New Delhi, May 26 The Supreme Court on Tuesday set aside an order of the Ministry of Home Affairs which rejected the request of Voluntary Retirement from Service (VRS) of a 1997 batch Maharashtra cadre IPS officer as he was facing disciplinary proceedings for participating in protests against the Citizenship (Amendment) Act in 2019 and in two other complaints.
A bench of Justices PS Narasimha and Alok Aradhe held that the Centre has the power to independently accept the VRS application under the All India Service (Death-cum-Retirement Benefits) Rules of 1958, but it was not unconstrained and is qualified. It said the Union government must examine the request of officer Abdur Rahman for VRS afresh, and a decision must be taken within three days.
On April 24, 2022, a chargesheet was issued to Rahman for major penalty in relation to alleged misconduct of not attending to duties on and from December 12, 2019 after filing a plea in the Central Administrative Tribunal and without interim relief by the CAT; and for registering protest against the enactment of the Citizenship (Amendment) Act, 2019 on social media as well as physically participating in protests
He was also faulted him for registering protest against police action on social media and publishing information on tendering for voluntary retirement on social media.
The state government had on October 16, 2019, considered Rahman's application for VRS and recommended that his VRS notice be accepted by the central government.
However, on October 25, 2019, the Centre rejected the application on the grounds that disciplinary proceedings were still pending against him.
"The voluntary severance of employee-employer relationship pursuant to a VRS notice requires the central government's acceptance and it would also require a considered decision of the central government. It would be incongruous to suggest that this VRS could take effect without any genuine and well-considered exercise of discretion by the central government," the top court said.
It further said the scheme of the extant rules governing the All-India Services consistently treats the central government as the repository of ultimate authority over career-terminating decisions concerning IPS officers, and ‘acceptance’ of VRS must be consistently read with that scheme.
"To this extent, we hold that the central government has the last word when deciding a request for VRS under Rule 16(2A) of the 1958 Rules and in doing so, it is not bound by the recommendation of the state government," the bench held.
But at the same time, the state government's opinion does carry weight owing to the fact that it is the authority with direct supervisory knowledge of the officer and under whose authority any disciplinary proceedings are to be conducted, it said.
The top court said the October 25, 2019, decision of the central government rejecting the application for VRS of Rahman on the grounds that he was not clear from a vigilance angle suffers from non-application of mind.
It said a comprehensive view of the complaints against the officer existing as on the relevant date would indicate that out of the three complaints, only Complaint III ( related to CA protests) can validly be said to be in contemplation of the disciplinary authority at that time.
"Under these circumstances, the decision and order of the central government in rejecting the notice for voluntary retirement on the ground that the appellant was not clear from a vigilance angle suffers from non-application of mind.
"Further, the central government did not engage with the state government's opinion in its letter dated October 16, 2019 and the material considered therein, so as to justify the departure from the recommendation to permit the appellant to voluntarily retire from service," the top court said,
It held that the issue relating to acceptance or rejection of the appellant's VRS notice necessarily requires a thorough reconsideration.
The bench said the power of the central government in acceptance or rejection of VRS was not unconstrained and is qualified, and the exercise of discretion by the Union under proviso to Rule 16(2A) is guided by Guideline 3(ii) of the DoPT Guidelines.
"Incorporation of discretion in the rule is deliberate and intended to guide the exercise of power. When disciplinary proceedings are pending or contemplated against a member of the service for imposition of a major penalty, the request for VRS 'may not ordinarily be accepted'.
"Phrasing of the guideline accords the central government the vital discretion to apply its mind on a case-by-case basis and in a given case it may accept the notice of the officer for VRS despite the possibility of imposition of a major penalty," it said.
It added that the Centre cannot form an opinion which is not supported by material on record.
"Though not bound by the recommendation of the state government, its opinion does carry weight and persuasive value owing to the fact that it is the authority with direct supervisory knowledge of the officer serving in connection with affairs of that State and under whose authority any disciplinary proceedings are to be conducted," it said.
The exercise of discretionary power in accepting or rejecting a request for VRS cannot be without engagement with views expressed by the state government.
The top court noted that there were three complaints against Rahman with first being filed on July 22, 2014, in which Tukaram Bhimrao Jadhav filed a complaint against him for torturing his wife.
On March 29, 2019, Rahman gave a speech at the launch event of his book titled "Denial and Deprivation", and an enquiry was initiated against him for violation of service rules.
The state government on October 16, 2019, considered Rahman's application for VRS and recommended that his VRS notice be accepted by the central government.
However, on October 25, 2019, the Centre rejected the application on the grounds that disciplinary proceedings were still pending against him.
