Judgment:
Rathore, J.
1. Heard Mr. S.P. Sharma, learned counsel for the petitioners.
2. The petitioner filed this writ petition with the prayer that the order dated 30.11.1995 read with order dated 28.11.1995 be quashed and set aside and the respondents be directed to treat the petitioner in service with all consequential benefits. During the pendency of this writ petition, the petitioner expired on 29.11.2000. On 17th January, 2001, an application was moved for taking on record the legal representatives of the petitioner and amended cause title was also filed.
3. The brief facts of the case are that the petitioner's husband-Bhairon Singh was an Ex-Army personnel and was appointed as Ambulance Driver vide order dated 22.9.1972 on temporary basis in the pay scale 110-230 with usual allowances. The petitioner was confirmed on the post of Driver vide order dated 31.12.1981 w.e.f. the date of initial appointment. Somewhere in August, 1994 some miscreants entered into his house and gave beating to his entire family in the village, In this incident when one of them was about to kill the petitioner, his elders son who was only studying in 11th Class intervened and due to the injuries caused on him, he died. The petitioner was also suffered grievous injuries and also suffered great mental shock. He ultimately submitted an application for seeking voluntary retirement on 9.8.1995 wherein it was given out by Bhairon Singh that his resignation may be accepted w.e.f. 30.11.1995 under Rule 244 (1) of the Rajasthan Service Rules, 1951. The petitioner's husband-Bhairon Singh being advised by his colleagues and other elders in the village, submitted an application on 29.11.1995 for withdrawing his resignation letter dated 9.8.1995 and the said application dt. 29.11.1995 was received in the office of respondent No. 3 on the same day. The Joint Director, Medical and Health, considering the voluntary retirement application dated 9.8.1995 accepted the said application vide order dated 28.11.1995 and the respondent No. 3 retired the petitioner w.e.f. 30.11.1995. On the withdrawal application, it was communicated to the petitioner's husband that his application dated 29.11.1995 cannot be considered since his application for voluntary retirement had already been accepted on 28.11.1995. Feeling aggrieved and dissatisfied with the order dated 28.11.1995, the petitioner preferred this present writ petition.
4. Learned counsel for the petitioners, Mr. S.P. Sharma submits that the respondents had seriously erred not to consider the withdrawal application for voluntary retirement which was submitted by the petitioner on 29.11.1995 prior to stipulated date i.e. 30.11.1995 and this application ought to have been considered by the respondents and it was their bounden duty to have withheld the order of voluntary retirement and should have taken a decision on the application moved by the petitioner prior to 30.11.1995. In the application, which was earlier moved by the petitioner for seeking voluntary retirement dated 9.8.1995, the reason was categorically given that the petitioner under the prevalent circumstances and due to mental distress cannot continue in the service and moved the application for voluntary retirement. After well advice from his colleagues and elders, he moved application for withdrawal of earlier application dated 9.8.1995 on 29.11.1995. In view of the provisions of Rule 244(1) of the Rajasthan Service Rules, 1951, the respondents should have considered the application for withdrawal dated 29.11.1995 whereas the respondents have already accepted the application dated 9.8.1995 on 28.11.1995 which is per se illegal and contrary to Rule 244(1) and law laid down by Hon'ble Supreme Court.
5. To resolve the present controversy, I would like to cite the Rule 244(1) which deals with the optional retirement on completion of 20 years qualifying service :-
244. (1) Optional Retirement on Completion of 20 years qualifying service.-(a) a Government servant may, after giving at least 3 month's previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice:
Provided that it shall be open to the Appointing Authority to with-hold permission to retire a Government servant:
(i) Who is under suspension:
(ii) In whose case disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service :
(iii) In whose case prosecution is contemplated or may have been launched in a court of law:
(b) A Government servant who has given notice for seeking retirement under Clause (a) of this sub-rule, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice.
(c) If a Government servant seeks retirement under this sub-rule while he is on leave not due, without returning to duty, the retirement shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him.
(d) A Government servant who seeks voluntary retirement under Clause (a) of this sub-rule shall be entitled to a weightage of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. The grant of weightage upto 5 years shall, however, be subject to the following conditions:-
In respect of Government servants governed by pension rules:-
(i) The service qualifying for retirement benefit shall be enhanced by the addition of five years in such cases. The resultant length of service after taking into account the addition of notional service shall in no case be more than 33 years qualifying service or the qualifying service the Government servant concerned could have counted had he retired on attainment of superannuation age, whichever is less.
(ii) In cases where qualifying service is increased under (i) above, the emoluments as defined in Rule 250(C) of the Rajasthan Service Rules which the Government servant was receiving immediately before the date of retirement shall be taken into account for the purpose of calculation of pension and gratuity.
(iii) In respect of Government servants governed by the Contributory Provident Fund Scheme :- Government contribution (bonus and special contribution) shall be enhanced by the amount which would have accrued by the addition of five years notional service.
(iv) The notional contribution shall be added on the basis of the amount of subscription made immediately before the date of retirement without subscribing to the fund on or after the date of his retirement.
(v) The resultant increase in the aforesaid manner shall in no case be more than the contribution (bonus and special contribution) which could have been credited in his provident fund account had he retired on completion of 33 years qualifying service or on attainment of the age of superannuation whichever is less.
(vi) The benefit of five years, notional qualifying service mentioned in this clause shall not be admissible to a Government servant who is retired under Sub-rule (2) of this Rule.
(e) A Government servant who give notice of voluntary retirement under Clause (a) of Sub-rule (1) shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 20 years qualifying services for pension.
(f) A Government servant may, with the approval of the Appointing Authority, withdraw the notice given under Clause (a) of sub-rule provided the request for such withdrawal is made before the expiry of the notice.
(g) The authority competent to retire a Government servant may, in deserving cases, accept the notice contemplated under Clause (a) of this sub-rule for a period of less than 3 months with the concurrence of the Government in the Finance Department.
(h) Deleted.
6. In view of Rule 244(1) F, a servant may, with the approval of the Appointing Authority, withdraw the notice given under Clause (a) of sub-rule provided the request for such withdrawal is made before the expiry of the notice. Mr. S.P. Sharma, learned counsel for the petitioners submits that in the instant case, the petitioner had already submitted application on 29.11.1995 for withdrawal of voluntary retirement application earlier moved by him on 9.8.1995, i.e. admittedly prior before the expiry of the date of giving the notice i.e. 30.11.1995. In support of his contention, learned counsel for the petitioner placed reliance on the judgment Balram Gupta v. Union of India and Anr. (1), wherein Hon'ble Supreme Court has held that 'voluntary retirement -Notice of, can be withdrawn at any time before retirement becomes effective notwithstanding any rule providing for obtaining of specific approval of the concerned authority as condition precedent to withdrawal of notice-Authority not entitled to refuse to grant approval for the withdrawal in absence of any reason showing disturbance in administrative set up or arrangement as a result of such withdrawal1. Hon'ble Supreme Court in para 12 & 13 of this judgment further observed as under :-
'In this case the guidelines are that ordinarily permission should not be granted unless he officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal request of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this the respondent is to blame and not the appellant.'
'We hold, therefore, that there was no valid reason for withholding the permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests form the staff members and rela-tions which changed his attitude towards continuing in government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty ; a certain amount of flexibility is required, and if such flexibility does not jeopardize government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways 'to ease out' uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees.'
7. Learned counsel for the petitioner further placed reliance on the judgment rendered in the case of J.N. Srivastava v. Union of India and Anr. (2), wherein Hon'ble Supreme Court held that 'Service law-Retirement-Voluntary retirement- Notice-Withdrawal of, before intended date of retirement -Permissibility-Three month's notice for voluntary retirement given on 3.10.1989 which was to come into effect from 31.1.1990-Notice accepted by the Government on 2.11.1989 and thereafter the appellant withdrawing notice vide his letter dated 11.12.1989-Withdrawal, held, permissible because it was made before 31.1.1990 -Further held, even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement- The appellant therefore deemed to have continued in service till his superannuation age' and further held that 'Service Law- Back Wages- 'No work, no pay'- When not applicable-Appellant deemed to have continued in service till his superannuation age because his request for withdrawal of notice for voluntary retirement was wrongly rejected-Appellant, held, entitled to arrears of salary and other emoluments including increments because he was ready and willing to work-Plea of 'no work, no pay' rejected- Pensionary benefits also directed to be revised accordingly subject however to adjustment of amounts already paid.'
8. Hon'ble Apex Court in para 3 of the judgment observed as under:-
'The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3.10.1989 which was to come into effect from 31.1.1990. It is true that this proposal was accepted by the authorities on 2.11.1989. But thereafter before 31.1.1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11.12.1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26.12.1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31.1.1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India. In view of the aforesaid decision of this Court it cannot it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31.1.1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26.12.1989 and when the retirement came into effect on 31.1.1990 the appellant had no choice but to give up the charge of the post of avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26.12.1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31.1.1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of 'no work, no pay', this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work alter 31.1.1990. The respondents are directed monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall sent the same to the respondents at the earltest.'
9. Mr. S.P. Sharma, learned counsel for the petitioners also placed reliance on the judgment rendered in the case of Union of India and Anr. v. Wing Commander T. Parthasarathy (3), wherein Hon'ble Apex Court has held that 'Service Law- Resignation- Withdrawal of-Right to-Where resignation to have effect from a future date, it can be withdrawn at any time before that date- Where withdrawal was sought even prior to acceptance of the resignation which was to be effective from a future date, in absence of any contrary statutory provision or rule, held, right to withdraw cannot be denied merely on the basis of any policy decision of Govt. or certificate issued by the resigner himself at the time of tendering the resignation stating that he was aware that he could not later seek cancellation of his application for resignation and further held 'Jurisprudence-Legal right- A substantive legal right cannot be denied to a person merely on the basis of some policy decision of Govt. or any certificate issued by him acknowledging a particular position which has no legal sanctity.'
10. Hon'ble Apex Court in para 9 of the judgment further observed as under :-
'The reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made of premature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for premature retirement before it ever became operativeand effective and effected termination of his status and relation with the Department. When the legal position is that much clear it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inherent in him and available in law. No such deprivation of a substantive right of a person can be denied except on the basis of any statutory provision or rule or regulation. There being none brought to our notice in this case, the claim of the appellants cannot countenanced in our hand. Even that apart, the reasoning of the High Court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so- called policy decision also cannot be said to suffer any conformity (sic infirmity) in law, to warrant our interference.'
11. In the instant case, the petitioner seeks voluntary retirement vide its application dated 9.8.1995 as under the prevailing circumstances and under mental distress, he feel himself unable to continue in service. After lapse of some period when his mental state was settled down and he was well advised by his colleagues and elders, he moved another application dated 29.11.1995 for withdrawal of his voluntary retirement application which was received in the office of the respondent on the same day. In view of the provisions of Rule 244(1) 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. Hon'ble Apex Court in the case of Balram Gupta v. Union of India and Anr. (supra) has categorically stated that notice can be withdrawn at any time before retirement becomes effective notwithstanding any rule providing for obtaining of specific approval of the concerned authority as condition precedent to withdrawal of notice, Authority not entitled to refuse to grant approval for the withdrawal in absence of any reason showing disturbance in administrative set up or arrangement as a result of such withdrawal. Here in the instant case, the application for withdrawal was only refused by the respondent on the ground that since the respondent has accepted his voluntary retirement application dated 9.8.1995 on 28.11.1995, therefore, now the application for withdrawal of voluntary retirement application cannot be accepted. No reason whatsoever has been stated in the rejection order of the application moved by the petitioner. The principle and ratio decide by the Hon'ble Supreme Court is fully applicable to the instant case. Since the petitioner, during the pendency of the writ petition had expired on 29.11.2000 prior to attaining the age of superannuation and since he has already moved an application for withdrawal of voluntary retirement application and that has not been decided, in such eventuality, principle of 'no work no pay' would not apply in the instant case as held in the case of J.N. Srivastava v. Union of India and Anr. by the Supreme Court that appellant deemed to have continued in service till his superannuation age because his request for withdrawal of notice for voluntary retirement was wrongly rejected. Hon'ble Supreme Court further directed that pensionary benefits to be revised accordingly subject however to adjustment of amounts already paid. Since the Hon'ble Supreme Court has permitted the withdrawal of voluntary retirement application before intended date of retirement as already discussed above, no reason has been given by the respondent as to why approval was not given to the petitioner for withdrawing his voluntary retirement application. In the judgment rendered in the case of Union of India v. Wing Commander T. Parthasarathy Hon'ble Supreme Court has considered the judgment of Balram Gupta v. Union of India and Anr. (supra), and held that 'where resignation to have effect from a future date, it can be withdrawn at any time before that date- where withdrawal was sought even prior to acceptance of the resignation which was to be effective from a future date, in absence of any contrary statutory provision or rule and right to withdraw cannot be denied merely on the basis of any policy decision of Govt. or certificate issued by the resigner himself at the time of tendering the resignation stating that he was aware that he could not later seek cancellation of his application for resignation. In view of the provisions of Rule 244(1 )-F as well as law laid down by Hon'ble Supreme Court referred above and in the facts and circumstances, I deem it proper to accept the writ petition and set aside the order dated 28.11.1995 and petitioner's husband deemed to be continued in service till 29.11.2000 he expired prior to attaining the age of superannuation. Respondents are further directed to give the retiral benefit in accordance with the provisions of law considering him continued in service till be expired i.e. 29.11.2000 and to make available all the requisite monetary benefit to the petitioner as per the present order within a period of three months from the date of the receipt of this order. It is further directed that the respondents may settle the family pension in accordance with the provisions of law not later than three months. No order as to costs.