Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

The Indore bench of the Madhya Pradesh High Court recently held that in cases of voluntary retirement, the Pension Rules as on the date of application of voluntary retirement shall be applicable and not the Rules prevailing on the date of expiration of the notice period of the government servant.A single judge bench of Justice Vijay Kumar Shukla observed, “In case of voluntary retirement of an employee, the Rules prevailing on the date of application/notice under Rule 42(1)(a) will be applicable and not the Rules prevailing on the date of expiration of notice period.”The court said, “The amendment in Rule 42 & 42-A of Pension Rules shall operate prospectively and not retrospectively.”The issue raised before the court was “Whether in the case of voluntary retirement of an employee, the Rules on the date of application/notice under Rule 42(1)(a) of Pension Rules or the Rules prevailing on the date when one-month notice period expires would be applicable?”. The court thus, referred to the provisions of Rule 42 of M.P. Pension Rules 1976. It inferred that the entire scheme of Rule 42 provides that once a notice in prescribed proforma is given, there is a specific bar of sub-rule (2) of Rule 42(1)(a) and the same cannot be withdrawn by the government servant without the approval of the competent authority.The court said, “If the notice of voluntary retirement is not withdrawn before the date indicated in the said notice of voluntary retirement, it will automatically become operative from the date indicated in the notice of voluntary retirement and the Government Servant would be retired voluntarily from the date of his choice indicated in the said notice.”The court further observed, “The intention of the Rule making authority is to confer an absolute and indefeasible right to the government servant to get voluntarily retire after completing qualifying services from the date on his choice indicated in the aforesaid notice.”The present petition was filed seeking quashing of orders by which the application of the petitioner for voluntary retirement as per the unamended Rule of 42-A of M.P. Civil Services Pension Rules, 1976 prevailing at the time of the submission of the application was rejected.The petitioner was appointed to the post of Assistant Surgeon/Insurance Health Officer in Directorate Employee State Insurance Services on an ad-hoc basis in 1985. The services of the petitioner were regularised in 1987. The petitioner submitted an application for voluntary retirement and served a notice on March 21, 2006. On April 7, 2006 Rule 42 and 42-A of the Pension Rules were amended and as per Rule 42(1)(a) the minimum qualifying service for seeking voluntary retirement was raised from 15 years to 20 years. Further Rule 42-A was amended and earlier the qualifying service was increased with such period that would take an employee to the date of superannuation subject to a capping that the total service does not exceed 33 years. However, after the amendment, as per Rule 42-A, a period of up to 5 years could only be added in the qualifying service, with a capping that the total service does not exceed 33 years. A formal order was issued accepting the application for voluntary retirement of the petitioner though no such formal order of acceptance was required to be passed under Rule 42 of Pension Rules. The Pension Payment Order (PPO) of the petitioner was prepared in 2009 where the total qualifying service of the petitioner was taken as 20 years 4 months and 5 days in contravention of Rule 42-A of the Pension Rules existing at the time of submission of application for voluntary retirement and issuance of notice Form 28.The counsel for the petitioner submitted that the application of the petitioner for voluntary retirement/Notice form 28 shall be governed by the unamended provisions of Rule 42 and 42-A of Pension Rules as the amendment came into force on 07.04.2006. The said amendment would not be applicable retrospectively as an indefeasible right for seeking voluntary retirement under Rule 42 of Pension Rules has already vested on the date of filing of application itself.The counsel for the respondents argued that in the application for voluntary retirement, the petitioner had intended the date of voluntary retirement w.e.f. 20.04.2006 and prior to the expiration of the notice period, the amendment had come into effect, therefore, the amended rules shall govern the application for voluntary retirement. It was further argued that the judgments relied upon by the petitioner were not applicable to the facts of the present case as in the present case, the amendment in the Rules had come into effect prior to expiration of notice period.The court referred to a coordinate bench's decision in Dr. Umesh Chandra vs. State of M.P. & Ors. wherein it was held that the amended Rules cannot be made applicable with retrospective effect by which the period of service for voluntary retirement was enhanced to 25 years in place of 20...

Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

Anukriti Mishra

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