Judgment:
ORDER
1. The petitioner challenges a communication sent by the first respondent to the petitioner instructing him to issue notice to the Government for orders on his request for voluntary retirement since the earlier notice sent by the petitioner was not a notice sent by the petitioner was not a notice in terms of Fundamental Rule 56(3)(a).
2. The facts relating to the filing of the writ petition are : The petitioner was appointed as Lower Division Clerk on February 16, 1957 by the first respondent-Corporation. He was promoted as Upper Division Clerk/Licence Inspector on August 13, 1959, as Assessor on January 4, 1967 and as Assistant Revenue Officer on May 30, 1979, as Additional Revenue Officer on October 5, 1989 and as Circle Officer on February 1, 1990. The petitioner was promoted as Revenue Officer on June 1, 1990. The normal date of superannuation for the petitioner will be November 2, 1992 since he was born on November 2, 1934. However, the petitioner is entitled to hold office till November 30, 1992 in terms of existing rules. It seems due to deterioration of his health the petitioner issued a notice of voluntary retirement on January 31, 1992 addressed to the first respondent-Commissioner and requested that he may be permitted to retire voluntarily on May 1, 1992. The first respondent in turn informed the petitioner on March 18, 1992 that the three month's period will expire on June 1, 1992. However, it seems the first respondent by letter dated May 13, 1992 intimated the petitioner that his request for voluntary retirement cannot be forwarded to the State Government as revision of property tax for under-assessment of commercial properties has been entrusted to him, that he has to attend to the revision of profession tax and that a suitable decision will be taken on completion of reassessment of tax for commercial properties and revision of profession tax. It seems the petitioner made representations to the second respondent on June 2, 1992 as against the communication received from the first respondent while pointing out the action of the first respondent is contrary to the statutory provision of F.R. 56 as the petitioner could be deemed to have retired on June 1, 1992 A.N. It is stated that the petitioner requested the third respondent to issue suitable directions for settlement of his terminal benefits. It is stated in the affidavit that the petitioner has already been informed that he is deemed to have retired from June 1, 1992 A.N. in terms of F.R. 56 and factually from June 2, 1992 he stopped attending office and requested the first respondent to settle his terminal benefits. While the matter stood thus, the impugned memorandum dated July 6, 1992 was issued to the petitioner. It is alleged in the affidavit that in terms of F.R. and statutory rules which govern the Madras City Municipal Corporation Employees, he is deemed to have been retired on June 1, 1992 as no communication has been sent by any of the respondents before June 1, 1992 rejecting his request or for any other reason as provided in the Fundamental Rules. The petitioner alleges that as he is having health problem apart from family problems submitted his resignation and sought for voluntary retirement by issuing three months' notice in terms of Fundamental Rules and in the absence if any communication, the petitioner is deemed to have retired on June 1, 1992 A.N. It is stated that the impugned communication dated July 2, 1992 of the second respondent has not been furnished to the petitioner and it has been addressed to the first respondent. As such the petitioner is challenging the communication dated July 6, 1992.
3. The petitioner alleges in the affidavit that the impugned proceedings of the respondents is illegal and arbitrary. It is also alleged that the first respondent had received the notice under F.R. 56(d)(i) intimating the petitioner that the notice period is to be reckoned from March 2, 1992 and accepted that the notice issued by the petitioner is in conformity with Rule 56(d)(i) and also forwarded the same to the second respondent. It is alleged that the second respondent kept the application pending till July 2, 1992 and hence the respondent are estopped from passing the impugned orders when, in terms of F.R. 56 (d)(i) on the expiry of 3 months' period, it is not open after the expiry of 3 months to raise untenable objection. It is alleged that the actions of the respondents are arbitrary and vitiated by legal malice. It is also alleged that the petitioner was appointed by the orders of the Commissioner, in the cadre of Revenue Officer, Class IA post and which appointment has been ratified by the second respondent on a later date and as such the Commissioner, Corporation of Madras, is the appropriate authority with respect to the petitioner as well as to be appointed to the post of Revenue Officer to whom the notice under F.R. 56 has to be sent. It is also alleged that the entire Corporation establishment including Class 1A officers is under the control of the Commissioner and merely because the State Government is the confirming authority, it cannot be assumed that the State Government is the appointing authority in respect of Class 1A posts. As such the petitioner alleges that the notice of voluntary retirement has been duly given by the petitioner addressed to the appropriate authority in terms of F.R. 56(d)(i) on giving three months' notice in writing to the appropriate authority, the respondents have no authority to deny or stop the voluntary retirement except in cases which fall under Explanation to F.R. 56(d)(i) for which specific permission of the appropriate authority (sic) may withhold the permission sought for. It is alleged that the impugned proceedings are vitiated by legal malice and it offends Art. 14 of the Constitution. At any rate, it is alleged, after the expiry of the notice period on or before June 2, 1992 the petitioner ceased to be Revenue Officer of Madras Corporation and the respondents 1 and 2 have neither the authority nor the jurisdiction to pass the impugned order as the notice of voluntary retirement has taken effect from June 1, 1992 and the petitioner ceased to attend office on June 2, 1992. The petitioner alleges that in view of the impugned proceedings, the respondents have not taken any action to settle the terminal benefits to the petitioner.
4. I have heard Mr. E. Padmanabhan, learned counsel for the petitioner in extenso and have gone through the affidavit filed in support of the writ petition. Learned counsel contends that the petitioner having been appointed by the Commissioner of Corporation of Madras, thee petitioner has rightly given the notice under F.R. 56(d)(i) with regard to the voluntary retirement. According to learned counsel, that notice is enough and it is not necessary that the petitioner should give notice to the Government, the second respondent herein. Learned counsel refers me to Section 85 of the Madras City Municipal Corporation Act, 1919, hereinafter referred to as the Act. The petitioner contends that the petitioner was appointed by the Commissioner and the order of appointment was issued by him on June 2, 1990 and as such the petitioner has given the notice rightly to the appointing authority as envisaged by F.R. 56. According to learned counsel, after referring to F.R. 56(d)(i), points out that the notice has to be sent to the appropriate authority and according to Explanation I to that rule, 'appropriate authority' means the authority which has the power to make the substantive appointment to the post or service from which the Government servant is required to retire. So, the sum and substance of the argument of the learned counsel is that when once the petitioner has issued notice of retirement to the Commissioner, in effect, the petitioner had retired on June 1, 1992. Learned counsel further draws assistance from a decision of the Supreme Court reported in Scientific Adviser to the Ministry of Defence v. S. Daniel, : (1990)IILLJ295SC .
5. I have considered the arguments of the learned counsel for the petitioner very carefully.
6. The short point that arises for consideration in this case is :
Whether the petitioner had sent the notice for voluntary retirement to the correct authority in terms of F.R. 56
7. To appreciate the arguments of the learned counsel for the petitioner it is necessary to refer to the relevant statutory provisions. Chapter IV which occurs in the Act talks of general powers of Municipal Authorities as to property, contracts and establishment. Section 85 is concerned with the 'establishment'. Under Section 85, the post of the Revenue Officer comes under Class IA posts. Under sub-section (2), Class 1A and Class 1B officers shall be heads of departments working under the Commissioner. Under sub-section 3(a) every appointment to any post included in Class 1A shall be made by the State Government. Under Section 86 conditions of service of Corporation establishment is provided for. Section 86(1)(i) talks of Class 1A officers and they are governed by the rules of the State Government in this behalf with regard to classification, methods of recruitment, conditions of service, pay and allowances etc. It is true under Section 91 of the Act the Commissioner controls Corporation establishment. Under the Fundamental Rules, Chapter IX provides for retirement. F.R. 56(d)(i) reads as follows :
'Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, at any time after he has attained the age of fifty years or fifty-five years in the case of Basic Servant, as the case may be, or after he has completed thirty years of qualifying service. Any Government servant who has attained the age of fifty years of qualifying service may likewise retire from service by giving notice of not less than three months in writing to the appropriate authority.'
Explanations I and II to the above said Rule so far as it is necessary for the purpose of the case are extracted hereunder :
'Explanation I - 'Appropriate authority' means the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire or (wants to retire).
Explanation II - In computing the notice period of three months, the date of service of the notice shall be included.'
Explanation IV reads as follows :
'The powers conferred on the 'appropriate authority' under this sub-rule may also be exercised by any higher authority'
8. In this case, it is not in dispute that the notice was given by the petitioner to the Commissioner of Corporation of Madras-the 1st respondent herein-on January 31, 1992. The petitioner wanted that he may be permitted to retire voluntarily with effect from May 1, 1992. It seems the letter was received by the first respondent on March 2, 1992 and the petitioner has been stated by the letter dated March 18, 1992 by the first respondent that three months' period will expire on June 1, 1992 A.N. However, before June 1, 1992, on May 13, 1992 the petitioner has been informed that his request for voluntary retirement cannot be forwarded to Government for orders and that a suitable decision will be taken on completion of reassessment of tax for commercial properties and revision of profession tax. As such it is seen that even before June 1, 1992 the date which was given by the first respondent in the letter dated March 18, 1992 a letter has been written to the Revenue Officer, Corporation of Madras to the effect that the letter of the petitioner cannot be forwarded. However, on June 2, 1992 the petitioner writes to the Government stating that he is deemed to have been retired from service at the end of the period of notice i.e., June 1, 1992. However, F.R. 56(e)(iv) reads as follows :
'The Government servant shall be deemed to have been retired from service at the end of the period of notice issued under Clause (i), unless the appointing authority or an authority superior to the appointing authority issues an order to the contrary before the expiry of the period of notice.'
On the facts of this case it is seen that the petitioner has sent the notice only to the Commissioner of Corporation, who is not the appointing authority. From a reading of S. 85 it is clearly seen that the Government alone is the appointing authority. I am not able to accept the argument of Mr. E. Padmanabhan that the term 'appropriate authority' which is found in Explanation 1 to F.R. 56(d)(i) can be taken as Commissioner. This is clear if a contrast is made between F.R. 56(d)(i) and F.R. 56(e)(i). When the rule-making authority has given an inclusive definition of 'appointing authority' in Explanation II to F.R. 56(e)(i), it is not so found in F.R. 56(d)(i). So, in my view, the 'appropriate authority', who has got the power to make substantive appointment, in this case i.e., with regard to Class 1-A officers, is only the Government under S. 85 of the Act. So, when the petitioner has not issued the notice to the appropriate authority, I do not think the notice has any effect at all. The three months' notice has to be notice from the date of receipt of the notice to the Government under F.R. 56(d)(i) and the Explanation II to sub-rule. In my view, sub-rule (iv) of F.R. 56(e) is not applicable to the facts of this case, because the notice has not been accepted by the appointing authority-in this case the Government. The acceptance of the earlier notice by the Commissioner, in my view, cannot help the petitioner, because, the Commissioner has done so without jurisdiction. The petitioner cannot rely upon an order or communication sent by the Commissioner without jurisdiction. That is the communication sent on March 18, 1992. Factually, the petitioner himself has stated in his letter addressed to the Government that the Commissioner has informed the petitioner on May 13, 1992 that the request for voluntary retirement cannot be forwarded to the Government for orders. That means virtually the Commissioner has withdrawn the earlier letter sent on March 18, 1992 assuming that the power vests with the Commissioner before June 1, 1992. So if the petitioner relies upon the letter of the Commissioner dated March 18, 1992, it has been withdrawn by the Commissioner himself on May 13, 1992 before June 1, 1992, the date on which the period of notice has to expire. Even otherwise the Commissioner has no jurisdiction at all to issue the letter dated March 18, 1992 as it is not in conformity with Rule F.R. 56(d)(i) read with S. 85 of the Act. I do not think the decision relied on by the learned counsel for the petitioner in Scientific Adviser to the Ministry of Defence v. S. Daniel, (supra) will apply to the facts of this case. The question before the Apex Court of the land was with regard to the taking of disciplinary action and while deciding it, the Supreme Court came to the conclusion that if a power is delegated to make an appointment to the lower authority and that if the delegated authority actually makes the appointment, such authority would be the authority competent to initiate disciplinary proceedings as well as under the Rules, Central Civil Services (CCA) Rules, 1965. In this case no question of delegation arises. S. 85 of the Act is very clear on that aspect. For Class 1-A officers the appointing authority is only the State Government under sub-section (3) of S. 85. The petitioner himself was appointed of June 2, 1990 by the Commissioner as Revenue Officer only subject to approval or ratification of the Government. The approval was confirmed and the temporary appointment was ratified by the Government by letter dated January 31, 1992. In fact, on October 4, 1991 the Government has informed the Commissioner that such appointments should not be made in future without prior approval of the Government in G.O. Ms. 3 (d) No. 48, M.A. and W.S. Department, date October 4, 1991. There is no dispute also that Fundamental Rules will be applicable to Madras Corporation Officers under Madras Corporation Officers' Service Rules, 1973, especially Rule 3 of those Rules. In so far as there is no rule with regard to the compulsory retirement in the Madras Corporation Officer's Rules, 1973, Fundamental Rules are applicable. As I have already stated, if the question raised by the petitioner is looked at from any angle, the petitioner has no case at all. In my view, as rightly pointed out by the impugned memorandum, the petitioner has to give notice to the Government in consonance with F.R. 56 and no question of 'deemed retirement' arises as contended by the petitioner. There are no merits in the writ petition and accordingly this was petition is dismissed.