Brij Mohan Sharma vs State of Rajasthan

N.C. Kochhar, J.—The petitioner had joined the services of the State of the State of Rajasthan, in the Rajasthan Police as a constable in the year 1966, and was promoted to the post of Head Constable in the year, 1976, with Belt No. 113 (Kota city) was to retire from his service in the year 2003. He submitted an application dated 9th December, 1987(Annex. 1) to the Superintendent of Police Kota city (the respondent No. 4), Under Rule (1) of Rule 244 of the Rajasthan Service Rules, 1951 (''the Rules'') giving three months'' notice for seeking voluntary retirement. Vide the order dated 10th December, 1987 (Annex. 2),passed by the respondent No. 4, his request for voluntary retirement, was accepted and it was declared that he would stand retired on the afternoon of 8th March, 1988. He applied for leave prior to his retirement and vide the order dated 14th December, 1987 (Annex. 3),he was sanctioned Half-Pay Leave for the period from 15th December, 1987 to 8th March, 1988. The petitioner gave a second thought and vide the application dated 21st January, 1988 (Annex. 5), submitted to the respondent No. 4 that he was under mental tension earlier and had applied for being voluntarily retired but that he had been relieved of that tension and wanted to serve the State Government and prayed that the order of his voluntary retirement (Annex. 2),be cancelled and he be allowed to serve the Government,and thereafter vide the application dated 29th January, 1988(Annex. 4), he requested the Inspector, Reserved Lines, Kota City, Kota, to cancel the unexpired period of his leave and to allow him to join his duties. Since the petitioner was neither allowed to join his duties by cancellation of the order of retirement, nor was the said order cancelled, he submitted the applications dated 29th February, 1988 and 7th March, 1988 (Annex. 6 and 8 respectively), requesting the respondent No. 4,to cancel the order of his voluntary retirement and to allow him to serve the State Government. Since no action was taken on his aforesaid applications, vide the application dated 8th March, 1988(Annex. 9) he represented to the Deputy Inspector General of Police, Kota Range, Kota, (the respondent No. 3), bringing to his notice that in spite of his above-said applications, the order of his voluntary retirement, had not been cancelled and praying that the same be cancelled and he be allowed to serve the State Government. No action was, however, taken and thereafter, he sent the letter dated 1st June, 1988 (Annex. 10) to the Director General of Police, Rajasthan, Jaipur (the respondent No. 2) and to His Excellency the Governor of the State, with the similar requests, but no relief was granted to him and thereafter, he approached this Court by filing this writ petition on 7th February, 1991 contending that he having withdrawn his notice of voluntary retirement before the date of his retirement, the order of his retirement ought to have been cancelled and that non-cancellation of the same was illegal. He, therefore, prayed that the order of his retirement (Annex. 2) and the report dated 8th March, 1988 (Annex. 7), recorded about his having retired on that date, be quashed and he be directed to be treated as continuing in the service, as if he had never been retired, with all consequential reliefs.

The writ petition has been opposed by the respondents.

I have heard the learned Counsel for the parties and have also perused the record of the case.

Shri MM Mehrishi, the learned Counsel for the respondents, has contended that since the order of retirement (Annex. 2) had been passed before the petitioner submitted the application for withdrawal of the notice of voluntary retirement, the order could not be cancelled by the respondents. It has also been contended that the petitioner has approached this Court, with delay and, as such, cannot be granted any relief.

It is, however, not disputed that although the aforesaid applications had been received from the petitioner, no order, whatsoever, had been passed thereon by the respondent No. 4 or by the respondents Nos. 3 or 2, and no communication was sent to him, rejecting his prayer for withdrawal of the notice of voluntary retirement.

Clause (0 of Sub-Rule of (1) of Rule-244 of the Rules, reads as under:

(f)A Government servant may, with the approval of the Appointing Authority withdraw the notice given under Clause (a) of the Sub-Rule, provided the request for such withdrawal is made before the expiry of the notice.

The bare reading of the above-said provision, shows that a Government servant, after giving the notice of voluntary retirement, can make a request for its withdrawal; before the expiry of the period of the notice and the notice would stand withdrawn with the approval of the Appointing Authority. In other words, when a request for withdrawal of notice, is made, the Appointing Authority has to apply its mind and to decide whether or not to grant the approval for such withdrawal.

As noted above, admittedly, no order, whatsoever, had been passed on the applications, submitted by the petitioner, for withdrawal of the notice of his retirement, with the prayer that he be allowed to Join his duties and it appears that no attention was given to the applications of the petitioner, presumably on the ground that the retirement order having already been passed, the petitioner could not make a request for withdrawal of the notice of his voluntary retirement. This amounted to inaction on the part of the respondent No. 4 and has resulted in injustice to the petitioner, who has been deprived of his right of serving the Government till the date of his superannuation.

It is true that the petitioner did not approach this Court soon after 8th March, 1988, but on that account, in the present circumstances, his writ petition cannot be dismissed, but it will have to be seen as to what relief should be granted to him.

In view of my above discussion. I quash the order dated 10th December, 1987 (Annex. 2), passed by the respondent No. 4 about the voluntary retirement of the petitioner with effect from 8th March, 1888 and the report dated 8th March, 1988 (Annex. 7), recording that the petitioner had stood retired with effect from the afternoon of that date and direct that he should be deemed to have continued in the service, without any break, with the right of fixation, seniority and all consequential benefits, but he having approached the Court with delay, would not get any salary for the period from 9th March, 1988 to 6th February, 1991 and the said period would be treated as leave without pay, but if any portion of the leave was lying to his credit upto 8th March, 1088, the same would be adjusted towards the above-said period and further if the Rules permit, the leave, to be earned by him for the future period, may also be adjusted against the above-said period, if the petitioner so requests. It is further directed that the order of reinstatement of the petitioner, should be issued, without any unreasonable delay and he should be given all the arrears of his salary with effect from 7th February, 1991, within a period of four months from today.

The writ petition stands disposed of accordingly. No costs.