. Reliance is placed on Rule 244(1) of the Rajasthan Service Rules in regard to voluntary retirement which reads that a Government servant may, after giving at least 3 months' previous notice in writing to the Appointing Authority, retire from service on the date on which he completed 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice, and as such the counsel for the State justifies the action of the respondents in declining the pension to the petitioner.

(3.) The question to be determined in the present writ petition is whether the petitioner had ever resigned from service or he had sought the voluntary retirement. It is very clear from the application Annex. 1 submitted by the petitioner which inter alia mentions that he was seeking the voluntary retirement on the condition that if he is given 5 years' service benefit to enable him towards pension, meaning thereby, the petitioner had put a condition in the application that until and unless, he is not granted the 5 years benefit of service by giving him 5 increments towards service, so that the petitioner's services be deemed to be a qualifying service of 20 years, only then his application for voluntary retirement be considered. Without going into the contents of the application (Annex. 1) the respondents of their own and without referring the matter back to the petitioner, considered the application (Annex. 1) as if a resignation from the post. Apparently, Annex. 1 was not at all the resignation, thus, the competent authority had acted illegally in treating the application for voluntary retirement with condition, to be an application for resignation. In the circumstances and in the fitness of the case that the respondents ought to have informed the petitioner that it was not possible for the respondent-State to grant any benefit of 5 years of service to him for the purpose of earning pension and if this step would have been taken by the State, it was up to the petitioner to press for his request in the application or not, or to submit a resignation without any condition. Having that not being so, the action of the respondents to treat the application as a resignation was void ab initio . Later on, the respondents itself realise the mistake and on the persistency of the petitioner to the effect that he had never resigned and that he is entitled to pension, may be invalidated pension, an order was passed treating the period to be on duty with extraordinary leave, and he was granted invalidated pension vide Annexures 7 and 8. The money had also started flowing to him, but for Annexs. 10 and 11 it had stopped. The contention of the petitioner has merits. His application could not be treated as a resignation. The application with condition, either could be accepted or the petitioner could have been told that his application cannot be accepted. There was no justification or jurisdiction with the respondents to accept the application of voluntary retirement with condition, as an application amounting to resignation. The respondents had also realised the mistake and had granted the pension as well. After grant of the pension, stopping of the same without any notice to the petitioner was otherwise unfair and violating the principles of natural justice. The orders Annex. 10 and 11 cannot be sustained. The order of acceptance of resignation also cannot be sustained for the reason that the petitioner had never resigned from the post. Ultimately, result would in such circumstances be that the petitioner continues to be in service, but the petitioner had himself asked for the invalidated pension, which has been granted to him from 1987, it shall be appropriate in the present case that instead of passing an order to reinstate the petitioner in service right from 1979, when his so-called resignation was accepted and to pay him arrears till his retirement and to pay arrears of salary, it shall be just and fair that the orders passed by the Collector Annexs. 7 and 8 are maintained and the orders Annexs. 10 and 11 be quashed.