Delhi High Court: In a matter wherein, a Judicial Assistant sought voluntary retirement, V. Kameswar Rao, J., observed that in view of the Central Civil Services (Pension) Rules, 1972:

Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Petitioner had joined the post of Lower Division Clerk at District and Sessions Judge and was subsequently promoted to the post of Reader/Judicial Assistant.

Further, in the year 2018, he was diagnosed with Lumbar Spondylosis, a type of lower back pain caused by excessive degeneration of lower spine. In view of the said condition, petitioner sought transfer since his medical condition would not allow him to continue with the long hours of travel from his residence at Rohini to the Dwarka Courts.

Between July 2019 and March 2020, the petitioner was forced to take several leaves on account of his medical condition and his inability to travel.

Petitioner’s counsel, Sambit Nanda submitted that due to the respondent’s refusal to allow the petitioner’s request to transfer him back to Rohini Courts due to his medical condition, petitioner was constrained to send a notice under Rule 48-A of the Central Civil Services (Pension) Rules, 1972 requesting him to allow to take voluntary retirement from service.

Petitioner had completed 20 years of continuous service as required under Rules 48-A.

Since the respondent did not refuse permission for voluntary retirement within 3 months of the Notice, petitioner’s retirement became effective on the date of expiry of the notice and upon receiving no-intimation regarding his pending dues, the petitioner sent another letter to respondent requesting to release all pensionary dues and retirement benefits.

It was stated that despite no responding to any of the petitioner’s requests, and notwithstanding the fact that he had retired, respondent sent a notice to the petitioner seeking an explanation as to why he had been absent from office and further directed the petitioner to join his duty immediately.

Issue of consideration

Whether respondent is justified in rejecting the request of the petitioner under Rule 48-A of the Pension Rules, seeking retirement?

Firstly, the Court reproduced the contents of impugned communication by which the petitioner’s request was rejected for voluntary retirement, wherein it was stated that he had completed only 19 years 11 months and 4 days of qualifying service and not 20 years as is required under the rule.

As per Rule 48-A of Pension Rules:

“48-A. Retirement on completion of 20 years’ qualifying service

(1) 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.”

The said rule makes it clear that a Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Rule 3(q) of the Pension rules states that: “service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under the rules.” 

Respondent had submitted that petitioner was on extraordinary leave without pay, which was excluded to determine the qualifying service.

It was noted that the petitioner was issued a show-cause notice for his absence, to which his wife sent a reply stating that he was suffering from back pain and partial paralysis. But the Court notes that petition had in his subsequent letter referred to backpain/spinal pain as his medical condition, because of which he was seeking voluntary retirement.

Surely, a backpain cannot be a justification to remain on continuous leave without intimation/leave application.

High Court noted that on the date of notice seeking voluntary retirement, the net qualifying service was 19 years 8 months and 10 days. The date on which the notice was received by respondent. The date on which the notice was received by the respondent, was 19 years 8 months and 16 days and on the date of completion of three months’ notice period it was 19 years 11 months and 15 days.

Bench observed that the provision of Pension Rules is very clear that only after a government servant has completed 20 years of qualifying service, he by giving notice of not less than 3 months retire from service. The Rule presupposes the Government servant having the qualifying service before giving a notice.

Rule 48-A of the Pension Rules has to be read in conjunction with Rule 49(3) of the Pension Rules.

Purport of Rule 49(3) is, for calculating the length of qualifying service, that is fraction of a year equal to three months and above shall be treated as completed as one-half year and reckoned as qualifying service, as has been interpreted in Govt. Of Delhi v. North Delhi Power Ltd., LPA 677 of 2011. 

Rule contemplates rounding up of a fraction to the next nearest half, that is if the period is beyond six months, a Government servant must necessarily have three months service beyond six months to be treated as complete one half-year, which in this case the petitioner did not have.

In view of the above discussion, petition was dismissed. [Gaurav Bhutani v. Principal District and Sessions Judge Headquarters, 2021 SCC OnLine Del 4307, decided on 8-09-2021]

Advocates before the Court:

For the Petitioner: Sambit Nanda, Advocate

For the Respondent: Avnish Ahlawat, SC (DSJ) with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

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