Deen Dayal Pareek Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - according to the petitioner the above referred application for voluntary retirement was moved by him under mental tension due to the adverse family circumstances but after sometime he realised that it is not in his interest as well as in the interest of his family, therefore, he moved another application dated july 27, 1992 to the commandant for withdrawing the said application.p.k. tiwari, j. 1. in short, the facts of the case are that the petitioner was working as office assistant in the office of commandant, police training school, kishangarh (ajmer) in the year 1992. the petitioner moved an application dated may 1, 1992 under rule 244(1) of the rajasthan service rules, 1951 (hereinafter to be referred as the rules) for voluntary retirement with effect from july 31, 1992. his application was forwarded by the commandant to the respondent no. 2, the appointing authority. according to the petitioner the above referred application for voluntary retirement was moved by him under mental tension due to the adverse family circumstances but after sometime he realised that it is not in his interest as well as in the interest of his family, therefore, he moved another application dated july 27, 1992 to the commandant for withdrawing the said application. this application was also forwarded by the commandant to the respondent no. 2 with his letter by a special messenger which reached the office of respondent no. 2 on july 28, 1992 but under the orders of the respondent no. 2 the petitioner was given voluntary retirement on july 31, 1992 on the basis of his application dated may 1, 1992.2. the petitioner's case is that, before the date of voluntary retirement i.e., july 31, 1992 he submitted application for withdrawal of his previous application, but it was not considered and no order was passed by the respondent no. 2, it amounts to inaction on the part of the respondent no. 2. the petitioner was entitled to withdraw his application for voluntary retirement before july 31, 1992. he has placed reliance on the judgment of this court reported in brij mohan v. state of rajasthan and ors. 1995 (1) rlr 271.'a bare reading of clause (f) of sub-rule (1) of rule 244 of the rules 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'.3. according to learned counsel for the petitioner, no order was passed by respondent no. 2 on the application of the petitioner dated july 27, 1992 which reached the office of respondent no. 2 on july 28, 1992.4. the case of the non-petitioner is that the application for voluntary retirement submitted by the petitioner was allowed, and order was passed by non-petitionerno. 2 on june 16, 1992, therefore, no illegality has been committed by the respondents. once the application for voluntary retirement was submitted by the petitioner, and accepted by the appointing authority, the same can only be withdrawn with the permission of the appointing authority. in this case appointing authority refused to grant permission to withdraw the application for voluntary retirement, therefore this petition is not maintainable.5. in my opinion, the present case is covered by the judgment of this court referred to above. it is not disputed that the petitioner had submitted application for withdrawal of his application for voluntary retirement on july 27, 1992, which reached the office of respondent no. 2 on july 8, 1992. there is no basis that appointing authority rejected that application, because no such order was communicated to the petitioner and not even filed in this court. therefore, it amounts to inaction on the part of the respondents and has resulted in injustice to the petitioner.6. therefore, this writ petition is allowed, the order of the respondent no.2 dated june 19, 992 retiring the petitioner with effect from july 31, 1992 and order by which the petitioner was relieved on july 31, 1992 are hereby quashed. petitioner shall be deemed to have continued in service without any break with the right of fixation, seniority and other consequential benefits. the respondents are also directed to issue posting order immediately. the petitioner will not get any salary form august 1, 1992 till date of judgment, because petitioner filed this petition without giving notice to the respondent. this period will be treated as leave without pay, or any type of leave, applied by the petitioner. there is no order as to costs.