Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.7105 OF 2011  (Arising out of S.L.P. (C) No. 33672 OF 2010)

  State of U.P. & Ors.                  …… Appellants

Versus

Luxmi Kant Shukla      …… Respondent

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. This is an appeal against the judgment and order dated  

16.09.2010 of the Division Bench of the Allahabad High Court,  

Lucknow Bench, in Civil  Miscellaneous Writ  Petition No.  05  

(S/B)  of  2010  (hereinafter  referred  to  as  ‘the  impugned  

judgment’).

3. The  facts  very  briefly  are  that  the  respondent  is  a  

member of  the Provincial  Civil  Services of  the  State  of  U.P.

When  he  was  posted  as  Special  Secretary,  Samaj  Kalyan  

Department, Government of U.P. in 2006, he authored a book  

titled ‘Jati Raj’.  As the book contained some remarks against  

national  leaders  like  late  Dr.  B.R.  Ambedkar,  the  State  

Government  issued  a  letter  dated  11.09.2007  to  the  

respondent  when  he  was  posted  as  Special  Secretary,  

Dharmarth Karya Department, Government of U.P., requesting  

him to furnish to the Government a copy of the book.  The  

respondent instead of furnishing a copy of the book proceeded  

on leave and on 12.02.2008 he was placed under suspension  

in  contemplation  of  the  disciplinary  proceedings.   On  

19.02.2008, a charge-sheet containing 16 charges was served  

on him.  The charges against the respondent were that certain  

passages in the book ‘Jati Raj’ written by him were defamatory  

and  derogatory  to  national  leaders  and  he  had  hurt  the  

religious sentiments of the people and created hatred amongst  

various sections of the society.  By order dated 19.02.2008,  

the State Government appointed Shri Vijay Shanker Pandey,  

the Commissioner, Lucknow Division, as the Enquiry Officer  

to enquire into the charges.   

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4. Aggrieved, the respondent filed Writ Petition No. 256 (SB)  

of 2008 before the Allahabad High Court, Lucknow Bench, and  

by an interim order dated 14.03.2008 the High Court stayed  

the operation of the order of suspension as well as the order  

appointing  the  Enquiry  Officer.   The  State  Government  

challenged  the  order  dated  14.03.2008  of  the  High  Court  

before this Court in Special Leave Petition (Civil) No. 12749 of  

2008 and this  Court,  while  issuing  notice  in  Special  Leave  

Petition, stayed the operation of the order dated 14.03.2008  

passed by the  High Court.   Thereafter,  this  Court  by order  

dated 14.11.2008 disposed of the Special Leave Petition with a  

request to the High Court to dispose of the Writ Petition No.  

256 (S/B) of 2008 expeditiously and with the direction that  

pending  such  disposal  of  the  writ  petition,  the  State  

Government was not to take any final decision imposing any  

penalty  on  the  respondent.   In  the  meanwhile,  as  the  

respondent did not submit his reply to the charge-sheet, the  

Enquiry Officer conducted the enquiry ex parte and submitted  

an enquiry  report  dated 15.07.2008 holding the respondent  

guilty of the charges.   The disciplinary authority issued notice  

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dated 05.08.2008 to the respondent to show cause why the  

enquiry  report  should  not  be  accepted.   On  01.05.2009,  

having  found  that  the  ex-parte  enquiry  was  violative  of  

principles of natural justice, the disciplinary authority passed  

an  order  directing  the  Enquiry  Officer,  Shri  Vijay  Shanker  

Pandey,  to  hold  the  enquiry  afresh  after  giving  sufficient  

opportunity of hearing to the respondent in accordance with  

the rules.  Writ Petition No. 256 (SB) of 2008 was disposed of  

by the High Court on 15.05.2009 directing the Enquiry Officer  

to commence the proceedings afresh from the stage of charge-

sheet.  The respondent filed a Review Petition No. 115 of 2009,  

but  the  High  Court  dismissed  the  Review  Petition  on  

26.05.2009.   

5.   The respondent then filed his reply to the charge-sheet  

on  28.05.2009  to  the  Enquiry  Officer,  Shri  Vijay  Shanker  

Pandey  and  endorsed  a  copy  of  the  reply  to  the  Principal  

Secretary  (Appointment  Section–II),  Government  of  U.P.  

requesting him to exonerate him from the charges against him  

and  instead  grant  voluntary  retirement  from  service  under  

Rule 56 of the U.P. Fundamental Rules, 1942 (for short ‘FR  

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56’).  As Shri Vijay Shanker Pandey declined to conduct the  

enquiry  afresh,  the  State  Government  by  its  order  dated  

01.06.2009 appointed Shri Alok Ranjan, Principal Secretary,  

Urban Development, as the Enquiry Officer to enquire into the  

charges against the respondent.   The respondent submitted  

his reply to the charge sheet to the new Enquiry Officer, Shri  

Alok Ranjan on 11.06.2009 and after considering the reply of  

the  respondent  and  the  material  available  on  record,  the  

Enquiry Officer submitted his enquiry report on 30.11.2009 to  

the  State  Government  holding  that  the  charges  against  the  

respondent  were  proved.   While  the  enquiry  report  was  

pending consideration before the State Government, the State  

Government first considered the request of the respondent in  

his representation dated 05.10.2009 for voluntary retirement  

and by order dated 16.12.2009 intimated the respondent that  

his request for voluntary retirement has not been accepted by  

the State Government.   

6.   Aggrieved, the respondent filed Civil Miscellaneous Writ  

Petition  No.  5  (SB)  of  2010  in  the  Allahabad  High  Court,  

Lucknow Bench for quashing the order dated 16.12.2009 of  

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the State Government and for directing the State Government  

to  pay  all  his  retirement  benefits  admissible  under  FR  56.  

During the pendency of the Civil Miscellaneous Writ Petition  

No.  5  (SB)  of  2010,  the  State  Government  issued  a  notice  

dated 05.02.2010 to the respondent to show cause why the  

enquiry report dated 30.11.2009 should not be accepted.  The  

respondent submitted his reply dated 02.03.2010 to the show  

cause  notice  and  also  made  a  request  for  being  given  an  

opportunity  of  personal  hearing.   Personal  hearing  was  

granted to the respondent on 04.06.2010 and the respondent  

was dismissed from service by the disciplinary authority  by  

order dated 07.09.2010.  Aggrieved, the respondent filed Civil  

Miscellaneous  Writ  Petition  No.  1386  (SB)  of  2010  on  

14.09.2010 before the Allahabad High Court, Lucknow Bench,  

against the order of dismissal and this Writ Petition is pending  

consideration before the High Court.  

7. On 16.09.2010, the Division Bench of the High Court, by  

the impugned judgment, quashed the order dated 16.12.2009  

of  the State  Government  and rejected his request  to accept  

voluntary  retirement  under  FR  56  and  directed  the  State  

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Government  to  reconsider  the  respondent’s  request  afresh  

keeping  in  view  the  observations  made  in  the  impugned  

judgment.   By  the  impugned  judgment,  however,  the  High  

Court did not in any way interfere with the subsequent order  

dated 07.09.2010 of the disciplinary authority dismissing the  

respondent from service as the order of dismissal was subject  

matter  of  challenge  in  a  separate  writ  petition,  Civil  

Miscellaneous Writ Petition No. 1386 (SB) of 2010, before the  

Allahabad High Court, Lucknow Bench.  

8. Mr.  P.P.  Rao,  learned  counsel  appearing  for  the  

appellants,  submitted  that  under  Clause  (c)  of  FR  56,  a  

government servant may by notice to the appointing authority  

voluntarily  retire  at  any  time  after  attaining  the  age  of  45  

years.  He submitted that the respondent had not served any  

such notice to the State Government and had only sent to the  

State Government a copy of his reply dated 28.05.2009 to the  

Enquiry  Officer,  Shri  Vijay  Shanker  Pandey,  and  made  an  

endorsement at the foot of the reply to the Principal Secretary  

(Appointment Section-II), Government of U.P. that he may be  

retired from service under FR 56 and he may be granted all  

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service and consequential benefits.  He vehemently submitted  

that such endorsement on a copy of the reply with a request to  

the  appointing  authority  to  grant  him  voluntary  retirement  

from service was not a notice of voluntary retirement in terms  

of FR 56.  He next submitted that the proviso to Clauses (c)  

and (d) of FR 56 clearly provides that the notice given by the  

Government servant against whom a disciplinary proceeding is  

pending  shall  be  effective  only  if  it  is  accepted  by  the  

appointing  authority  and  that  the  proviso  does  not  require  

that  where  a  disciplinary  proceeding  is  pending  against  a  

Government servant, he should be informed of the decision on  

his request for voluntary retirement before expiry of the notice  

period.  He argued that a close reading of the proviso would  

show  that  only  where  a  disciplinary  proceeding  is  

contemplated against a Government servant, the Government  

servant  has  to  be  informed  before  the  expiry  of  the  notice  

period  about  the  decision  that  his  request  for  voluntary  

retirement has not been accepted.  He submitted that the High  

Court has, on the contrary, held in the impugned judgment  

that the respondent was required to be informed before the  

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expiry  of  the  period  of  notice  about  the  decision  that  his  

request for voluntary retirement has not been accepted.   

9. Mr.  Rao  next  submitted  that  in  any  case  the  State  

Government as the appointing authority  has considered the  

request  of  the  respondent  for  voluntary  retirement  and  

rejected the same as would be evident from the relevant file  

and in particular  the note dated 26.11.2009 put up by the  

Under Secretary, Appointment Department and dealt with by  

the Special Secretary of the Government on 27.11.2009 and by  

the  Principal  Secretary  of  the  Department  and  the  Chief  

Secretary,  Government  of  U.P.,  on  02.12.2009  and  orally  

approved by the Chief Minister on 08.12.2009 as recorded by  

the Special Secretary on 08.12.2009.  He submitted that the  

High  Court  has,  however,  taken  a  view  in  the  impugned  

judgment that as the Chief Minister has not put her signature  

in  the  order  dated  08.12.2009  rejecting  the  request  of  the  

respondent for voluntary retirement, the order was not dully  

authenticated in terms of the Rules of Business.  He cited the  

decision of the Punjab and Haryana High Court in Bishan Lal   

v. State of Haryana (AIR 1977 P&H 7) that an order cannot be  

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called in question merely because the Chief Minister has not  

put his signature on the official file.  He finally submitted that  

since the State Government has not accepted the request for  

voluntary retirement made by the respondent, the respondent  

continued in service till he was dismissed by the order dated  

07.09.2010.  

10. The respondent,  who appeared in-person, on the other  

hand,  submitted  that  in  the  copy  of  his  reply  dated  

28.05.2009  to  the  Enquiry  Officer,  which  was  sent  to  the  

Principal  Secretary,  Appointment  Section-II,  Government  of  

U.P., he had served a notice to the appointing authority that  

he may be retired under Clause (c) of FR 56, and all service  

and  consequential  benefits  may  be  granted  to  him  under  

Clause (e) of FR 56.  He submitted that this was therefore a  

notice in terms of Clause (c) of FR 56.  He submitted that the  

High Court has rightly held in the impugned judgment that  

once the State Government as the appointing authority took a  

decision  and  treated  the  reminder  of  the  respondent  as  a  

request  for  accepting  his  voluntary  retirement,  the  State  

Government cannot now be permitted to take a stand that the  

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request  made  by  the  respondent  in  the  endorsement  dated  

28.05.2009  was  not  a  notice  of  voluntary  retirement.   He  

further  submitted  that  Clause  (d)  of  FR 56 clearly  provides  

that the period of notice would be three months.  He argued  

that  on  the  expiry  of  the  three  months  period  from  

28.05.2009,  the  respondent  stood  compulsory  retired  from  

service.  He submitted that the State Government should have  

informed him about its decision not to accept his voluntary  

retirement  before  the  expiry  of  the  period  of  three  months  

notice served by the respondent.  But the State  Government  

did not communicate the decision to the respondent within the  

notice period of  three  months and therefore  the respondent  

stood compulsory retired from service on expiry of the notice  

period and he was entitled to the pension and other retirement  

benefits in accordance with Clause (e) of FR 56.  In support of  

his submissions, he cited the decision of this Court in Union of  

India and Others v. Sayed Muzaffar Mir [1995 Supp (1) SCC  

76].

11.  The respondent next submitted that admittedly the Chief  

Minister  has  not  put  her  signature  on  the  proposal  not  to  

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accept his notice of voluntary retirement and therefore there is  

no decision of the State Government not to accept his notice of  

voluntary  retirement.   He  vehemently  argued  that  Article  

166(3) of the Constitution of India provides that the Governor  

shall  make rules for the more convenient transaction of the  

business of the Government of the State and for the allocation  

among  Ministers  of  such  business,  and  it  does  not  

contemplate delegation of the powers of the Ministers in favour  

of any officer of the State.  He cited the decision of this Court  

in Samsher Singh v. State of Punjab and Another [(1974) 2 SCC  

831]  in  support  of  this  proposition.   He  also  relied  on  

Municipal Corporation, Ludhiana v. Inderjit Singh and Another  

[(2008) 13 SCC 506] in which it has been held that a statutory  

authority  cannot  pass  a  statutory  order  on  an  oral  prayer  

made by the owner of a property regarding compounding fee.  

He submitted that the contention of the appellants that the  

Chief Minister had orally approved the rejection of the notice  

of  the  voluntary  retirement  of  the  respondent  should  not  

therefore be accepted by the Court.  

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12. In  our considered opinion,  the  answer  to  the  question  

whether the respondent stood voluntary retired from service  

before  the  order  of  dismissal  was  passed  by  the  State  

Government  will  depend mainly  on  the  precise  language  of  

Clauses (c) and (d) of FR 56 and the provisos thereto, which  

are quoted hereinbelow:   

“(c)  Notwithstanding  anything  contained  in  Clause  (a)  or  Clause  (b),  the  appointing  authority may, at any time, by notice to any  Government  servant  (whether  permanent  or  temporary),  without  assigning  any  reason,  require him to retire after he attains the age  of  fifty  years  or  such  Government  servant  may  by  notice  to  the  appointing  authority  voluntarily retire at any time after attaining  the age of forty-five years.

(d)  The period of such notice shall be three  months:  

   Provided that- (i) any  such  Government  servant  may  by  

order of the appointing authority, without  such  notice  or  by  a  shorter  notice,  be  retired forthwith at any time after attaining  the  age  of  fifty  years,  and  on  such  retirement  the  Government  servant  shall  be  entitled  to  claim a  sum equivalent  to  the amount of his pay plus allowances, if  any, for the period of the notice, or as the  case may be, for the period by which such  notice falls short of  three months, at  the  

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same  rates  at  which  he  was  drawing  immediately before his retirement;

(ii) it shall be open to the appointing authority  to  allow  a  Government  servant  to  retire  without any notice or by a shorter notice  without requiring the Government servant  to pay any penalty in lieu of notice:

Provided further that such notice given by  the  Government  servant  against  whom a  disciplinary  proceeding  is  pending  or  contemplated, shall be effective only if it is  accepted  by  the  appointing  authority,  provided that in the case of a contemplated  disciplinary  proceeding  the  Government  servant shall be informed before the expiry  of his notice that it has not been accepted:

Provided also that the notice once given by  a  Government  servant  under  Clause  (c)  seeking voluntary retirement shall  not be  withdrawn  by  him  except  with  the  permission of the appointing authority”.

  (emphasis supplied)     

13.   A reading of clause (c)  of FR 56 quoted above would  

show that when a government servant attains the age of 45  

years,  the  appointing  authority  as  well  as  the  government  

servant have the option to initiate  voluntary retirement and  

when the government servant chooses to initiate his voluntary  

retirement,  he  has  to  serve  a  notice  to  the  appointing  

authority.  Clause (d) of FR 56 further provides that the period  

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of such notice shall be three months.  There are, however, two  

provisos to Clause (d): proviso (i) and proviso (ii).  These are  

not relevant for deciding this case.   What is relevant is the  

proviso after proviso (i) and (ii) to Clause (d), which states that  

notice  given  by  the  government  servant  against  whom  a  

disciplinary proceeding is pending or contemplated, shall  be  

“effective only if it is accepted by the appointing authority.”  In  

this  proviso,  however,  it  is  clarified  that  in  the  case  of  a  

“contemplated  disciplinary  proceeding”  the  government  

servant shall be informed before the expiry of his notice period  

that it has not been accepted.   

14.    In  the  facts  of  the  present  case,  the  disciplinary  

proceeding  was  initiated  against  the  respondent  on  

19.02.2008, when the charge sheet containing 16 charges was  

issued against the respondent and when Shri Vijay Shanker  

Pandey, the Commissioner, Lucknow Division was appointed  

as the Enquiry Officer to enquire into the charges.  It is only  

after  the  initiation  of  a  disciplinary  proceeding  that  the  

respondent  made  a  request  in  the  copy  of  his  reply  dated  

28.05.2009  to  the  appointing  authority  to  accept  his  

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retirement under Clause (c) of FR 56.  Thus, even if we treat  

the  request  of  the  respondent  made  on  28.05.2009  as  the  

notice of voluntary retirement, we find that on 28.05.2009 a  

disciplinary  proceeding  was pending against  the  respondent  

and  as  per  the  language  of  the  proviso,  such  notice  of  

voluntary retirement would be “effective only if it is accepted  

by the appointing authority”.  Therefore, until the appointing  

authority accepted the request of the respondent for voluntary  

retirement,  the  very  notice  dated  28.05.2009  for  voluntary  

retirement would not be effective.   

15.     The High Court, however, has taken the view in the  

impugned  judgment  that  it  was  incumbent  upon  the  

appointing  authority  to  inform  the  respondent  before  the  

expiry of the notice period of three months that his request for  

voluntary  retirement  has  not  been  accepted  and  the  High  

Court has therefore directed that a fresh decision be taken by  

the State  Government  on the request  of  the  respondent  for  

voluntary retirement after it found that the Chief Minister had  

not put her signature in the order rejecting the request of the  

respondent for voluntary retirement.  This view taken by the  

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High Court, in our considered opinion, is contrary to the plain  

language of  the proviso which states that  in the case of  “a  

contemplated disciplinary proceeding” the government servant  

shall be informed before the expiry of his notice that it has not  

been accepted.  As we have already found, this is not a case of  

“a  contemplated  disciplinary  proceeding”,  but  a  case  of  

disciplinary proceeding which was already pending when the  

respondent  made  the  request  for  voluntary  retirement  on  

28.05.2009  and  the  finding  of  the  High  Court  that  the  

respondent was required to be informed before the expiry of  

his  notice  of  voluntary  retirement  that  it  had  not  been  

accepted is erroneous.  In view of our finding that in a case  

where  a  disciplinary  proceeding  was  pending,  the  relevant  

proviso to FR 56(c) and (d) does not require the decision of the  

appointing authority to be communicated to the Government  

servant before the expiry of the period of notice of voluntary  

retirement,  it  is  not  necessary  for  us  to  examine  further  

whether the order dated 16.12.2009 rejecting the request of  

the respondent for voluntary retirement without the signature  

of the Chief Minister was valid or not.   

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16.     The decision of this Court in  Union of India v. Sayed  

Muzaffar Mir (supra) cited by the respondent does not apply to  

the facts of the present case.  In that case, Rule 1802 (b) of the  

Indian Railway Establishment Code provided that the railway  

servant could retire voluntarily from service by serving three  

months  notice  and  a  railway  servant  by  his  letter  dated  

22.07.1985  gave  a  three  months  notice  to  the  Railways  to  

retire from service.  After the three months period expired on  

21.10.1985, the order of removal of the railway servant was  

passed  on  04.11.1985.   On  these  facts  the  Central  

Administrative Tribunal, New Mumbai Bench, held that since  

the  period of  notice  of  voluntary  retirement had expired  on  

21.10.1985, the order of removal was nonest in the eye of law  

and this Court did not find any infirmity in the order of the  

Tribunal.  In the present case, the relevant proviso to Clauses  

(c) and (d) of FR 56 was explicit that in case of a disciplinary  

proceeding  which  is  pending,  the  notice  of  voluntary  

retirement cannot be “effective” until the appointing authority  

accepted the notice for voluntary retirement.  We have already  

found  that  when  the  request  for  voluntary  retirement  was  

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made  by  the  respondent  on  28.05.2009,  the  disciplinary  

proceeding was pending against him.  Therefore, the notice of  

voluntary retirement was not effective until a positive order of  

acceptance of the notice of voluntary retirement was passed by  

the State Government.   

17.   As has been held by this Court in State of Haryana v.  

S.K.Singhal [(1999) 4 SCC 293] cited by Mr. Rao, that if the  

right to voluntary retirement is conferred on the employee in  

absolute terms by the relevant rules and there is no provision  

in the rules to withhold permission in certain contingencies,  

then voluntary retirement will come into effect automatically  

on the expiry of the period specified in the notice, but if such  

right  to  voluntary  retirement  of  an employee,  who is  under  

suspension or who is facing disciplinary proceedings,  is not  

conferred  in  absolute  terms  but  is  contingent  upon  the  

permission  by  the  appointing  authority,   the  notice  of  

voluntary retirement does not take effect until a positive order  

is passed by the appointing authority.  In this case, we have  

found that under the relevant proviso to Clauses (c) and (d) of  

FR 56,  the  right  of  a  Government  servant  against  whom a  

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disciplinary  proceeding  is  pending  to  voluntary  retire  from  

service  is  contingent  upon  the  order  of  acceptance  being  

passed by the appointing authority.  Since, no such order of  

acceptance  was  passed  by  the  appointing  authority  in  the  

present case, the respondent continued in service even after  

the period of notice of three months expired in August 2009  

and  his  services  were  terminated  only  with  the  order  of  

dismissal passed on 07.09.2009.  

18.   In the result, the appeal is allowed and the impugned  

judgment is set aside and the writ petition (C.M.W.P. No.05  

(S/B)  of  2010)  challenging  the  rejection  of  respondent’s  

request for voluntary retirement is dismissed.  There shall be  

no order as to costs.   

……………………..J.                                                                      (R.  V.  Raveendran)

……………………..J.                                                                       (A.  K.  Patnaik) New Delhi, August 19, 2011.      

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