Pat HC | Application for voluntary retirement cannot be treated as resignation application; HC quashes impugned order

Patna High Court: Birendra Kumar, J., addressed the instant petition against the order of State whereby the petitioner’s application for voluntary retirement was treated as an application for resignation.

On 31-10-2005 the petitioner filed an application to the Secretary, Health Department, stating therein that due to certain personal and family reasons the petitioner was not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01-02-2006. Since, the petitioner had not completed 20 years of service for retiral benefit, the petitioner made further prayer in the said application that the intervening period between 01-11-2005 to 31-01-2006 be treated as a period spent on extra-ordinary leave.

The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code. The respondent initiated a departmental proceeding against the petitioner on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. Consequently, the respondent treated the application of the petitioner as an application of resignation without any rhyme or reason or any such averment in the application.

Noticing that the authorities did not take any decision on the prayer of the petitioner for voluntary retirement made in the year 2006 till 2013 and in 2013 the petitioner was fulfilling the conditions for voluntary retirement as per Rule 74(b) of the Bihar Service Code and had already completed 50 years of his age for qualifying to make prayer for voluntary retirement., the Bench stated,

“Either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation.”

Therefore, it was held that the act of respondent suffered from arbitrariness and takes away the valuable legal right of the petitioner which made it unsustainable in law.  Hence, the impugned order was quashed. The respondents were directed to treat the prayer of the petitioner as prayer for voluntary retirement with all the retiral benefits according to law which would be effective from the date of the impugned order, i.e., 02-01-2013. [Vinoy Singh v. State Of Bihar, CW No. 1556 of 2019, decided on 19-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

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