2026 INSC 550

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

ARISING OUT OF SLP (C) NO. 21390 OF 2024

ABDUR RAHMAN ...APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. …RESPONDENT(S)

J U D G M E N T

1. Leave granted.

2. The present appeal has been filed against the judgment of the High

Court

1

confirming the order of the Central Administrative Tribunal

2

upholding

Central Government’s rejection of the appellant's request for Voluntary

Retirement from Service (“VRS”).

I. Facts

3. The appellant is an Indian Police Service (“IPS”) officer belonging to

the 1997 Batch, Maharashtra cadre. On 22.07.2014, one Tukaram Bhimrao

Jadhav filed a complaint (Complaint I) against the appellant for torturing the

1

Dated 23.07.2024 in Civil Writ Petition No. 1018/2024.

2

Dated 07.12.2023 in Original Application No. 758/2019.

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complainant’s wife. On 28.04.2016, the appellant’s father-in-law filed a

complaint (Complaint II) against him for allegedly contracting a second

marriage without consent of first wife and for torturing his first wife and son.

On 29.03.2019, the appellant gave a speech at the launch event of his book

titled “Denial and Deprivation”, and an enquiry was initiated against him for

violation of Rules 6 and 7 of the All India Service (Conduct) Rules 1968

(“Conduct Rules”) (Complaint III). It is in this background that he tendered a

notice dated 01.08.2019 for VRS under Rule 16(2A) of the All India Service

(Death-cum-Retirement Benefits) Rules, 1958 (“1958 Rules”).

4. It is also necessary to indicate that he had made two such VRS

applications prior to the present application. The first application was

withdrawn by him to seek remedies for promotional avenues before the

Central Administrative Tribunal (“CAT”), while the second application was

rejected by the Ministry of Home Affairs (“MoHA”) on the ground that the

appellant was not clear from vigilance angle as there were disciplinary

proceedings pending against him for violations under the Right to Information

Act, 2005. It is only after the closure of those disciplinary proceedings under

the RTI Act, that the appellant filed the present application for VRS dated

01.08.2019.

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5. On 16.10.2019, the State Government considered his application, and

upon its satisfaction that none of the three complaints pending against the

appellant at that time, as mentioned earlier, would likely result in a major

penalty, recommended that the appellant’s VRS notice be accepted by the

Central Government. The relevant portion of the recommendation is

extracted for ready reference –

“After observing & scrutinizing the above 3 cases, it seen that the

Charge Sheet is not issued in any case & disciplinary proceedings are

only contemplated. Also it seems to be no major penalty will be

imposed on the Officer in all above cases.

Hence as per the guidelines issued by DOPT about provisions for

DCRB rule, 1985 rule 16(2a), the notice of voluntary retirement given

by Shri. Abdur Rahman, IPS, may be accepted.”

6. However, on 25.10.2019, and this is where the crux of the dispute lies,

the Central Government came to the conclusion that there are still

disciplinary proceedings “pending or being contemplated” against the

appellant, and as such, his notice seeking VRS was rejected. The relevant

portion of the Central Government’s rejection letter is extracted hereinbelow-

“2. In this connection, it is stated that earlier the State

Government had also forwarded voluntary retirement request

submitted by the said MoS to this Ministry, which has not

acceded to on the ground that the MoS was not clear from

vigilance angle and di sciplinary proceedings were

pending/contemplated against him. Now the disciplinary

proceedings against the MoS, as reported by the State

Government are pending or being contemplated. Accordingly, he

is not clear from the vigilance angle.

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3. In view of the above, after having considering the matter, the

competent authority has not acceded to the request of voluntary

retirement of the MoS.”

7. Aggrieved by the rejection, the appellant filed an Original Application

(OA) at the CAT on 06.11.2019 with the following prayers –

“a) This Hon'ble Tribunal may be pleased to call for the record of

the case which led to the passing of the impugned Order dated

25.10.2019 i.e. Annexure “A1” and after going through its

propriety, legality and constitutional validity be pleased to quash

and set aside the same.

(b) This Hon'ble Tribunal may be pleased to hold and declare that

the Applicant stood effectively retired w.e.f. 31.10.2019 or on any

other relevant date and accordingly direct the Respondents to

release all the retiral dues to the Applicant forthwith.

(c) Any other and further orders as this Hon'ble Tribunal may

deem fit, proper and necessary in the f acts and circumstances of

the case.

(d) Costs of this Original Application may be provided for.”

8. Meanwhile, the complaints and enquiry initiated against the appellant

culminated into chargesheets issued by the State Government on

17.06.2020, 06.10.2020 and 24.04.2022. Relevant details of said

chargesheets are as follows:

(i) Chargesheet I dated 17.06.2020 – Issued for major penalty in

relation to complaint by appellant’s father-in-law. The appellant had

contracted a second marriage during subsistence of his first marriage while

he was serving as a Deputy Inspector General of Police, Economic Offences

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Wing, State Criminal Investigation Department, and had therefore violated

Rule 3 and 19(2) of the Conduct Rules.

(ii) Chargesheet II dated 06.10.2020 for minor penalty in relation to

alleged violation of Conduct Rules by the appellant for giving a speech at his

book launch event on 29.03.2019. The State Government subsequently

decided to convert said departmental enquiry from minor penalty to major

penalty.

(iii) Chargesheet III dated 24.04.2022 for major penalty in relation to

alleged misconduct of not attending to duties on and from 12.12.2019 after

filing the Original Application, in absence of any interim relief by the CAT;

publishing information of tendering an application for voluntary retirement on

social media; registering protest against enactment of the Citizenship

(Amendment) Act, 2019 (“CAA”) on social media as well as physically

participating in protests; and, registering protest against police action on

social media.

9. On 07.12.2023, the CAT dismissed appellant’s OA by holding that

there were complaints pending and in contemplation against appellant at the

time when he submitted his VRS notice and consequently, upheld Order

dated 25.10.2019. The relevant portion of the CAT’s Order is reproduced

below –

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“10. …Complaints against the officer were pending under

consideration is an admitted position. Once the complaints are

admitted to have been pending on the date when the request for

voluntary retirement was made and no final decision had been

taken by the respective Government to drop the said complaint

then it cannot be said that the said complaints had stopped being

under contemplation or had resulted in no decision. The very fact

that the same State Government has issued 2 separate charge-

memorandum under Rule 8 of All India Services Disciplinary

Rules, for major penalty would show that the complaints against

the applicant were under contemplation at the relevant time.

11. The letter dated 16.10.2019 has pointed out to the nature of

the complaints which were pending against the applicant. One of

such complaint was with respect to the alleged 2nd marriage

solemnized by the applicant without consent of his first wife and

for abusing and torturing the first wife and son in this regard. The

conduct rules which are governing the Government servants do

not allow solemnization of 2nd marriage without divorce from the

first wife or when she is living. Such misconduct is a serious

violation of the Conduct Rules and, therefore, if the same is

proved it may culminate in major penalty. We do not wish to

comment any further on the inquiries which are pending, however

the same are pending under Rule 8 of the rules which is

pertaining to major penalty. Contemplation on the complaints

would require the Competent Authority to contemplate whether

the complaint is to be dropped or whether the Proceedings is to

be initiated. Such contemplation would also inherently include

with it the possibility of imposition of the major penalty of removal

or dismissal. The contemplation on misconduct/complaint cannot

be done in parts.

12. We find it odd that State Government in its letter dated

16.10.2019 had stated that the disciplinary proceedings are

under contemplation and also that they are not likely to result in

removal and dismissal. In our considered opinion both the stages

cannot exist simultaneously. If the complaints had been

contemplated upon then the disciplinary authorities would have

arrived at some conclusion. Subsequent events have

demonstrated that disciplinary authority ultimately decided to

hold enquiry into the alleged misconduct of the applicant.

Meaning thereby that at the relevant time the complaints were

pending contemplation. Therefore, the impugned order dated

25.10.2019 cannot be faulted with.”

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10. Aggrieved by CAT’s Order, appellant approached the High Court vide

a Writ Petition with identical prayers. The Impugned Order of the High Court,

dated 23.07.2024, dismissed this Writ Petition and the decision of the Central

Government to not accept the recommendation of the State Government in

appellant’s case was held to be well within the contours of Rule 16(2A) of

the 1958 Rules read with Guidelines on VRS by the Department of Personnel

and Training (“DoPT Guidelines”) dated 16.10.1980. It was held that the

Central Government is the ultimate authority concerning any manner of

severance of the employer-employee relationship, including those following

request by a member of service for VRS. The word “acceptance” in first

proviso to Rule 16(2A) cannot be construed as merely automatic or

ministerial, for Central Government’s acceptance is necessary for an officer

to voluntarily retire from service. The High Court was also of the view that

the Central Government is bound to apply its mind to all relevant facts and

circumstances when a proposal is put forth by a State Government regarding

an officer’s prayer for VRS. Relevant excerpts from the impugned judgement

on the authority of the Central Government are as follows -

“26. Thus, if the aforementioned provisions of various Rules and

Regulations are kept in mind, we are unable to agree with the

submission made by learned senior advocate for the petitioner

that the phrase "acceptance" occurring in the first proviso to Rule

16(2A) of the 1958 Rules has to be construed only to mean that

it is incumbent up on the Central Government to accept the

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proposal made by the Central Government on a prayer made by

the member of Indian Police Service seeking voluntary

retirement. If severance of employee- employer relationship in

case of punishment of dismissal, removal or compulsory

retirement takes place under an order to be passed by the

Central Government, in our opinion, the voluntary retirement,

which also ultimately results in severance of relationship between

the employee and employer, has to be in terms of an informed

decision to be taken by the Central Government.

27. The submission, thus, of Mr. Shaikh that "acceptance" cannot

be equated with "approval" in case of voluntary retirement sought

by a member of Indian Police Service, is highly misplaced. In our

considered opinion, when a proposal on the prayer made by a

member of Indian Police Service seeking voluntary retirement is

made by the State Government, the Central Government has to

apply its mind to all the relevant factors and materials and the

attending circumstances to arrive at a conclusion whether or not

to accede to such a prayer made by the officer concerned. The

act of "acceptance" as required by the first proviso appended to

Rule 16(2A) of the 1958 Rules does not, in our opinion, mean

performance of a ministerial act and therefore, "acceptance" by

the Central Government of the proposal of the State Government

cannot be a routine function of the Central Government.

29. We are unable to find ourselves in agreement with the said

submission made on behalf of the petitioner for the reason that

even if the State Government may have formed the opinion that

the departmental proceedings contemplated against the

petitioner would not warrant either of the major penalties, the

Central Government will be well within its authority and power

under the proviso appended to Rule 16(2A) of the 1958 Rules to

form its own opinion as to whether the disciplinary proceedings

pending/contemplated, would or would not result in a major

penalty. Merely because, in the opinion of the State Government,

the departmental proceedings which were contemplated against

the petitioner at the relevant point of time would not have

warranted major penalty, will not suffice for the purposes of

arriving at the decision whether to accept or not the prayer made

by the petitioner seeking voluntary retirement.

35. Thus, we unhesitatingly hold that in the instant case, by not

accepting the recommendation of the State Government’s

proposal contained in the letter dated 16th October 2019, the

Central Government has acted well within its authority available

to it under the first proviso to Rule 16(2A) of the 1958 Rules. Even

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otherwise, the proposal contained in the letter of the State

Government dated 16th October 2019 cannot be construed to be

a recommendation made by the State Government for accepting

the prayer for voluntary retirement made by the petitioner. The

said letter is only a proposal where the State Government has

given certain details and its opinion that the departmental

proceedings, which were contemplated against the petitioner at

the relevant point of time, may not result in either of the major

penalties. The Central Government, however, is not bound by

such an opinion formed by the State Government, otherwise, the

proviso appended to Rule 16(2A) of the 1958 Rules will be

rendered otiose, where the Central Government is the final

authority to accept the notice of retirement tendered by the officer

concerned.

36. In view of the foregoing discussions, we are of the

unambiguous opinion that the function assigned to the Central

Government under the proviso appended to Rule 16(2A) of the

1958 Rules cannot be construed to mean as a routine exercise;

rather, the Central Government is required to consider the entire

material available before it and thereafter take a conscious and

well-informed decision based on relevant considerations for

accepting or refusing to accept the notice of voluntary retirement

given by a member of Indian Police Service.”

11. While refraining from expressing an opinion on whether or not the

pending proceedings will amount to major or minor penalties against the

appellant, High Court held that the three chargesheets pertain to alleged

misconducts on part of the appellant prior to the filing of application for VRS

and thus, at the relevant point departmental proceedings were

contemplated against him. The relevant portions of the impugned

judgement are as follows –

“37. As regards the issue (c) mentioned above in paragraph 18,

it is to be noted that admittedly, there are three charge- sheets

which have presently been issued against the petitioner. The first

charge- sheet is dated 17th June 2020, the second charge- sheet

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is dated 6th October, 2020 and the third charge- sheet is dated

24th February, 2022. The said charge- sheets are on record. The

first charge- sheet dated 17th June 2020 contains two articles of

charges. The first article of charge states that the petitioner, while

working as Deputy Inspector General of Police, Economic

Offences Wing, State Criminal Investigation Department

contracted second marriage during subsistence of the first

marriage while his first spouse was alive and not divorced and,

thus, he violated Rule 19(2) of the All India Service (Conduct)

Rules, 1968. The second charge in the charge- sheet dated 17th

June 2020 is that the petitioner, while posted as Deputy Inspector

General of Police, has been mentally and physically harassing,

abusing and assaulting his first wife and children and compelling

them to accept his second marriage. As to whether such charges

may warrant minor or major penalty has to be left for

consideration of the Disciplinary/Appointing Authority. It is not the

function of this Court at this juncture to pre- judge the issue,

however, we may note that in respect of the charges contained

in the charge sheet dated 17th June 2020, the State Government

was having enough material to contemplate the disciplinary

proceedings and it is for the competent authority to opine as to

whether the charge- sheet would result in either of the major

penalties. Though we refrain from expressing our opinion as to

whether the charge- sheet dated 17th June 2020 may warrant

either of the major penalties, however, reference may be made

to a judgment dated 19th March, 2021 rendered by a Division

Bench of Delhi High Court in Writ Petition (C) No. 3613 of 2021

in the case of State of Rajasthan & Anr. vs. Pankaj Kumar

Chaudhary & Ors. In the said judgment, it has been observed

that ethical standards of an act of bigamy cannot always,

whatever the facts may be, lead to maximum punishment of

dismissal/removal of Government servant from service. Thus, an

act of bigamy indulged into by a Government employee, if is

subject-matter of disciplinary proceedings, may lead to maximum

punishment of dismissal or removal or may not result in

maximum punishment. Opinion in this regard has to be formed

by the competent authority and therefore, we refrain ourselves

from giving any such finding on the issue as to whether the

charges on the basis of which the disciplinary proceedings were

contemplated against the petitioner at the relevant point of time

would or would not result in any of the major penalties.

38. We may, nonetheless, notice a judgment of Hon'ble Supreme

Court in the case of Khursheed Ahmad Khan vs. State of Uttar

Pradesh & Ors, reported in (2015) 8 SCC 439, wherein the

penalty of removal inflicted on the employee concerned, based

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on the charge of contracting second marriage during existence

of the first marriage without permission of the Government, was

not interfered with.

39. The second charge- sheet is dated 6th October 2020,

however, the incident in respect of which the said charge- sheet

has been issued relates to a function held on 29th March 2019,

accordingly, the charge relates to a date prior to the date when

the petitioner had tendered the application seeking voluntary

retirement. Accordingly, at the relevant point of time, in respect

of the charges mentioned in the charge- sheet dated 6th October

2020, departmental proceedings were contemplated against the

petitioner.

40. Regarding the third charge- sheet, issued on 24th February

2022, it is to be noticed that the said charge- sheet also contains

a charge in respect of the alleged misconduct against the

petitioner concerning some speech delivered by him in a function

held on 29th March, 2019. Thus, this charge also relates to the

period prior to the date on which the petitioner had tendered the

application seeking voluntary retirement. As observed above, as

to whether such a charge would entail either of the major or minor

penalties, has to be left to the competent authority and it is not

for the Court to pre- judge any such issue.”

II. Submissions of the Parties

12. Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf of the

appellant made the following submissions -

i. Mr. Ahmadi commenced with an alternative submission that

instead of examining the legality of the decision taken by the Government on

the basis of the Rules, the appellant could be permitted to take voluntary

retirement subject to the conduct and conclusion of disciplinary proceedings.

He would suggest that this course of action can be adopted by exercising

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extraordinary jurisdiction under Article 142 of the Constitution as done in the

case of Ashok Kumar Sahu v. Union of India

3

.

ii. On the merits of the matter, it is submitted that under Guideline

3(ii) of the DoPT Guidelines on VRS, the State Government has the final and

determinative say on whether any disciplinary proceedings, which are

pending or contemplated, may warrant a major penalty of dismissal or

removal. He supported this submission by relying on State Government’s

letter dated 16.10.2019 to the Central Government, wherein it recommended

appellant’s application for VRS be accepted by noting that the disciplinary

proceedings may not lead to the imposition of a major penalty. He would

therefore submit that once the State Government, being the disciplinary

authority, expressed its considered opinion, the Central Government was

bound to accept that assessment and it could not have independently

substituted the State Government’s opinion with its own.

iii. Alternatively, even if it is held that the Central Government has

such discretion, on the relevant date for consideration, that is, when

appellant applied for VRS on 01.08.2019, the conditions precedent for its

exercise of discretionary power under Guideline 3(ii) of the DoPT Guidelines,

3

(2006) 6 SCC 704.

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i.e, existence of disciplinary proceedings which are pending or contemplated,

are not met. On that date, there was no formal chargesheet served upon the

appellant, and none of the three complaints progressed to a stage where

proceedings were genuinely contemplated within the meaning of Guideline

3(ii). He relied on State of Haryana v. Dinesh Singh

4

, to say that mere

pendency of a complaint, without any concrete steps towards initiating

proceedings, does not amount to ‘contemplation’.

iv. The Central Government Order dated 25.10.2019 suffers from

non-application of mind as it does not engage with the State Government’s

opinion that no major penalty was likely and also does not pay mind to actual

statutory criteria stated hereinabove.

v. By the time the VRS application on 01.08.2019 was made,

nothing remained to prevent the Central Government from approving

appellant’s VRS application. The State Government already cleared the

appellant’s case and took the view that no major penalty may be imposed in

pending disciplinary proceedings against him.

13. Ms. Aishwarya Bhati, learned Additional Solicitor General appearing

on behalf of the Union of India made the following submissions -

4

(2024) 13 SCC 357, 31 -33.

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i. Rule 2(b) of the All India Services (Discipline and Appeal) Rules,

1969 defines ‘disciplinary authority’ as the authority competent to impose

penalties under Rule 6. Rule 7(2) of the same Rules provides that penalty of

dismissal, removal from service, or compulsory retirement shall not be

imposed upon a member of an All India Service except by an order of the

Central Government. Owing to Rule 7(2), the Central Government alone is

the disciplinary authority for the purpose of imposing major penalties on IPS

officers.

ii. In the same vein, the word ‘acceptance’ in the first proviso of

Rule 16(2A) of 1958 Rules cannot be construed as an automatic act. Owing

to the fact that Central Government is the competent authority for severance

by way of punishment, it must exercise genuine discretion, and as such, is

also the disciplinary authority under Guideline 3(ii). Since Central

Government is the ultimate authority to impose major penalties under Rule

7(2), it would be anomalous , she would submit to hold that the Central

Government will be bound by the State Government’s opinion on whether

such a penalty would be warranted.

iii. According to her, the relevant date of consideration by Central

Government for when proceedings are pending or contemplated has to be

the date on which the Central Government considered the application, and

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not the date on which the application for VRS is made. Contemplation, as

per Dinesh Singh (supra), means any period of time before the formal filing

of chargesheet. As on 25.10.2019, she would submit, proceedings were in

fact genuinely contemplated against the appellant.

iv. Ashok Kumar Sahu (supra) can be distinguished on the

circumstances of that case, which was in the context of a withdrawal by a

VRS applicant after VRS was already approved, but not communicated to

the applicant.

14. Mr. Shrirang Varma, learned counsel appearing for the State of

Maharashtra adopted the submissions made by Ms. Bhati and specifically

stated that the State Government has no role to form an opinion under Rule

16(2A), and is merely a forwarding authority. Upon a question being put to

him about the cause of the delay in issuing chargesheets, Mr. Varma has

submitted that such delay was due to unavailability of witness statements.

III. Analysis

Re: Scope of Central Government’s power under Rule16(2A) of the 1958

Rules read with Guideline 3(ii) of 1980 Guidelines

15. In order to conclusively adjudicate the lis between the parties, it is

necessary to ascertain the scope and ambit of the Central Government’s

power in accepting VRS notices under Rule 16 of the 1958 Rules. This rule

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provides for entitlement of an All India Service Officer to gratuity or pension

upon superannuation. Rule 16(1) speaks about retirement through

superannuation when an Officer turns sixty. Rule 16(2) speaks about VRS

and entitles officers to retirement after 30 years of service or on attaining fifty

years of age. Rule 16(2A), being the rule relevant for our purpose, specially

entitles an officer to voluntarily retire after completing 20 years of service by

issuing notice to the State Government. Relevant portion of the Rule is

reproduced below for ready reference -

“1958 Rules

Rule 16. Superannuation gratuity or pension –

(1)…

(2)…

(2A) A member of the service may, after giving three months'

previous notice in writing to the State Government concerned,

retire from service on the date on which he completes 20 years

of qualifying service or any date thereafter to be specified in the

notice:

Provided that a notice of retirement given by a member of the

service shall require acceptance by the Central Government

if the date of retirement on the expiry of the period of notice would be earlier than the date on which the member of the Service could have retired from service under sub- rule (2):

Provided further that a member of the Service, who is on deputation to a corporation or company wholly or substantially owned or controlled by the government or to a body controlled or financed by the Government, shall not be eligible to retire from the service under this rule for getting himself permanently absorbed in such corporation, company or body.

Provided also that a member of the Service borne on the Cadres of Assam-Meghalaya. Manipur-Tripura, Nagaland and Sikkim

may retire from service on the date on which he/she completes

15 years of service.”

(emphasis supplied)

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16. It is evident from the above that a notice for voluntary retirement will

be valid only when it is accepted by the Central Government. The process

by which the Central Government accepts the notice for voluntary retirement

coupled with the considerations that should weigh are provided in the DoPT

Guidelines. Guideline 3, laying down the process for acceptance is as

follows-

"Guideline 3: Guidelines for acceptance of notice of voluntary

retirement: -

For acceptance of the notice of retirement under sub- rule(2) and

(2A) of Rule 16 of the All India Service (Death- cum-retirement

Benefits) Rules, 1958, the following guidelines are laid down:-

…

ii) In cases where disciplinary proceedings are pending or

contemplated against a member of the Service for the

imposition of a major penalty and the disciplinary authority

having regard to the circumstances of the case, is of the view that the imposition of the major penalty of removal or dismissal for service would be warranted, the notice of voluntary retirement given by the officer concerned may not ordinarily be accepted.

…”

17. The words ‘may not ordinarily be accepted’ in Paragraph (ii) of the

Guidelines is intended to vest in the Government the discretionary power of

acceptance or rejection of the notice depending on the facts in which an

employee is situated. Before exercising such a discretion, the Guideline

contemplates existence of disciplinary proceedings – either pending or

contemplated against the member of the s ervice. Further, the Government

has to take into account the opinion of the disciplinary authority as regards

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the possibility of imposition of major penalty for removal or dismissal from

service. Therefore, having regard to the pending disciplinary proceedings,

coupled with the opinion of the disciplinary authority, the Government will

exercise its power and duty under proviso to Rule 16(2A) to accept or reject

application for VRS. It is important to note that the discretion vested in the

Central Government to finally accept or reject the application is to be

exercised on an independent assessment, and that is the reason for the

Guideline clarifying that the view of the disciplinary authority may or may not

ordinarily be accepted. This would also mean that the Central Government

under proviso to Rule 16(2A) would take its independent decision even in a

case where the State Government is of the view that the disciplinary

proceedings could warrant imposition of major penalty of removal and

dismissal. We are of the opinion that the Rule contemplates exercise of

power with responsibility to ensure good governance, balancing discipline

with freedom of employee and fairness in action.

18. We are not in agreement with Mr. Ahmadi’s submission that the Central

Government could not have taken a different view once the State

Government forwarded its recommendation that no major penalty will be

imposed on the officer in its communication dated 16.10.2019. Such an

inference would render proviso to Rule 16(2A) meaningless. The Rule

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specifically empowers the Central Government to take the final decision of

acceptance of a notice of VRS by a member of the s ervice. It is interesting

to note that prior to its amendment with effect from 01.07.1998, the Rule

16(2A) proviso was worded differently.

5

After the amendment, a notice for

VRS by a member of the service the proviso specifically requires acceptance

of the Central Government.

19. The All India Services contemplated under Article 312 of the

Constitution came into existence with the enactment of the All India Services

Act, 1951. This Act, coupled with subordinate legislations made thereunder,

touch upon various facets of the service such as recruitment, cadre

allocation, pay and allowance, leave, pension, promotions, dismissal,

removal, suspension, compulsory or voluntary retirement and retirement

benefits. There is, therefore, no gainsaying about the position of the

operation of the Rule that a request for VRS by a member of the s ervice

mandatorily requires acceptance of the Central Government.

5

“16. (2-A) A member of the service may, after giving three months' previous notice in writing to

the State Government concerned, retire from service on the date on which he completes 20 years

of qualifying service or on any date thereafter to be specified in the notice:

Provided that a notice of retirement given by a member of the service shall require

acceptance by the State Government if the date of retirement on the expiry of the period of notice

would be earlier than the date on which the member of the service could have retired from service

under sub-rule (2):”

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20. In Ashok Kumar Sahu (supra) this Court examined Rule 16(2A) in

detail including amendment to the proviso that was brought about by

notification dated 01.07.1988. The relevant portion of this Court’s judgment

is as under-

“12. Sub-rule (2-A) of Rule 16, with which we are concerned

herein, reads as under:

“16. (2-A) A member of the service may, after giving three

months' previous notice in writing to the State Government

concerned, retire from service on the date on which he

completes 20 years of qualifying service or on any date

thereafter to be specified in the notice:

Provided that a notice of retirement given by a member of the

service shall require acceptance by the State Government if

the date of retirement on the expiry of the period of notice

would be earlier than the date on which the member of the

service could have retired from service under sub- rule (2):”

13. The said rule, however, was amended by a notification dated

1-7-1988 in the following terms:

“In Rule 16 of the All India Services (Death- cum-Retirement

Benefits) Rules, 1958—

(i) in the proviso to sub- rule (2), for the words ‘State

Government concerned’, the words ‘Central Government’

shall be substituted;

(ii) in the first proviso to sub- rule (2-A), for the words ‘State

Government concerned’, the words ‘Central Government’

shall be substituted.”

14. In view of the said amendment, thus, an offer of retirement

made by a member of service requires acceptance by the Central

Government and not by the State Government. The materials on

record, as noticed hereinbefore, clearly point out that the authorities proceeded on the basis of the Rules prior to amendment. In terms of the amended sub- rule (2-A) of Rule 16,

the offer of the appellant was required to be accepted by the Government of India and not by the Joint Cadre Authority. The question of application of mind by the Joint Cadre Authority for

the purpose of acceptance of the said offer and/or approval thereof by the Government of India does not arise. At the first

instance it was obligatory on the part of the competent authority

Page 21 of 30

of the Central Government to apply its own mind and pass an appropriate order. The competent authority could not have

delegated its power to the Joint Cadre Authority or for that matter,

the State of Assam.

16. When the terms and conditions of service of an officer are

governed by the All India Services Rules, the State Government

exercises delegated power. Prior to amendment of the Rules, the

State Government was the competent authority to accept such

offer of voluntary retirement, whereas after the amendment, it is

the Central Government alone which is competent therefor.

Cessation of a contract of employment or status in law would be

completed in terms of the provisions of the Rules when the

competent authority passes an appropriate order. The action, in

terms of the Rules, can be taken by the prescribed authority

alone and not by any other authority. An order passed by an

authority without jurisdiction would be non est in the eye of the

law. It is coram non judice.

18. The expression “approval” presupposes an existing order.

“Acceptance” means communicated acceptance. A distinction exists between the expressions “approval” and “acceptance”. Whereas in the latter, an application of mind on the part of the competent authority is sine qua non, approval of an order only

envisages statutory entitlement. Approval of an order is required as directed by the statute. It can be given a retrospective effect. Even valid contract comes into being only after the offer is accepted and communicated. Where services of an employee

are dispensed with, the order takes effect from the date when it is communicated and not from the date of passing of the order. (See State of Punjab v. Amar Singh Harika)”

21. Thus, the voluntary severance of employee-employer relationship

pursuant to a VRS notice requires 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 a well considered exercise of discretion by the Central

Government. The scheme of the extant rules governing the All- India

Page 22 of 30

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. We also make

it clear that this power is not unconstrained and is qualified. Exercise of

discretion by the Central Government 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 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 case to 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.

22. The Central Government 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

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the officer serving in connection with affairs of that State and under whose

authority any disciplinary proceedings are to be conducted.

6

Even Ashok

Kumar Sahu (supra) notes that such order passed by the competent

authority needs application of mind. Thus, exercise of discretionary power in

accepting or rejecting a request for VRS cannot be without engagement with

views expressed by the State Government.

Re: Whether the Central Government was justified in rejecting VRS in

the facts and circumstances of the present case?

23. In light of the above discussion, in order for the Central Government to

validly exercise its discretionary power under proviso Rule 16(2A) read with

Guideline 3(ii) of the DoPT Guidelines to reject a ppellant’s VRS notice, it

must first be shown that disciplinary proceedings were pending or

contemplated against a member of the service which could culminate into a

major penalty. A disciplinary proceeding is pending only when a formal

chargesheet is issued.

7

As on 25.10.2019, the date on which the Central

6

Rule 2(c)(i) read with Rule 7(1)(b) of the 1969 Rules.

7

Union of India v. K.V. Jankiraman, (1991) 4 SCC 109

“16. On the first question, viz., as to when for the purposes of the sealed cover procedure the

disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal

has held that it is only when a charge-memo in a disciplinary proceedings or a charge- sheet in a

criminal prosecution is issued to the employee that it can be said that the departmental

proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure

is to be resorted to only after the charge- memo/charge- sheet is issued. The pendency of

preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt

the sealed cover procedure. We are in agreement with the Tribunal on this point…”

Page 24 of 30

Government rejected the appellant’s VRS Notice, no chargesheet had been

served upon the appellant. No disciplinary proceedings were therefore

pending against him.

24. Now the question is as to whether any proceedings were contemplated

against the appellant as on 25.10.2019. ‘Contemplation’ in the present

context connotes a deliberate intention to act on a complaint, instead of a

mere existence of a pending complaint.

8

That is, it is to be seen whether

there exists a possibility or a contingency that a formal departmental

proceedings may follow a given complaint, in order to arrive at a conclusion

as to ‘contemplation’.

9

25. In order to appreciate whether disciplinary proceedings were

contemplated against the appellant it is necessary to review the position that

existed as on 25.10.2019. No action was taken regarding Complaint I dated

22.07.2014 by Tukaram Bhimrao Jadhav by the time the Central

Government considered appellant’s request for VRS on 25.10.2019. This

complaint remained inconclusive as on 25.10.2019. Complaint II dated

28.04.2016 by appellant’s father in law stood withdrawn by the complainant

by 22.09.2017 itself i.e. more than two years before the Central Government

8

State of Haryana (supra).

9

State of UP v. Jai Singh Dixit, 1974 SCC OnLine All 24 0, para 35, 39- 41.

Page 25 of 30

took its decision on 25.10.2019. As regards Complaint III, arising out of

enquiry initiated against the appellant for making a speech at his book launch

event on 29.03.2019, the State Government in its recommendation letter

dated 16.10.2019 to the MoHA stated that a detailed inquiry report with a

draft chargesheet was awaited from the Directorate General of Police,

Mumbai. However, it was also of the opinion that the complaint is unlikely to

result in imposition of a major penalty against the appellant.

26. A comprehensive view of the complaints existing as on the relevant

date would indicate that out of the three complaints, only Complaint III 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 16.10.2019 and the material

considered therein, so as to justify the departure from the recommendation

to permit the appellant to voluntarily retire from service.

27. In light of the above analysis, decision of the Central Government

dated 25.10.2019 is liable to be set aside on ground that there is no proper

Page 26 of 30

application of mind and the issue relating to acceptance or rejection of

appellant’s VRS notice necessarily requires a thorough reconsideration.

28. The story does not stop here. In the meanwhile, much has happened

after the rejection order dated 25.10.2019, and we will be remiss if we do not

account for the subsequent developments. During the pendency of

appellant’s Original Application before the CAT, three chargesheets came to

be issued. The Chargesheet I (major penalty for contracting second

marriage) was issued on 17.06.2020, that is ten months after appellant

applied for VRS on 01.08.2019 and four years after the original complaint

was filed on 28.04.2016 and nearly three years after the complainant

withdrew his complaint on 22.09.2017. Chargesheet II (minor penalty for

speech at book launch event) was issued on 06.10.2020, eighteen months

after the event held on 29.03.2019. Chargesheet III (major penalty for

protests against Citizenship (Amendment) Act and absence from duty) was

issued on 24.02.2022 nearly two and a half years after appellant filed his

Original Application before the CAT. The State Government has been

indifferent and seems unconcerned about concluding the enquiry.

29. Apart from the above delay in issuance of chargesheets, further action

of the State Government is marred with similar tardiness. Inquiry officers

have been appointed only in 2024 in Chargesheet I with a delay of four years,

Page 27 of 30

and in Chargesheet III with a delay of two years. No such appointment has

been made for purposes of Chargesheet II yet, despite the passage of five

years. The appellant has received summons to attend preliminary hearing in

2025 for Chargesheet I issued in 2020 and in 2026 for Chargesheet III issued

in 2022. Though Mr. Shrirang Varma, learned counsel for the State

Government, with usual fairness brought to our notice all the facts of the

case, we are of the opinion that the method and manner of conducting

disciplinary proceedings is unacceptable.

30. Thus, the inchoate proceedings initiated with the three complaints, that

fell for consideration before the Central Government as on 25.10.2019,

acquired a new dimension on account of the long and unjustified delay in

conclusion of the disciplinary proceedings without any result. In State of AP

v. N. Radhakishan

10

, this Court held that unexplained delay in conclusion of

disciplinary proceedings is itself an indication of prejudice against an officer–

“19. It is not possible to lay down any predetermined principles

applicable to all cases and in all situations where there is delay

in concluding the disciplinary proceedings. Whether on that

ground the disciplinary proceedings are to be terminated each

case has to be examined on the facts and circumstances in that

case. The essence of the matter is that the court has to take into

consideration all the relevant factors and to balance and weigh

them to determine if it is in the interest of clean and honest

administration that the disciplinary proceedings should be

allowed to terminate after delay particularly when the delay is

abnormal and there is no explanation for the delay. The

10

(1998) 4 SCC 154.

Page 28 of 30

delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to

undergo mental agony and also monetary loss when these are

unnecessarily prolonged without any fault on his part in delaying

the proceedings . In considering whether the delay has vitiated

the disciplinary proceedings the court has to consider the nature

of charge, its complexity and on what account the delay has

occurred. If the delay is unexplained prejudice to the delinquent

employee is writ large on the face of it. It could also be seen as

to how much the disciplinary authority is serious in pursuing the

charges against its employee. It is the basic principle of

administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.”

31. The facts and circumstances as indicated hereinabove demonstrate

that a lot of water has passed since filing of the first complaint in 2014 and

also since the first chargesheet issued in 2020, yet the process is far from

reaching a conclusive finding. When we enquired from the learned counsel

for the appellant as to whether the long and inconclusive delay in the

disciplinary proceedings was ever challenged, we were informed that no

such remedy was adopted. It is suggested that this Court could exercise its

jurisdiction under Article 142 of the Constitution, as done in the case of Ashok

Kumar Sahu (supra). The facts in the case of Ashok Kumar Sahu (supra) are

completely different and did not relate to a case of disciplinary proceedings,

Page 29 of 30

but were concerned with an attempt to withdraw an application for VRS after

it was already accepted. It is in that context, having upheld the exclusive

power of the Central Government to accept a notice for VRS, the Court

passed orders under Article 142 by not reinstating the applicant in service

but permitting him to voluntarily retire with benefits. Returning to the facts of

the present case, while it may not be a case under Article 142, we leave it

open to the appellant to avail such remedies as may be available to him in

law.

IV. Conclusion and Relief

32. In view of the above discussion and analysis, we are of the opinion that

the Central Government has not examined the complaints in detail before

taking the decision dated 25.10.2019 of not accepting the notice for VRS.

Further, in view of the subsequent developments where chargesheets dated

17.06.2020, 06.10.2020 and 24.04.2022, were issued but the State

Government has been unable to conclude the disciplinary proceedings, the

Central Government must revisit its decision dated 25.10.2019 and examine

the notice for voluntary retirement afresh.

33. In view of the above, we allow the appeal against the judgment and

order of the High Court in Civil Writ Petition No. 1018/2024 dated 23.07.2024,

set aside the order dated 25.10.2019, and direct MoHA to take into account

Page 30 of 30

the facts and circumstances as indicated hereinabove and pass appropriate

orders under proviso to Rule 16(2A) on the application for VRS by the

appellant. Needless to say, against the order that may be passed by the

MoHA under proviso to Rule 16(2A), if necessary and if so advised, the

appellant may be entitled to avail such remedies as may be available in law,

including invocation of jurisdiction of the CAT.

34. We further direct that the decision in this regard shall be taken within a

period of three months from today.

………………………………....J.

[PAMIDIGHANTAM SRI NARASIMHA ]

………………………………....J.

[ALOK ARADHE ]

NEW DELHI;

MAY 26, 2026.