Rule 65 MCS (Pension) Rules | Voluntary Retirement Notice Withdrawal Valid Without Prior Approval : Bombay HC

The Bombay High Court has clarified a critical aspect of Rule 65 of the Maharashtra Civil Services (Pension) Rules, 1982, holding that a government servant’s request to withdraw a voluntary retirement notice is valid if made before the intended date of retirement, even without prior approval. The judgment underscores that arbitrary rejection of such requests violates constitutional principles and mandates payment of salary arrears with consequential benefits.

Background & Facts

The Dispute

The petitioner, Vithal Kalyankar, a Senior Clerk in the District Court at Nanded, joined judicial service on 06.06.1988 and was promoted to his current post on 01.06.2011. After completing 30 years of service, he submitted a notice of voluntary retirement on 01.08.2018, intending to retire on 31.10.2018 after office hours. The notice was accepted by the appointing authority on 28.09.2018. However, upon resolution of his family problems, the petitioner sought to withdraw his retirement notice on 31.10.2018 at 10:30 a.m., before his retirement became effective.

Key Facts

• The petitioner joined service on 06.06.1988 pursuant to District Court Office Order No. 4728/1988
• Promoted as Senior Clerk on 01.06.2011 vide Office Order dated 26.05.2011
• Submitted voluntary retirement notice on 01.08.2018 with intended retirement date of 31.10.2018
• Notice accepted on 28.09.2018 via Office Order No. 7332/2018
• Submitted withdrawal request on 31.10.2018 at 10:30 a.m.
• Withdrawal request rejected on 31.10.2018 at 5:30 p.m. under Rule 65(3) of MCS (Pension) Rules, 1982
• Petitioner continued in service till retirement became effective after office hours on 31.10.2018
• Received pension and all retiral benefits post-retirement

Procedural History

• 31.10.2018: Petitioner’s withdrawal request rejected by Principal District Judge, Nanded
• 27.02.2020: Writ Petition (WP No. 3635/2020) filed before Bombay High Court, Aurangabad Bench
• 06.05.2026: Judgment reserved
• 06.07.2026: Judgment pronounced

Relief Sought

The petitioner sought:

• Quashing of the order dated 31.10.2018 rejecting his withdrawal request
• Continuation in service with all consequential benefits
• Payment of salary arrears from 01.11.2018 till the date of superannuation, adjusted against pension received

The Legal Issue

The central questions before the Court were:

1. Whether the term intended date in Rule 65(3) of MCS (Pension) Rules, 1982 permits withdrawal of a voluntary retirement notice on the intended date itself, or whether prior approval is mandatory before such date?
2. Whether the petitioner is entitled to reinstatement and back wages upon valid withdrawal of his retirement notice?

Arguments Presented

For the Petitioner

• The impugned order rejecting the withdrawal request is arbitrary, illegal, and contrary to Rule 66 of MCS (Pension) Rules, 1982
• The request was made before the retirement became effective, and no administrative inconvenience was caused
• No opportunity of hearing was granted before rejection
• Discriminatory treatment: In similar cases, withdrawal requests were permitted on the last date
• Relied on judgments:
  • Balram Gupta v. Union of India (1987 AIR 2354)
  • J.N. Srivastava v. Union of India (AIR 1999 SC 1571)
  • Chandrakant B. Phatale v. District Judge & Ors. (2008 Supp. Bom. C.R. 81)
  • Poonam Garg v. IFCI Venture Capital Funds Ltd. (WP(C) 9304/2019)

For the Respondents

• The petitioner’s case was governed by Rule 65, not Rule 66, as he had completed 30 years of qualifying service
• Rule 65(3) mandates that withdrawal of voluntary retirement notice requires specific approval and must be made before the intended date of retirement
• The petitioner’s withdrawal request was made on the intended date (31.10.2018), which was beyond the permissible period under Rule 65(3)
• Rule 13 defines a day as the period from one midnight to the next, implying the request should have been made on or before 30.10.2018
• No administrative inconvenience would arise from rejecting the request

The Court's Analysis

The Court undertook a detailed examination of Rule 65 of MCS (Pension) Rules, 1982, its proviso, and judicial precedents to resolve the dispute:

Interpretation of Rule 65

"A careful reading of the aforesaid rule would show that after completion of 30 years of service, a Government Employee can apply for voluntary retirement from service by giving three months’ notice to the appointing authority. Clause (b) of Rule 65 clearly mandates that notice of voluntary retirement given under clause (a) shall require acceptance by the appointing authority. If the appointing authority does not refuse to grant the permission to the voluntary retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said notice period."

The Court noted that Rule 65(3) precludes withdrawal of a voluntary retirement notice except with specific approval of the appointing authority, provided the request is made before the intended date of retirement. However, the Court emphasized that prior approval cannot be an ipse dixit of the appointing authority and must be based on good and valid reasons.

Judicial Precedents

1. Balram Gupta v. Union of India: The Supreme Court held that a government servant can withdraw a voluntary retirement notice before it becomes effective, even if the rules require specific approval. The appointing authority cannot refuse approval without showing administrative inconvenience.

2. J.N. Srivastava v. Union of India: The Supreme Court reiterated that an employee has the locus poenitentiae (right to change mind) to withdraw a voluntary retirement notice before the retirement date, and is entitled to reinstatement with all benefits.

3. Arun v. District and Sessions Judge & Ors.: The Bombay High Court upheld the validity of Rule 66(5), which is pari materia to Rule 65(3), but clarified that the appointing authority must state good and valid reasons for rejecting a withdrawal request.

4. State of Himachal Pradesh v. Himachal Techno Engineers: The Supreme Court interpreted the term three months in statutory provisions, holding that the period expires on the corresponding date in the third month, not after 90 days.

Application to the Present Case

The Court observed that the petitioner’s intended date of retirement was 01.11.2018, as the three-month notice period commenced on 01.08.2018 and ended on 01.11.2018. Though the petitioner mentioned 31.10.2018 as his intended retirement date in his notice, this did not preclude him from withdrawing his notice on 31.10.2018, as his retirement would have become effective after office hours on that date.

The Court held:

"It was open for the petitioner to make request for withdrawing his notice of voluntary retirement before the effective date of retirement. [...] Though, in his voluntary retirement application dated 01.08.2018, the petitioner has mentioned that he intends to retire after office hours on 31.10.2018, mentioning intended date as 31.10.2018 will not preclude the petitioner from withdrawing the application on 31.10.2018. Considering this, the appointing authority ought not to have refused the application of voluntary retirement on the ground that the application was given on intended date i.e. which should have been given prior to 31.10.2018."

The Court concluded that the impugned order was arbitrary and violated the principles of natural justice, as no opportunity of hearing was granted, and no administrative inconvenience was demonstrated.

The Verdict

The Bombay High Court allowed the writ petition and passed the following orders:

1. Set aside the order dated 31.10.2018 rejecting the petitioner’s withdrawal request
2. Directed payment of salary arrears to the petitioner, as if he was in service till the date of superannuation, after deducting the pension amount already paid
3. Ordered refixation of pension and payment of all consequential benefits within 12 weeks from the date of receipt of the judgment copy
4. Rule made absolute in the above terms

What This Means For Similar Cases

Withdrawal of Voluntary Retirement Notice: Timelines and Approval

• Intended Date vs. Effective Date: The intended date of retirement is the date on which the three-month notice period expires, while the effective date is when the retirement actually takes effect (e.g., after office hours on the intended date). A government servant can withdraw the notice on the intended date itself before the retirement becomes effective.
• Prior Approval Not Mandatory: The appointing authority cannot arbitrarily reject a withdrawal request. Rejection must be based on good and valid reasons, such as administrative inconvenience.
• Rule 65(3) Interpretation: The proviso to Rule 65(3) mandates that the withdrawal request must be made before the intended date, but this does not require prior approval if the request is made before the retirement becomes effective.

Reinstatement and Back Wages: Limitations

• Laches and Acquiescence: Employees who accept pension benefits and delay approaching the court (e.g., 16 months in this case) may not be entitled to full reinstatement but can claim salary arrears for the period they would have served.
• Consequential Benefits: Courts may direct refixation of pension and payment of arrears with interest, but reinstatement is subject to factual circumstances and delay in seeking relief.

Practical Takeaways for Practitioners

• Drafting Withdrawal Requests: Ensure withdrawal requests are submitted well before the intended date to avoid disputes over timelines. If submitted on the intended date, emphasize that the retirement has not yet become effective.
• Challenging Rejection Orders: Argue that arbitrary rejection violates Article 14 of the Constitution and that the appointing authority must state reasons for denial.
• Citing Precedents: Rely on Balram Gupta and J.N. Srivastava to establish the right to withdraw before the retirement becomes effective.
• Calculating Notice Periods: Use the calendar month method under Rule 2(34) of MCS (Pension) Rules, 1982, to determine the intended date of retirement.
• Claiming Arrears: If reinstatement is not feasible due to delay or acceptance of benefits, seek salary arrears for the period between the intended retirement date and superannuation.