STATE OF U.P. & ORSversusLUXMI KANT SHUKLA

                    (2011] 10 S.C.R. 531

                 . STATE OF U.P. & ORS.                           A
                              v.
                  · LUXMI KANT SHUKLA
              (Civil Appeal No. 7105 of 2011)
                     AUGUST 19, 2011.
                                                                  B
     [R. V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

     U. P. FUNDAMENTAL RULES, 1942:

     F. R. 56 (c) and (d), proviso (i)(ii) proviso - Effect of    c
notice for voluntary retirement given by employee to
employer pending disciplinary proceedings - Held: Such
notice would be effective only if it is accepted by the
appointing authority - In the instant case, the officer gave
notice for voluntary retirement during pendency of disciplinary   0
proceedings against him ~ Since no order of acceptance was
passed by the appointing authority, the officer continued in
service even after the period of notice of three months expired
in August 2009 and his,services were terminated only with the
order of dismissal passed on 07.09.2009 - Service Law.
                                                                  E
     The respondent, a member of .the Provincial Civil
 Services of the State of U.P., wa!> placed under
suspension on 12.2.2008. On 19.2.2008, a, c~arge-sheet
containing 16 charges was served on him and~ Inquiry
Officer was appointed. On 28.5.2009, the resportd~nt filed        F
 his reply to the charge-sheet to the Inquiry Officer and
endorsed a copy thereof to the Principal Secretary
(Appointment Section - II), Government of U.P.
requesting him to exonerate him from the charges and
instead grant him voluntary retirement from service under         G
FR 56 of the U.P. Fundamental Rules, 1942. On
30.11.2009, the Inquiry Officer submitted his inquiry report
to the State Government holding that the charges against
the respondent were proved. By order dated 16.12.2009,
                             531                                  H
   532     SUPREME COURT REPORTS              [2011) 10 S.C.R.


A the respondent was intimated that his representation
  dated 5.10.2009 for voluntary retirement was not accepted
  by the Government. The respondent filed Civil Misc. W.P.
  No. 5 (SB) before the High Court for quashing the order
  dated 16.12.2009 and for directing the State Government
B to pay all his retirement benefits admissible under FR 56.
  By order dated 7.9.2010 the respondent was dismissed
  from service. The respondent challenged the said order
  in another CMWP No. 1386 (SB) of 2010. On 16.9.2010
  the Division Bench of the High Court quashed the order
c dated 16.12.2009 by which the State Government had
  rejected the request of the .respondent to accept his
  voluntary retirement and directed the Government to
  consider the respondent's request afresh. (The High
  Court did not interfere with the subsequent dismissal
  order dated 7.9.2010 pending consideration in CMWP No.
0
  1386 (SB) of 2010.) Aggrieved, the State Government filed
  the appeal.

      The question for consideration before the Court
  was: Whether the respondent.stood voluntarily retired
E from service before the order of dismissal was passed by
  the State Government.

         Allowing the appeal, the Court

       HELD: 1.1 A reading of clause (c) of FR 56 would
F show that a government servant on attaining the age of
  45 years, may by notice to the appointing authority,
  choose to voluntarily retire from service. Clause (d) of
  FR 56 further provides that the period of such notice shall
  be three months. However, the proviso after proviso (i)
G and (ii) to Clause (d), states that the notice given by the
  government servant against whom a disciplinary
  proceeding is pending or contemplated, shall be
  "effective only if it is accepted by the appointing
  authority." In this proviso, however, it is clarified that in
H the case of a "contemplated disciplinary proceeding" the
  STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA          533


government servant shall be informed before the expiry      A
of his notice period that it has not been accepted. [para
13] [542-E-H; 543-A]

     1.2 In the instant case, the disciplinary proceeding
was initiated against the respondent on 19.02.2008, when 8
the charge sheet containing 16 charges was issued
against him and the Enquiry Officer was appointed to
enquire into the charges. It is only after the initiation of
the disciplinary proceeding that the respondent made a
request in the copy of his reply dated 28.05.2009 to the C
appointing authority to accept his retirement under
Clause (c) of FR 56. Thus, even if the request of the
respondent made on 28.05.2009 is treated as the notice
of voluntary retirement, on 28.05.2009 a disciplinary.
proceeding was pending against him and as per the
language of the proviso, such notice of voluntary · D
retirement would be "effective only if it is accepted by the
appointing authority". Therefore, until the appointing
authority accepted the request of the respondent for
voluntary retirement, the very notice dated 28.05.2009 for
voluntary retirement would not be effective. Since, no E
such order of acceptance was passed by the appointing
authority, the respondent continued in service even after
the period of notice of three months expired in August
2009; and his services were terminated only with the
order of dismissal passed on 07.09.2009. This is not a F
case of "a contemplated disciplinary proceeding", but a
case of disciplinary proceeding which was already
pending when the respondent made the request for
voluntary retirement on 28.05.2009 and the finding of the
High Court that the respondent was required to be G
informed before the expiry of his notice of voluntary
retirement that it had not been accepted is erroneous.
[paras 14, 15 and 17] [543-B-E-H; 544-A-B]

                                                            H
    534     SUPREME COURT REPORTS             [2011] 10 S.C.R.

A       State of Haryana v. S.K.Singhal 1999 ( 2 ) SCR 714   =
    (1999) 4 sec 293 - referred to.
       Union of India and Others v. Sayed Muzaffar Mir 1994
                            =
  (3) Suppl. scR 729 1995 Supp (1) sec 76 - held
8 inapplicable.
       1.3 The impugned judgment is set aside and the writ
  petition (C.M.W.P. No.OS (SIB) of 2010) challenging the
  rejection of respondent's request for voluntary retirement
  is dismissed. [para 18] [545-F]
c
        Bishan Lal v. State of Haryana (AIR 1977 P&H 7);
    Samsher Singh v. State of Punjab and Another 1975 (1)
    SCR 814 = (1974) 2 S(;;C 831; Municipal Corporation,
    Ludhiana v. lnderjit Singh and Another 2008 (14) SCR 95  =
0   (2008) 13 sec 506 - Cited.
                         Case Law Reference:
     (AIR 1977 P&H 7)           Cited            para 9
     1994 (3) Suppl. SCR 729 held inapplicable para 10
E
     1975 ( 1 ) SCR 814         Cited            para 11
     2008 (14 ) SCR 95          Cited            para 11
     1999 ( 2) SCR 714          Referred to      para 17
F         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7105 of 2011.
        From the Judgment & Order dated 16.09.2010 of the High
  Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
G Civil Misc. Writ Petition No. 05 (S/B) of 2010.
       P.P. Rao, Shail Kumar Dwivedi, AAG, Devender
    Upadhyaya, Gunnam Venkateswara Rao, Vandana Mishra.
    Manoj Kr. Dwivedi for the Appellants.
          Caveator In Person.
H
   STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                  535


     The Judgment of the Court was delivered by                      A
     A. K. PATNAIK, J. 1. Leave granted.
      2. This is an appeal against the judgment and order dated
 16.09.2010 of the Division Bench of the Allahabad High Court,
 Lucknow Bench, in Civil Miscellaneous Writ Petition No. 05 (S/      B
 B) of 201 O (hereinafter referred to as 'the impugned judgment').
        3. The facts very briefly are that the respondent is a
  member of the Provincial Civil Services of the State of U.P.
  When he was posted as Special Secretary, Samaj Kalyan
  Department, Government of U.P. in 2006, he authored a book         C
  titled 'Jati Raj'. As the book contained some remarks against
  national leaders like late Dr. B.R. Ambedkar, the State
  Government issued a letter dated 11.09.2007 to the respondent
  when he was posted as Special Secretary, Dharmarth Karya
  Department, Government of U.P., requesting him to furnish to       D
1 the Government a copy of the book.     The respondent instead
  of furnishing a copy of the book proceeded on leave and on
  12.02.2008 he was placed under suspension in contemplation
  of the disciplinary proceedings. On 19.02.2008, a charge-sheet
  containing 16 charges was served on him. The charges against·      E
  the respondent were that certain passages in the book 'Jati Raj'
  written by him were defamatory and derogatory to national
  leaders and he had hurt the religious sentiments of the people
  and created hatred amongst various sections of the society. By
  order dated 19.02.2008, the State Government appointed Shri
                                                                     F
  Vijay Shanker Pandey, the Commissioner, Lucknow Division,
  as the Enquiry Officer to enquire into the charges.
      4. Aggrieved, the respondent filed Writ Petition No. 256
 (SB) of 2008 before the Allahabad High Court, Lucknow Bench,
 and by an interim order dated 14.03.2008 the High Court             G
 stayed the operation of the order of suspension as well as the
 order appointing the Enquiry Officer. The State Government
 challenged the order dated 14.03.2008 of the High Court
 before this Court in Special Leave Petition (Civil) No. 12749
 of 2008 and. this Court, while issuing notice in Speciai Leave      H
    536    SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A  Petition, stayed the operation of the order dated 14.03.2008
   passed by the High Court. Thereafter, this Court by order dated
   14.11.2008 disposed of the Special Leave Petition with a
   request to the High Court to dispose of the Writ Petition No.
  256 (S/B) of 2008 expeditiously and with the direction that
s pending such disposal of the writ petition, the State Government
  was not to take any final decision imposing any penalty on the
   respondent. In the meanwhile, as the respondent did not submit
   his reply to the charge-sheet, the Enquiry Officer conducted the
  enquiry ex parte and submitted an enquiry report dated
c 15.07.2008 holding the respondent guilty of the charges. The
  disciplinary authority issued notice dated 05.08.2008 to the
   respondent to show cause why the enquiry report should not
  be accepted. On 01.05.2009, having found that the ex-parte
  enquiry was violative of principles of natural justice, the
  disciplinary authority passed an order directing the Enquiry
0
  Officer, Shri Vijay Shanker Pandey, to hold the enquiry afresh
  after giving sufficient opportunity of hearing to the respondent
  in accordance with the rules. Writ Petition No. 256 (SB) of
  2008 was disposed of by the High Court on 15.05.2009
  directing the Enquiry Officer to commence the proceedings
E afresh from the stage of charge-sheet. The respondent filed a
  Review Petition No. 115 of 2009, but the High Court dismissed
  the Review' Petition on 26.05.2009.
       5. The respondent then filed his reply to the charge-sheet
F on 28.05.2009 to the Enquiry Officer, Shri Vijay Shanker
  Pandey and endorsed a copy of the reply to the Principal
  Secretary (Appointment Section-II), Government of U.P.
  requesting him to exonerate him from the charges against him
  and instead grant voluntary retirement from service under Rule
  56 of the U.P. Fundamental Rules, 1942 (for short 'FR 56'). As
G Shri Vijay Shanker Pandey declined to conduct the enquiry
  afresh, the State Government by its order dated 01.06.2009
  appointed Shri Alok Ranjan, Principal Secretary, Urban
  Development, as the Enquiry Officer to enquire into the charges
  against the respondent. The respondent submitted his reply
H
  STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                 537
                [A.K. PATNAIK, J.]
to the charge sheet to the new Enquiry Officer, Shri Alok Ranjan   A
on 11.06.2009 and after considering the reply of the respondent
and the material available on record, the Enquiry Officer
submitted his enquiry report on 30.11.2009 to the State
Government holding that the charges against the respondent
were proved. While the enquiry report was pending                  B
consideration before the State Government, the State
Government first considered the request of the respondent in
his representation dated 05.10 .2009 for voluntary retirement
and by order dated 16.12.2009 intimated the respondent that
his request for voluntary retirement has not been accepted by      c
the State Government.
     6. Aggrieved, the respondent filed Civil Miscellaneous Writ
Petition No. 5 (SB) of 2010 in the Allahabad High Court,
Lucknow Bench for quashing the order dated 16.12.2009 of the
State Government and for directing the State Government to         D
pay all his retirement benefits admissible under FR 56. During
the pendency of the Civil Miscellaneous Writ Petition No. 5 (SB)
of 2010, the State Government issued a notice dated
05.02.2010 to the respondent to show cause why the enquiry
report dated 30.11.2009 should not be accepted. The                E
respondent submitted his reply dated 02.03.2010 to the show
cause notice and also made a request for being given an
opportunity of personal hearing. Personal hearing was granted
to the respondent on 04.06.2010 and the respondent was
dismissed from service by the disciplinary authority by order      F
dated 07.09.2010. Aggrieved, the respondent filed Civil
Miscellaneous Writ Petition No. 1386 (SB) of 2010 on
14.09.2010 before the Allahabad High Court, Lucknow Bench,
against the order of dismissal and this Writ Petition is pending
consideration before the High Court.
                                                                   G
     7. On 16.09.2010, the Division Bench of the High Court,
by the impugned judgment, quashed the order dated
16.12.2009 of the State Government and rejected his request
to accept voluntary retirement under FR 56 and directed the
State Government to reconsider the respondent's request            H
    538    SUPREME COURT REPORTS                   [2011] 10 S.C.R.


A afresh keeping in view the observations made in the impugned
  judgment. By the impugned judgment, however, the High Court
  did not in any way interfere with the subsequent order dated
  07 .09.2010 of the disciplinary authority dismissing the
  respondent from service as the order of dismissal was subject
B matter of challenge in a separate writ petition, Civil
  Miscellaneous Writ Petition No. 1386 (SB) of 2010, before the
  Allahabad High Court, Lucknow Bench.
          8. Mr. P.P. Rao, learned counsel appearing for the
    appellants, submitted that under Clause (c) of FR 56, a
C   government servant may by notice to the appointing authority
    voluntarily retire at any time after attaining the age of 45 years.
    He submitted that the respondent had not served any such
    notice to the State Government and had only sent to the State
    Government a copy of his reply dated 28.05.2009 to the
D   Enquiry Officer, Shri Vijay Shanker Pandey, and made an
    endorsement at the foot of the nply to the Principal Secretary
    (Appointment Section-II), Government of U.P. that he may be
    retired from service under FR 56 and he may be granted all
    service and consequential benefits. He vehemently submitted
E   that such endorsement on a copy of the reply with a request to
    the appointing authority to grant him voluntary retirement from
    service was not a notice of voluntary retirement in terms of FR
    56. He next submitted that the proviso to Clauses (c) .and (d)
    of FR 56 clearly provides that the notice given by the
F   Government servant against whom a disciplinary proceeding
    is pending shall be effective only if it is accepted by the
    appointing authority and that the proviso does not require that
    where a disciplinary proceeding is pending against a
    Government servant, he should be informed of the decision on
G   his request for voluntary retirement before expiry of the notice
    period. He argued that a close reading of the proviso would
    show that only where a disciplinary proceeding is contemplated
    against a Government servant, the Government servant has to
    be informed before the expiry of the notice period about the
    decision that his request for voluntary retirement has not been
H
   STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                    539
                 [AK. PATNAIK, J.]
accepted. He submitted that the High Court has, on the                  A
contrary, held in the impugned judgment that the respondent
was required to be informed before the expiry of the period of
notice about the decision that his request for voluntary
retirement has not been accepted.
        9. Mr. Rao next submitted that in any case the State            8
  Government as the appointing authority has considered the
  request of the respondent for voluntary retirement and rejected
  the same as would be evident from the relevant file and in
  particular the note dated 26.11.2009 put up by the Under
  Secretary, Appointment Department and dealt with by the               C
  Special Secretary of the Government on 27.11.2009 and by the
  Principal Secretary of the Department and the Chief Secretary,
  Government of U.P., on 02.12.2009 and orally approved by the
  Chief Minister on 08.12.2009 as recorded by the Special
  Secretary on 08.12.2009. He submitted that the High Court             D
  has, however, taken a view in the impugned judgment that as
· the Chief Minister has not put her signature in the order dated
  08.12.2009 rejecting the request of the respondent for voluntary
  retirement, the order was not dully authenticated in terms of the
  Rules of Business. He cited the decision of the Punjab and            E
  Haryana High Court in Bishan Lal v. State of Haryana (AIR
  1977 P&H 7) that an order cannot be called in question merely
  because the Chief Minister has not put his signature on the
  official file. He finally submitted that since the State Government
  has not accepted the request for voluntary retirement made by         F
  the respondent, the respondent continued in service till he was
  dismissed by the order dated 07.09.2010.
     10. The respondent, who appeared in-person, on the other
hand, submitted that in the copy of his reply dated 28.05.2009
to the Enquiry Officer, which was sent to the Principal Secretary,      G
Appointment Section-II, Government of U.P., he had served a
notice to the appointing authority that he may be retired under
Clause (c) of FR 56, and all service and consequential benefits
may be granted to him under Clause (e) of FR 56. He
submitted that this was therefore a notice in terms of Clause           H
    540    SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A (c) of FR 56. He submitted that the High Court has rightly held
  in the impugned judgment that once the State Government as
  the appointing authority took a decision and treated the
  reminder of the respondent as a request for accepting his
  voluntary retirement, the State Government cannot now be
B permitted to take a stand that the request made by the
  respondent in the endorsement dated 28.05.2009 was not a
  notice of voluntary retirement. He further submitted that Clause
  (d) of FR 56 clearly provides that the period of notice would
  be three months. He argued that on the expiry of the three
c months period from 28.05.2009, the respondent stood
  compulsory retired from service. He submitted that the State
  Government should have informed him about its decision not
  to accept his voluntary retirement before the expiry of the period
  of three months notice served by the respondent. But the State
D Government did not communicate the decision to the
  respondent within the notice period of three months and
  therefore the respondent stood compulsory retired from service
  on expiry of the notice period and he was entitled to the pension
  and other retirement benefits in accordance with Clause (e) of
E FR 56. In support of his submissions, he cited the decision of
  this Court in Union of India and Others v. Sayed Muzaffar Mir
  [1995 Supp (1) sec 76].
        11. The respondent next submitted that admittedly the Chief
   Minister has not put her signature on the proposal not to accept
F his notice of voluntary retirement and therefore there is no
   decision of the State Government not to accept his notice of
   voluntary retirement. He vehemently argued that Article 166(3)
   of the Constitution of India provides that the .Governor shall
   make rules for the more convenient transaction of the business
G of the Government of the State and for the allocation among
   Ministers of such business, and it does not contemplate
   delegation of the powers of the Ministers in favour of any officer
   of the State. He cited the decision of this Court in Samsher
   Singh v. State of Punjab and Another [(1974) 2 SCC 831] in
   support of this proposition. He also relied on Municipal
-l
   STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                  541
                 [A.K. PATNAIK, J.]
Corporation, Ludhiana v. lnderjit Singh and Another [(2008)          A
13 sec 506] in which it has been held that a statutory authority
cannot pass a statutory order on an oral prayer made by the
owner of a property regarding compounding fee. He submitted
that the contention of the appellants that the Chief Minister had
orally approved the rejection of the notice of the voluntary         B
retirement of the respondent should not therefore be accepted
by the Court.
      12. In our considered opinion, the answer to the question
 whether the respondent stood voluntary retired from service
 before the order of dismissal was passed by the State               C
 Government will depend mainly on the precise language of
 Clauses (c) and (d) of FR 56 and the provisos thereto, which
·are quoted hereinbelow:
     "(c) Notwithstanding anything contained in Clause (a) or
     Clause (b), the appointing authority may, at any time, by
                                                                      0
     notice to any Government servant (whether permanent or
     temporary), without assigning any reason, require him to-
     retire after he attains the age of fifty years or such
     Government servant may by notice to the appointing
     authority voluntarily retire at any time after attaining the age E
     of forty-five years.
     (d) The period of such notice shall be three     months:
     Provided that-
      (i)   any such Government servant may by order of the
                                                                     F
            appointing authority, without such notice or by a
            shorter notice, be retired forthwith at any time after
            attaining the age of fifty years, and on such
            retirement the Government servant shall be entitled
            to claim a sum equivalent to the amount of his pay       G
            plus allowances, if any, for the period of the notice,
            or as the case may be, for the period by which such
            notice falls short of three months, at the same rates
            at which he was drawing immediately before his
            retirement;                                              H
    542    SUPREME COURT REPORTS                   [2011] 10 S.C.R.


A         (ii)   it shall be open to the appointing authority to allow
                 a Government servant to retire without any notice
                 or by a shorter notice without requiring the
                 Government servant to pay any penalty in lieu of
                 notice:
8                Provided further that such notice given by the
                 Government servant against whom a disciplinary
                 proceeding is pending or contemplated, shall be
                 effective only if it is accepted by the appointing
                 authority, provided that in the case of a
c                contemplated disciplinary proceeding the
                 Government servant shall be informed before the
                 expiry of his notice that it has not been accepted:
                 Provided also that the notice once given by a
                 Government servant under Clause (c) seeking
D
                 voluntary retirement shall not be withdrawn by him
                 except with the permission of the appointing
                 authority".
                                                (emphasis supplied)
E         13. A reading of clause (c) of FR 56 quoted above would
   show that when a government servant attains the age of 45
   years, the appointing authority as well as the government
   servant have the option to initiate voluntary retirement and when
   the government servant chooses to initiate his voluntary
F retirement, he has to serve a notice to the appointing authority.
   Clause (d) of FR 56 further provides that the period of such
   notice shall be three months. There are, however, two provisos
   to Clause (d): proviso (i) and proviso (ii). These are not relevant
   for deciding this case. What is relevant is the proviso after
G proviso (i) and (ii) to Clause (d), which states that notice given
   by the government servant against whom a disciplinary
   proceeding is pending or contemplated, shall be "effective only
   if it is accepted by the appointing authority." In this proviso,
   however, it is clarified that in the case of a "contemplated
H -disciplinary proceeding" the government servant shall be
  STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                    543
                [A.K. PATNAIK, J.]
informed before the expiry of his notice period that it has not        A
been accepted.
      14. In the facts of the present case, the disciplinary
proceeding was initiated against the respondent on
19.02.2008, when the charge sheet containing 16 charges was
issued against the respondent and when Shri Vijay Shanker              B
Pandey, the Commissioner, Luc)rnow Division was appointed
as the Enquiry Officer to enquire into the charges. It is only after
the initiation of a disciplinary proceeding that the respondent
made a request in the copy of his reply dated 28.05.2009 to
the appointing authority to accept his retirement under Clause         C
(c) of FR 56. Thus, even if we treat the request of the
respondent made on 28.05.2009 as the notice of voluntary
retirement, we find that on 28.05.2009 a disciplinary proceeding
was pending against the respondent and as per the language
of the proviso, such notice of voluntary retirement would be           D
"effective only if it is accepted by the appointing authority".
Therefore, until the appointing ~uthority accepted the request
of the respondent for voluntary retirement, the very notice dated
28.05.2009 for voluntary retirement would not be effective.
      15. The High Court, however, has taken the view in the           E
impugned judgment that it was incumbent upon the appointing
authority to inform the respondent before the expiry of the notice
period of three months that his request for voluntary retirement
has not been accepted and the High Court has therefore
directed that a fresh decision be taken by the State Government        F
on the request of the respondent for voluntary retirement after
it found that the Chief Minister had not put her signature in the
order rejecting the request of the respondent for voluntary
retirement. This view taken by the High Court, in our
considered opinion, is contrary to the plain language of the           G
proviso which states that in the case of "a contemplated
disciplinary proceeding" the government servant shall be
informed before the expiry of his notice that it has not been
accepted. As we have already found, this is not a case of "a
contemplated disciplinary proceeding", but a case of                   H
    544    SUPREME COURT REPORTS                    [2011] 10 S.C.R.


A  disciplinary proceeding which was already pending when the
   respondent made the request for voluntary retirement on
   28.05.2009 and the finding of the High Court that the respondent
   was required to be informed before the expiry of his notice of
  ·Voluntary retirement that it had not been accepted is erroneous.
B In view of our finding that in a case where a disciplinary
   proceeding was pending, the relevant proviso to FR 56(c) and
   (d) does not require the decision of the appointing authority to
   be communicated to the Government servant before the expiry
   of the period of notice of voluntary retirement, it is not necessary
c  for us to examine further whether the order dated 16.12.2009
   rejecting the request of the respondent for voluntary retirement
   without the signature of the Chief Minister was valid or not.
          16. The decision of this Court in Union oflndia v. Sayed
    Muzaffar Mir (supra) cited by the respondent does not apply
D to the facts of the present case. In thatcase, Rule 1802 (b) of
    the Indian Railway Establishment Code provided that the
    railway servant could retire voluntarily from service by serving
    three months notice and a railway servant by his letter dated
    22.07.1985 gave a three months notice to the Railways to retire
E from service. After the three months period expired on
    21.10.1985, the order of removal of the railway servant was
    passed on 04.11.1985. On these facts the Central
    Administrative Tribunal, New Mumbai Bench, held that since the
    period of notice of voluntary retirement had expired on
F . 21.10.1985, the order of removal was nonest in the eye of law
    and this Court did not find any infirmity in the order of the
    Tribunal. In the present case, the relevant proviso to Clauses
    (c) and (d) of FR 56 was explicit that in case of a disciplinary
    proceeding which is pending, the notice of voluntary retirement
G cannot be "effective" until the appointing authority acce,pted the
    notice for voluntary retirement. We have already found that
    when the request for voluntary retirement was made by the
    respondent on 28.05.2009, the disciplinary proceeding was
    pending against him. Therefore, the notice of voluntary
    retirement was not effective until a positive order of acceptance
H
  STATE OF U.P. & ORS. v. LUXMI KANT SHUKLA                   545
                [A.K. PATNAIK, J.]
of the notice of voluntary retirement was passed by the State        A
Government.
    17. As has been held by this Court in State of Haryana v.
S.K.Singha/ [(1999)·4 SCC 293] cited by Mr. Rao, that if the
right· to voluntary retirement is conferred on the employee in
absolute terms by the relevant rules and there is .no provision      B
in the rules to withhold permission in certain contingencies, then
voluntary retirement will come into effect automatically on the
expiry of the period specified in the notice, but if such right to
voluntary retirement of an employee, who is under suspension
or who is facing disciplinary proceedings, is not conferred in       C
absolute terms but is contingent upon the permission by the
appointing authority, the notice of voluntary retirement does not
take effect until a positive order is passed by the appointing
authority. In this case, we have found that under the relevant
proviso to Clauses (c) and (d) of FR 56, the right of a              D
Government· servant against whom a disciplinary proceeding
is pending to voluntary retire from service is contingent upon
the order of acceptance being passed by the appointing
authority. Since, no such order of acceptance was passed by
the appointing authority in the present case, the respondent         E
continued in service even after th.e. period of notice of three
months expired in August 2009 and his services were
terminated only with the order of dismissal passed on
07.09.2009.
     18. In the result, the appeal is allowed and the impugned       F
judgment is set aside and the writ petition (C.M.W.P. No.05 (S/
B) of 2010) challenging the rejection of respondent's request
for voluntary retirement is dismissed. There shall be no order
as to costs.
                                                                     G
R.P.                                           Appeal allowed.