Request To Extend Voluntary Retirement Date Can't Be Ignored If Made Before Retirement Takes Effect: Rajasthan High Court

The Rajasthan High Court has held that a request to extend the date of voluntary retirement cannot be ignored if it is made before the retirement takes effect, even if the applicable service rules do not expressly provide for such an extension.

The Division Bench of Chief Justice Sanjay K. Agrawal and Justice Inderjeet Singh observed that although the Rajasthan Civil Services (Pension) Rules, 1996, do not prescribe a procedure for extending the date of voluntary retirement, the absence of such a provision does not prohibit an employee from seeking an extension, particularly when the retirement has not yet taken effect.

For context, the petitioner was working as an Assistant Commercial Taxes Officer in Commercial Taxes Department, Government of Rajasthan, when he applied for voluntary retirement on account of ill health. Before the prospective date of his retirement, he applied for an extension of the date of retirement which was accepted.

Subsequently, he re-applied for such an extension, however, this time, this application was rejected and the petitioner was retired on October 31, 2014.

This order was challenged and the single judge set aside the order of retirement in January 2017, directing reinstatement of the petitioner. However, the period between the retirement and reinstatement was confined only for pension, and not treated as continuity in service.

This order was challenged both by the petitioner as well as the state.

The petitioner argued that he was liable to be treated as continued in service between the period of retirement and reinstatement, and hence, sought directions to the State in this regard.

On the contrary, the State opposed the order of the single judge that set aside retirement order. Further, it was argued that the prayer of the petitioner could not be granted since in the petition before the single judge, the prayer was confined to setting aside of the order of retirement.

After hearing the contentions, the Court perused Rule 50 of the Rules that laid down procedure for voluntary retirement, and referred to the Supreme Court case of Union of India etc. Vs. Gopal Chandra Misra and others, in which it was held that,

“…if a person by writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the person can at any time before the arrival of that prospective date on which it is intended to be effective withdraw it because the Constitution does not bar such withdrawal.”

In this light, the Court opined that where an employee intended his resignation to take effect from a future date, such resignation did not terminate his service before the said prospective date and could be withdrawn before the date on which it was intended to become effective, in absence of any legal, contractual or constitutional bar.

The Court highlighted that since in the present case, the petitioner had submitted application for extension of date of voluntary retirement, followed by an application for withdrawal of voluntary retirement, before the date fixed for his retirement, he could not have been retired.

“…merely because the writ petitioner has not used the specific term “withdrawal”, the communication made by him seeking extension of his date of voluntary retirement could not have been ignored when he clearly conveyed that he does not want his earlier retirement to take effect on the previously fixed date.”

In this light, the Court held that the single judge had rightly set aside the retirement. On the prayer seeking continuity of service between retirement and reinstatement, the Court agreed with the argument of the State that no such demand was made by the petitioner in the writ petition before the single judge.

Accordingly, the matter was disposed of.