There could be many more inputs on the above subject. But today, we are concerned about those getting out of the said services ! A very pertinent question came for consideration before the Hon'ble Apex Court - Who is competent to concede the request for voluntary retirement in case of members of the All India Services, Centre or the concerned State Government ?

Brief facts of the case.

An IPS officer of the 75 batch from the Joint Cadre of Assam and Meghalaya, opted for voluntary retirement of service from 1 st August , 97 having completed 22 years of service. While opting for voluntary retirement, the said officer was under suspension from service and disciplinary proceedings were pending against him. The said officer addressed the letter seeking voluntary retirement to the concerned State Chief Secretary who thereafter forwarded the same to the Union Ministry of Home Affairs for its approval . Instead of approving the same, the said proposal was referred 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.

Vide notification dated 8.9.1997 , said officer was communicated that his request for voluntary retirement has been accepted by the Governor of Assam with effect from 1-8-97 (F.N.) without prejudice to the ongoing disciplinary proceedings against him.

Apparently no scope for litigation as of now !!! The issue was raked up when the said officer filed a writ petition alleging that the acceptance of his request for voluntary requirement by the State Government was illegal and hence he ought to be reinstated as he had subsequently withdrawn his proposal of voluntary requirement.

A Division Bench of the Gauhati High Court dismissed the said writ petition and hence an appeal before the Hon'ble Apex Court.

Submissions before the Apex Court :-

The said officer, who appeared in person, raised the following contentions in support of his appeal :

In terms of the proviso appended to Rule 16 (2A), the State of Assam could not have accepted the offer of voluntary retirement;

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 State Government;

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 submissions on behalf of the respondent were as follows :-

The Central Government having approved the proposal of the Joint Cadre Authority, the requirements of the Rules have substantially been complied with;

It was not necessary to accept the offer of the appellant on or before 1.8.1997 in view of the extant Rules;

The appellant having withdrawn his offer only in 1999, i.e., much after acceptance of his offer, it was invalid in law.

After hearing the submissions from the both sides, facts as on record and the taking note of the relevant provisions off the All India Services (Death-cum-Retirement Benefits) Rules 1958 , Hon'ble Apex Court observed that :-

An offer of retirement made by a member of service requires acceptance by the Central Government and not by the 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 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, the State of Assam.

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 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.

If the Central Government intended to consider the matter, 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 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.

When an employee offers to retire from service, his offer cannot be said to have accepted automatically unless the rule provides therefor.

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

An appropriate order should be passed within a reasonable period. Normally, three months notice is required to be given as 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 withdrew his offer only in 1999 by a letter dated 10.8.1999 which was impermissible as prior thereto the offer had already been accepted and a notification had also been issued.

The Appellant did not assign any specific reason 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 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.

And the verdict !!!

Declining to order reinstatement of the appellant, Hon'ble Apex Court observed that "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 the acceptance. It has been accepted that the Central Government has communicated its decision only to the State Government."

On the issue of payment of terminal benefits , the Hon'ble Apex Court considered the peculiar facts and circumstances of this case as fit to exercise the powers under Article 142 of the Constitution and directed that the appellant shall be paid all his pensionary benefits with interest at the rate of 9 Per cent per annum with effect from 1st August, 1997 ; that the appellant shall be paid his salary for the period 1st August, 1997 to 8th September, 1997 and that he shall receive Rs. 50,000/- as costs from the Union of India.

(See 2006-HRIOL-22-SC-SERVICE in 'Laws 4 You')