NAIK MOHAN LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India, the petitioner has been praying for writ of mandamus directing quashing of the order dated 21.12.1992 rejecting the petitioner's application for withdrawal of the voluntary retirement notice and ordering the petitioner to be in continuous service.

(2.) The say of the petitioner is that the petitioner initially joined 16 Punjab Armed Police on 26.11.1966 and was allotted No.16/293 and after undergoing basic training at Jalandhar Cantt., he joined duty in 21, Border Security Force (in short, B.S.F.) at Dera Baba Nanak on 7.9.1967; that during the service period, the petitioner passed the departmental tests conducted from time to time and was also transferred from one station to another and that on 1.3.1992, the petitioner was performing the duty of Naik in 96 Battalion, B.S.F., Srinagar;- that in December, 1991, the wife of the petitioner fell seriously ill due to some internal female disease and there was no male member to attend to the ailing wife of the petitioner; that an application seeking grant of 60 days earned leave w.e.f.8.1.1992 was submitted; that the leave was not sanctioned and during this period, the condition of the petitioner's wife deteriorated further; that the petitioner was forced to submit a notice dated 1.3.1992 seeking voluntary retirement on the ground that his domestic circumstances compelled him to seek voluntary retirement; that the respondents accepted the notice seeking voluntary retirement w.e.f. 31.5.1992(A.N.) and for three months' notice, respondent No. 3, granted 79 days earned leave and 9 days half pay leave w.e.f. 5.3.1992 to 31.5.1992 and also stating that this leave period would be leave prior to retirement and would run concurrently specifically stating that the petitioner would retire w.e.f. 31.5.1992 (A.N.) meaning thereby that the applicant was in service prior to 31.5.1992 for all intents and purposes; that the petitioner's wife responded to the treatment and started improving; that on 21.3.1992, the petitioner submitted an application addressed to respondent no.2 for withdrawal of the voluntary retirement notice; that vide letter dated 31.3.1992, the Deputy Inspector General, B.S.F., Rajouri Sector, addressed to the Commandant, 96, Battalion, B.S.F. with a copy to the petitioner, directed the petitioner to report to the Unit first and then request for withdrawal of the voluntary notice; that the Commandant, 96 Battalion, B.S.F., vide letter dated 2.4.1992 directed the petitioner to report to Unit immediately for processing the withdrawal of his application; that the petitioner in his withdrawal application specifically showed his intention to join duty just after expiry of earned leave i.e. 31.5.1992 as by that time, his wife would fully recover; that the petitioner was under impression that he has sanctioned leave, so he can join on 1.6.1992; that as the petitioner did not hear anything from the respondents regarding his withdrawal application, then the petitioner again wrote on 2.5.1992 to the Commandant, 96 Battalion, B.S.F. for withdrawal of voluntary retirement notice; that by reply dated 14.5.1992, by the Commandant, 96 Battalion, the petitioner was again advised to report to the Unit immediately failing which no action will be taken on the application; that after the letter dated 14.5.1992 till his leave expired on 31.5.1992, the petitioner did not hear anything from any corner till 7.9.1992 when on this date, he received a letter dated 1.9.1992 from the Commandant with which he referred to two previous letters and directed by saying "you are once again advised to '. report to this Unit immediately for taking further necessary steps."; that on receipt of the said letter on 7.9.1992, the petitioner proceeded to the Unit and joined the Transit Camp at Jammu on 9.9.1992, as the traffic was blocked for Srinagar where the 96 Battalion Unit was located; that the petitioner left the Transit Camp on 23.9.1992 for advance party Srinagar and finally joined the Unit 96 Battalion on 24.9.1992, at Air Field Srinagar; that the petitioner remained in the Unit till 24.12.1992(A.N.) though during this period from 9.9.1992 to 24.12.1992, the petitioner was not paid the diet money, ration money, pay and also Government Uniform yet his presence was marked daily and that on 21.12.1992, the petitioner received the order dated 21.12.1992 from the Commandant rejecting the withdrawal application on the ground that he has submitted the application for withdrawal at a belated ; stage and also failed to rejoin the Unit as directed by the office several time. It is the rejection of withdrawal of voluntary retirement notice which is challenged in the present writ petition.

(3.) The respondents by filing counter-affidavit refuted the claim of the petitioner, inter alia, contending that the petitioner served notice requesting for voluntary retirement which was accepted by the Commandant and was to retire from service on the afternoon of I 25.10.1991; that he was granted 59 days LPR w.e.f. 28.8.1991 to 25.10.1991; that he was called back to the Battalion headquarters and his notice for voluntary retirement was withdrawn and he joined duty on 25.10.1991; that the petitioner-again requested for voluntary retirement on 1.3.1992. After an interview with the Commandant, his request was accepted and accordingly, he was to retire from service on 31.5.1992; this time also, he applied for LPR 79 days earned leave and 9 days half pay leave w.e.f. 5.3.1992 to 31.5.1992 (upto the date of retirement) was granted as LPR; that before proceeding on LPR, he had signed all his pension papers and accordingly, papers were submitted to PAO, BSF, New Delhi; that the petitioner served notice for voluntary retirement twice on his own and he has become liability for the Unit as well as for the Force; that his case for withdrawal of his notice for voluntary retirement was not recommended for consideration; that the petitioner proceeded on voluntary retirement w.e.f. 31.5.1992. It is further contended that the petitioner physically-reported in the Unit on 24.9.1992 and appeared before the Commandant; that he intimated his willingness to withdraw his notice of voluntary retirement with the conditions i) If his previous service is counted he is taken in the same rank i.e. as Naik; ii) If request for immediate transfer from 96 Battalion is accorded.