Deemed resignation cannot be imposed retrospectively after superannuation under the All India Services Leave Rules.

The applicant, an Odisha-cadre IAS officer, proceeded on study leave from 05.06.2002 to 06.06.2003 and thereafter obtained earned leave and extraordinary leave in different spells up to 09.05.2007. He was required to resume duty on 10.05.2007, but did not do so

While on leave, he applied on 01.05.2007 for voluntary retirement with effect from 09.05.2007. The State Government forwarded the application to the Government of India with a recommendation against acceptance, citing pending disciplinary proceedings; no decision on the application was communicated to him

The applicant did not resume duty and subsequently reached the age of superannuation on 31.10.2012. A show-cause notice dated 20.03.2013 was then issued proposing deemed resignation under Rule 7(2)(b) of the All India Services (Leave) Rules, 1955. The applicant replied on 22.04.2013.

Although the disciplinary proceedings were ultimately concluded in his favour on 09.01.2015, the Government of India issued an order dated 17.02.2016 treating him as having resigned from service retrospectively with effect from 10.05.2007. His appeal was rejected by order dated 07.06.2016

Whether the applicant could be deemed to have resigned under Rule 7(2)(b) of the All India Services (Leave) Rules, 1955, when the show-cause notice was issued only after he had attained the age of superannuation?

Whether the retrospective treatment of the applicant’s deemed resignation with effect from 10.05.2007 was legally sustainable?

Whether the pendency of disciplinary proceedings justified non-acceptance or indefinite withholding of the applicant’s voluntary-retirement request and denial of retirement benefits?

The Tribunal applied Rule 7(1) of the All India Services (Leave) Rules, 1955, which prohibits grant of leave of any kind for a continuous period exceeding five years, and Rule 7(2)(b), under which a member may be deemed to have resigned if absent from duty for a continuous period exceeding five years, even where the unauthorized absence is less than one year; however, the proviso requires that a reasonable opportunity to explain the absence must be given before invoking the rule

The Tribunal also considered Rule 16(1) and Rule 16(2) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, concerning superannuation and voluntary retirement after requisite notice

It further relied on The State of Mysore v. C.N. Vijendra Rao, AIR 1976 SC 477, for the principle that resignation becomes effective upon acceptance and cannot ordinarily be given retrospective effect

The principles of natural justice and the requirement of timely, meaningful consideration of the explanation under Rule 7 were also central to the decision

The Tribunal held that although the respondents relied on the applicant’s absence after 10.05.2007 to invoke Rule 7(2)(b), the mandatory safeguard of a reasonable opportunity to explain had to be afforded before invoking deemed resignation. Instead, the show-cause notice was issued nearly six years after the applicant’s voluntary-retirement request and after he had already attained the age of superannuation on 31.10.2012

The delay was particularly significant because the respondents had not communicated any effective decision on the voluntary-retirement application, nor shown what action the Central Government had taken upon the State Government’s forwarding letter

The Tribunal further found that issuing the notice after superannuation and subsequently declaring the applicant to have resigned retrospectively from 10.05.2007 was legally unsustainable. Applying the principle in Vijendra Rao, it held that resignation takes effect from acceptance and that the respondents could not retrospectively alter the applicant’s service status after the master–servant relationship had ceased upon superannuation

The belated invocation of Rule 7, coupled with retrospective operation, therefore invalidated the impugned decision.

Accordingly, the order dated 17.02.2016 treating the applicant as deemed to have resigned and the consequential appellate order were quashed.

The Original Application was allowed to that extent; no costs were awarded