1. Heard Sri Vinod Kumar Singh, learned counsel for the petitioners, Sri P.K. Sinha, learned counsel for the respondent nos.1 and 2 and learned Standing Counsel for respondent no.3.
2. By means of the present writ petition, the petitioners are challenging the orders dated 8.8.2012 and 21.1.2012 whereby voluntary retirement scheme (hereinafter referred to as 'VRS') applied by wife of petitioner no.1/1 namely Smt. Madhuri (now dead) was accepted without considering the application for withdrawal of proposal of VRS with further prayer to issue a writ in the nature of Mandamus directing respondents to consider ten years' period i.e. from 1986 to 1996 rendered as temporary employee and treat the deceased employee in employment and to pay regular salary to her.
3. Facts of the case are that wife of petitioner no.1/1 namely Smt. Madhuri (now dead) was granted appointment on permanent post of Clerk/ Typist at Gorakhpur Unit of U.P. State Sugar Corporation on temporary basis on 2.5.1986. Subsequently, she was granted appointment as permanent employee to the post of Assistant on 19.10.1996 in the pay-scale of Rs.1025-25-1150-30-1720. On 30.7.2008, she moved an application to make correction in the seniority taking into account the temporary services rendered by her. Further representation was filed in this regard on 31.7.2009. The Board of Directors framed a scheme of VRS on 14.11.2011 due to crisis existed in running sugar factory. Deceased employee applied for VRS on 29.12.2011. Thereafter, she moved an application on 24/25-5-2012 for withdrawal of her application for VRS. Without taking notice the application for withdrawal of proposal of VRS, impugned order dated 8.8.2012 has been passed whereby she has been retired from service voluntarily. Feeling aggrieved, a representation was filed before respondent-Department pointing out that in spite of receipt of application for withdrawal of the application for VRS, her claim was not considered and thereafter, a writ petition was filed which was numbered as Writ Petition No.9281 of 2011 wherein direction was issued to consider her claim and to pass appropriate order while granting time to file counter affidavit and rejoinder affidavit. It was also provided that she may make a fresh representation before respondent no.2 of that writ petition with the direction to consider and dispose of the same by way of speaking and reasoned order in accordance with law within four weeks thereafter. In pursuance to the order passed by this Court, the order dated 21.1.2012 was passed which is also impugned in the writ petition.
4. Learned counsel for the petitioner submits that certain employees of the respondent-Department also applied for VRS and at subsequent point of time, they moved an application for withdrawal of application filed for VRS; their claim was considered; and the applications were withdrawn. He has invited attention of this Court towards paragraph 2 of the supplementary affidavit filed on 6.8.2015 and also Annexure SA1 at page 4 in support of his submission.
5. He next submits that the proforma on which applications were invited is contrary to the Rules applicable to the sugar factory, therefore proforma as annexed at page 4 of the amended petition being not in consonance with the provisions under the Rules, the application should be treated to be non-est.
6. Learned counsel for the petitioner pointed out that during the pendency of the writ petition, Smt. Madhuri died on 18.1.2018 and till date, no payment whatsoever has been made. Now, heirs of the petitioner namely Ramasrey, Ashashwi Ratan, Yashkeerti Ratan and Yashraj Ratan have been substituted in the writ petition.
7. This Court while hearing the matter and perusing the record produced by Sri P.K. Sinha, learned counsel for respondent nos.1 and 2 has passed an order on 27.3.2019 which reads as under:
"1. Original records have been produced by Sri P.K. Sinha, learned counsel appearing on behalf of the respondents.
2. A perusal of the same indicate that a letter of withdrawal of voluntarily retirement dated 24.05.2012 sent by the petitioner under the registered post finds place in the records of the respondents at serial no.242. The DAK Receipt Register has also been produced wherein the letter of the petitioner dated 24.05.2012 has been placed at serial no.349 having been received in the office on 28/5/(2012).
3. It appears that the letter was also opened inasmuch as "Ref. VRS vkosnu i= [email protected] okil djus ds laca/k esa**.
Thus, it is apparent that the letter seeking withdrawal of the voluntarily retirement by the petitioner sent through registered post dated 24.05.2012 has been served in the office of the respondents on 28.05.2012.
4. The original records after being perused have been returned to Sri P.K. Sinha, learned counsel appearing on behalf of the respondents.
5. Learned counsel for the contesting parties point out that the pleadings have been completed.
6. Accordingly, list this case after four weeks for final hearing.
7. Records need not be produced again unless specificallly called for."
8. On the basis of the said order, submission of learned counsel for petitioners is that once on perusal of record produced it was found that the application was moved for withdrawal of VRS, non-consideration by passing the impugned order is per se illegal and the order is not sustainable in law.
9. On the other hand, Sri P.K. Sinha, learned counsel for the respondents-Department has inviteed attention of this Court on the proforma of application for VRS and submits that it is an agreement between the parties which was duly signed by deceased employee, therefore, the same could not be withdrawn. He further submits that the application for withdrawal of VRS application was duly considered and on the basis of agreement entered at page 45 of the amended petition, the claim of withdrawal of VRS was not taken into consideration.
10. He next submits that the impugned orders do not suffer from any infirmity or illegality and are just and valid order. The claim of the deceased employee was duly considered and upon consideration of the claim, her application for VRS was accepted and the Department upon calculation of benefits of VRS tried to ensure payment to her, but the same was not accepted.
11. He in response to the submission advanced on the point of consideration of withdrawal application submits that the Department considered and permitted re-employment in sugar factory in separate Unit of Muhiuddinpur on certain basis.
12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
13. On its perusal, it is evident that the deceased employee applied for VRS vide application dated 29.12.2011 which is at page 4 of the amended writ petition and before acceptance of the VRS, she moved an application on 24/25-5-2012 for withdrawal of the application dated 29.12.2011 which is evident by bare perusal of the order passed by this Court on 27.3.2019 wherein record produced by the Department was taken into consideration and on its perusal it was found that the application for withdrawal of VRS application was present on record at serial no.241 and DAK receipt registered at serial no.349. Once it is established on perusal of the record that the application for withdrawal of VRS application was lying pending consideration before its acceptance, it was incumbent upon respondents to consider the application and then to pass the order.
14. On perusal of the impugned orders, it is reflected that there is no consideration in passing the impugned orders on the withdrawal her application, which has been noticed by this Court in the order dated 27.3.2019. Non-consideration of withdrawal application vitiates impugned orders, thus the impugned orders cannot be sustained. It is also evident that the statement of fact made in paragraph 2 of the supplementary affidavit supported by Annexure SA1 was replied in paragraph 10 of the supplementary affidavit dated 14.8.2015 which is being quoted below:
"10. That, so far as the matter of revocation of VRS after its acceptance by the Corporation regarding S/Sri Rajendra Mishra, R.K. Sengar, R.K. Shukla and Smt. Sarswati is concerned, it is submitted that in view of the fact that the State Government undertook a decision to run the Mohiuddinpur unit of the Corporation, the Corporation took a decision to cancel the acceptance of VRS of few employees so that dire need of experenced staff at Mohiuddinpur may be metted. However, it was an executive managerial decision, looking to the exigency of the circumstances, due to the direction of the State Government to run the Mohiuddinpur unit. The petitioner's case is altogether different as her VRS was accepted on 08.08.2012 and thereafter she is not alleging that she has prayed for cancellation of the accepted VRS offer. As a matter of fact, in the entire petition, by way of amendment, she has brought this new fact much belatedly regarding revocation of the offer for VRS as early as on 24.05.2012."
15. On perusal of the original record produced before this Court, it was found that letter of withdrawal of voluntarily retirement dated 24.5.2012 has been placed at serial no.349 having received in the office on 28.5.2012 much prior to the acceptance of VRS on 8.8.2012. This clearly demonstrates that the respondents have deliberately not considered the application of the petitioner and proceeded to pass the impugned orders. Thus, due to non-consideration of application of the petitioner the impugned orders vitiate in law and cannot be sustained.
16. In regard to contention of Sri P.K. Sinha, learned counsel for the respondents that the application of VRS is an agreement, I have perused the application. It is prescribed proforma to apply for VRS and before its acceptance, the application cannot be termed to be agreement between the parties. In case the application would have been accepted prior to submission of application for withdrawal then the agreement would have been completed. In the present case, the petitioner moved an application on 24.5.2012 and the fact in this regard is not disputed. Agreement comes into play when offer is accepted. In the present case, the application for VRS was accepted on 8.8.2012, therefore, submission of learned counsel for the respondents that it is an agreement, is not acceptable.
17. It is not disputed that certain employees were given consideration for withdrawal of VRS, therefore, the claim of the deceased employee for grant of parity on consideration of her claim for withdrawal of the application has been made out.
18. I have also perused the impugned orders dated 8.8.2012 and 21.1.2012 which reflect that the application filed by the deceased employee was not taken into consideration while deciding the claim of VRS. Due to non-consideration of her application for withdrawal, the impugned orders suffer from apparent illegality and is liable to be quashed.
19. The petitioner died during pendency of the present writ petition, therefore direction to consider the application for withdrawal of VRS will not serve the purpose. Accordingly, the petitioner is entitled for all the benefits as admissible to the post of Clerk since the date she was restrained to discharge her duties.
20. On overall consideration and in view of observations made above, impugned orders dated 8.8.2012 and 21.1.2012 are quashed. Accordingly, the writ petition is allowed.
21. It is however directed to the respondents to release all consequential benefits of the petitioner and ensure payment of the same within two months from the date of production of a certified copy of this order.