Holding

Under the amended Rule 16(2A) an offer of voluntary retirement by a member of the All India Services must be accepted by the Central Government; the Governor’s acceptance was void, but the officer is entitled to terminal benefits.

Summary

Ashok Kumar Sahu, an IPS officer on suspension after completing 20 years of service, applied for voluntary retirement under Rule 16(2A) of the All India Services (Death‑cum‑Retirement Benefits) Rules, 1958. The Central Government referred the matter to the Joint Cadre Authority, which approved the retirement, and a notification from the Governor of Assam was issued stating acceptance. The officer challenged the validity of the Governor's acceptance, arguing that the amended Rule 16(2A) required acceptance by the Central Government, not the State Government, and that the acceptance was not communicated to him. The Supreme Court held that the offer indeed had to be accepted by the Central Government and that the Governor's acceptance was legally ineffective, but exercised its jurisdiction under Article 142 to order payment of the officer’s terminal benefits with interest, rather than reinstatement. The appeal was allowed, directing payment of pensionary benefits, salary for a brief period, and costs.

Issues considered

The offer of voluntary retirement by an IPS officer under suspension, governed by Rule 16(2A), must be accepted by which authority – the Central Government or the State Government?
Was the Governor’s notification accepting the officer’s retirement valid under the amended Rules?
Did the Central Government fulfill the procedural requirement of communicating acceptance of the retirement offer?
Is the officer entitled to terminal benefits despite the procedural irregularities?

Legislation cited

Subjects

Voluntary retirementAll India ServicesRule 16(2A)SuspensionCentral Government acceptanceJurisdictionTerminal benefitsArticle 142

Judgment

A ASHOK KUMAR SAHU
v.
UNION OF INDIA AND ORS.

AUGUST 8, 2006

B [S.B. SINHA AND DALVEER BHANDARI, JJ.]

Service law:

All India Services (Death-cum-Retirement Benefits) Rules, 1958:
c
Rule J6(2A) proviso (as amended)-Voluntary retirement--JPS officer
under suspension. on completion of 20 years of service, expressed his desire
to retire from the service from a certain date in terms of Rule 16(2A)-The
Central Government referred the matter to the Joint Cadre Authority, which
D agreed to accept the request of the officer to go on voluntary retirement
without prejudice to the existing disciplinary procPedings against him-By a
notification the officer wa:; communicated that the Governor vf the State had
accepted his voluntary retirement- -The writ petition filed by the officer against
the said commur.ication was dismissed~orrectness of-Held: In terms of the
amended sub-rule (2A), an offer of retirement made by a member of the
E Indian Police Service requires acceptance by the Central Government and not
by the State Government-When terms and conditions of service of an officer
are governed by the All India Services Rules, the State Government exercises
delegated power-The action, in terms of the Rules, can be taken by the
prescribed authority alone and not by any other authority-An. order passed
F by an authority without jurisdiction would be non-est in the eyes of law-It
is coram non judice-However, on facts, officer not reinstated in service but
directions to relpase his terminal benefits issued-All India Services Act, 1951.

Words & Phrases:

"Approve", "approval", "acceptance''. "ratify", and "ratijication"--
G Meaning of-Explained

The appellant was a member of the Indian Police Service. On or
about 4.6.1997, the appellant was placed under suspension. Disciplinary
-
proceedings were also initiated against the appellant. On his completion

H 394
ASHOK KUMAR SAHU v. U.0.1. 395
of 20 years of service, the appellant expressed his desire to retire from A
the service with effect from 1.8.1997 in terms of Rule 16(2A) of the All
India Services (Death-cum-Retirement Benefits) Rules, 1958. 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 the B
appellant. By a notification dated 8.9.1997, the appellant was
communicated that the Governor of the State had accepted his voluntary
retirement. The writ petition filed by the appellant against the said
communication was dismissed by the High Court. Hence the appeal.

Allowing the appeal, the Court c
HELD: 1.1. In law, offer of volunt.ary retirement can be made and
accepted in terms of the All India Services (Death-cum-Retirement
Benefits) Rules, 1958, inter a/ia, in three different situations:-

(a) On completion of 20 ye>1rs of service; D
(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. 1402-A-Bl

1.2. Whereas in the first situation acceptance of the proposal is not E
required, in the second and third, acceptance of the offer by the competent
authority would be required. [402-CI

2.1. An offer of retirement made by a member of the Indian Police
Service requires acceptance by the Central Government and not by the F
State Government. 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 G
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 to the
State Government. 1403-C-Fl
H
A

396 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 2.2. It is not denied or disputed that the 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. 1403-FJ

3. When terms and conditions of service of an officer are governed
B by the All India Services Rules, the State Government exercises delegated
power. Prioi: 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
C 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.
1403-F-H; 404-AJ
D
State (Anti-Corruption Branch) Govt. of NCT of Delhi v. Dr. R.C. Anand,
(20041 4 sec 615, referred to.

Jaswant Singh v. State of Punjab, AIR (1958) SC 124 and State of Bihar
v. P.P. Sharma, (1992) Supp. I SCC 222, cited.

E 4. 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.
F Approval of an order is required as directed by the statute. It can be given
a retrospective effect. Even a 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. (404-D-FJ

G State of Punjab v. Amar Singh Harika, AIR (1966) SC 1313, relied on.

5. However, under certain circumstances, the expression "approval"
would mean to accept as good or sufficient for the purpose of intent.
Ratification means the act of ratifying, confirmation and sanction. The
expression "ratify" means to approve and accept formally. It means to
H conform, by expressing consent, approval or formal sanction. "Approve"
ASHOK KUMAR SAHU v. U.0.1. 397
means to have or express a favourable opinion of to accept as satisfactory. A
In the instant case, there was no question of any ratification involved as
wrongly assumed by the High Court. (404-F-GI

Maharashtra State Mining Corpn. v. Sunil, slo Pundikarao Pathak,
(20061 5 sec 96, relied on.
B
6.1. lfthe 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 Government to issue order/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 C
1.8.1997 by the Governor of the State accepting the said offer is bad in
law. (405-A-BI

6.2. The proviso appended to Rule 16(2A) mandates acceptance by
the Central Government. It although does not specify a date for D
communicating such acceptance·but ordinarily such acceptance should be
within the period of notice so as to make cessation of employment
complete. (407-F(

Bairam Gupta v. Union of India, (1987( Supp. SCC 228, Himachal
Pradesh Horticultural Produce Marketing & Processing Corporation Ltd v. E
Suman Behari Sharma, (1996) 4 SCC 584, State of Haryana v. S.K. Singhal,
(199914 SCC 293, Dinesh Chandra Sangma v. State ofAssam, (1977( 4 SCC
441 and B.J She/at v. State of Gujarat, (1978) 2 SCC 202, held inapplicable.

7. An appropriate order should be passed within a reasonable period.
Normally, three months notice is required to be given as the said period F
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. (407-GI

8. The appellant did not assign any specific reason as to why he
intended to retire. Admittedly, a disciplinary proceeding was initiated a·
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, H
398 SUPREME COURT REPORTS (2006) SUPP. 4 S.C.R.

A 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 volunt11ry
retirement. Acceptance of the offer of the appellant for voluntary
retirement by the Authority must be judged only on that premise.
(408-B-DI
B
9. 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, the Central Government proceeded on a wrong
premise by approving the proposal and not accepting the offer. A wrong
C 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. (408-D-El

IO. This is a fit case where this Court should exercise its jurisdiction
under Article 142 of the Constitution of India. It is now well-settled that
D the court in appropriate cases may decline to exercise its jurisdiction
although it would be lawful to do so. (409-D-E(

A. Umarani v. Registrar, Cooperative Societies, (2004( 7 SCC 112 and
Des Raj v. Union of India, (2004l 7 SCC 753, relied on.

1 I. The interest of justice, having regard to the peculiar facts and
E circumstances of this case, shall be sub-served if instead of directing
rtinstatement of the appellant in service, the directions to release his
terminal benefits are issued. (409-F-H; 410-AI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of_2004.

F From the Judgment and Order dated 4.10.200 I of the High Court of
Gauhati at Gauhati in Writ Petition (c) No. 3970/2001.

Ashok Kumar Sahu, Appellant-In-Person.

Vikas Singh, A.S.G., Rekha Pandey, Sushma Suri, J.R. Luwang, Ponum
G Arora for (Corporate Law Group) and Ranjan Mukherjee for the Respondents.
The Judgment of the Court was delivered by

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
H
ASHOK KUMAR SAHU v. U.0.1. [SINHA, J.] 399
were also initiated against him. Statement of imputation of misconduct was A
-.I
I
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 B
reads as under :

"To

The Chief Secretary to the Govt. of Assam, Dispur,
Guwahati-6
c
Sub: VOLUNTARY RETIREMEiH FROM ALL INDIA
SERVICES.

Ref: Under Sub-Rule (2A) of Rule 16 of the All India Services
(Death-cum-Retirement Benefits) Rules 1958.
D
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 E
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 effl!ct from
the I st August, 1997 afternoon.
F
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,
Sd/-
(A.K. Sahu)" G
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
H
400 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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 :

B "After perusal of the representation ofShri A.K. Sahu, IPS praying
for voluntary retirement with effect from 1.8.1997 under rule I6(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
C proceedings against him."

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

"NO. HMA (JPS) 58/Pt.V/36 DATED 1.8.97 (.) KINDLY REF.
MINISTRY'S LETTER NO. 31012/4/97-11 DATED 27.5.97
D REGARDING VOLUNTARY RETIREMENT OF SHRl A.K. SAHU,
JPS (UIS)(.) 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 {.)"
E
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 :

p "APPROVAL OF THE GOVT. OF INDIA IS HEREBY CONVEYED
TO THE ACCEPTANCE OF THE REQUEST OF SHRI A.K. SAHU,
JPS (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
G (.)"
By reaso:i 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 :

H "The Governor of Assam is pleased to accept the prayer for
ASHOK KUMAR SAHU v. U.0.1. [SINHA, J.) 401
voluntary retirement tendered by Shri A.K. Sahu, JPS (U/S) and to A
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 was
filed by the appellant before the Gauhati High Court. A Division Bench of B
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. C
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;
D
(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 Sti1te Government;
E
(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 counse 1 appearing on behalf of the respondents, on the
other hand, submitted that F
(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 G
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 H
402 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A 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 :

B (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.

C 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
Ali India Services Act, 1951 and the Rules and Regulations framed thereunder.
D 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
E 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.
F
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
G 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 datP. of
retirement on the expi1 y of the period of notice would be earlier than
H the date on which the member of the service could have retired from
ASHOK KUMAR SAHU v. U.0.1. [SINHA, J.] 403
service under sub-rule (2)" A
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 - B
(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 C
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 D
to amendment. In tenns 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 E
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 : (I) The F
appellant was under suspension; and (2) it was imperative in terms of the
proviso appended to Sub-rule (2A) of Rule 16.

When tenns and conditions of service of an officer are governed by the
All India Services Rules, the State Government exercises delegated power. G
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 H
404 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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. v. Dr.
R.C. Anand & Anr., (2004] 4 SCC 615, it was held :
B
'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 including the transcript of
the tape record have been considered by the sanctioning authority.
Consideration implies application of mind. The order of sanction must
c 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
D (1958) SC 124 and State of Bihar v. P.P. Sharma, (1992] Supp I
sec 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
E 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 vahd
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
F the order. {See State of Punjab v. Amar Singh Harika, AIR (I 966) 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".
G 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. v. Sunil, s/o
H Pundikarao Pathak, (2006] 5 sec 96].}
ASHOK KUMAR SAHU v. U.0.1. [SINHA, J.) 405
We are, not concerned with such a case herein. A
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 B
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 C
communicated before 1.8.1997. When an employee offers to retire from
service, his offer cannot be said to have a':cepted automatically unless the
rule provides therefor.

We may, however, notice some of the decisions cited at the bar. D
In Bairam Gupta v. 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 E
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:- F
(I) At any time after a 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 (I) shall G
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." H
406 SUPREME COURT REPORTS (20061 SIJPP. 4 SCR.

A 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, 198 I with effect
B from 31st March, I981. 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
c 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
D 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
E 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."
F
We are not concerned with such a situation in this case.

In Himachal Pradesh Horticultural Produce Marketing & Processing
Corporation ltd. v. Suman Behari Sharma, (I 996] 4 SCC 584, this Court
was concerned with a rule in terms whereof the request of the employee to
G retire from service would become effective only if he is permitted to retire.
In State of Haryana and Ors. v. S.K. Singhal. [ 1999] 4 SCC 293, this
Court again was dealing with a matter where an automatic retirement was
claimed.

H Cases of voluntary retirement can broadly be divided into the following
ASHOK KUMAR SAHU v. U.0.l. [SINHA. J.) 407

three categories: A
(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
B
(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. v. S.K. Singhal, [1999)
4 SCC 293, interpreting sub-rule (I) of Rule 5.32(8) of the Punjab Civil C
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(8) 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 (I), the retirement shall D
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. She/at v. State of
Gujarat, [ 1978] 2 sec 202 wherein it was held that if no order of refusal has E
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. Jn fact it is a reverse situation. The proviso appended to Sub-rule
(2A) of Rule 16 mandates acceptance by the Central Government. It although F
does not specify a <late for communicating such acceptanc.: 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 G
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 H
408 SUPREML COURT REPORTS [2006] SUPP. 4 S.C.R.

A 1999 by a letter dated 10.8.1999 which was impennissible 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
B 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
C 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.
D
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 thr
E 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.
F 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. 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
G 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 :

H "Learned counsel for the petitioner states that pension papers would
ASHOK KUMAR SAHU v. U.O.l. [SINHA, J.] 409
be submitted within 15 days. Learned counsel for the respondents A
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 B
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 C
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 D
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 E
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].}
F
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 : .
G
(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 I st August,
1997 to 8th September, 1997. H
410 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A (iii) The Second Respondent ~hall 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.

B V.S.S. Appeal allowed.