PHILOMINA DICKSON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition has been preferred under Article 226 of the Constitution of India, inter alia with a prayer to quash and set aside order dated 30 -11 -2009, whereby the petitioner has been made to retire voluntarily without considering her request for withdrawal of voluntary retirement before the effective date. It is further prayed that the respondent -Authorities may be directed to allow the petitioner to continue in active service till her actual date of superannuation on 30 -9 -2010, with salary and other consequential benefits.

(2.) Briefly stated, the facts of the case are that the petitioner initially joined services as English Typist in the year 1973. She was promoted as Senior Clerk in the year 1991 and since then, the petitioner has been working on that position. As the petitioner had completed more than 36 years of service, she was entitled for voluntary retirement under the Gujarat Civil Services (Pension) Rules, 2002, hence, she made an application for voluntary retirement on 12 -8 -2009 to respondent No.3, requesting that she may be permitted to retire voluntarily, with effect from 30 -9 -2009. However, upon re -consideration the petitioner changed her mind and gave another application dated 7 -11 -2009 to respondent No.3, stating therein that she is withdrawing her application for voluntary retirement dated 12 -8 -2009, as she is now not desirous of taking voluntary retirement due to a change in her personal circumstances. However, respondent No.3 passed order dated 30 - 11 -2009, accepting the application of the petitioner dated 12 -8 -2009, and directing that the second application of the petitioner dated 7 -11 -2009 withdrawing the earlier application, be filed. Aggrieved by this action of respondent No.3, the petitioner has approached the Court by filing the present petition.

(3.) Mr.Paresh Upadhayay, learned Advocate for the petitioner has submitted that the petitioner had sought voluntary retirement with effect from 30 -11 -2009, by application dated 12 -8 -2009. Before the effective date, i.e. 30 -11 -2009, the petitioner had made the second application dated 7 -11 - 2009 withdrawing the earlier application dated 12 -8 -2009. Respondent No.3 has taken into consideration both the applications of the petitioner dated 12 -8 -2009 and 7 -11 -2009, respectively, while passing the impugned order dated 30 -11 -2009, but instead of passing any order on the latter application withdrawing the earlier application for voluntary retirement, the earlier application has been accepted and the latter application has been directed to be filed. It is forcefully contended by the learned Advocate for the petitioner that, it is a settled position of law that the application for voluntary retirement can be withdrawn at any time before it becomes effective. As the petitioner has withdrawn the application for voluntary retirement before 30 -11 -2009, the date on which the voluntary retirement would have become effective, the action of the respondent in thrusting voluntary retirement upon the petitioner, without considering the application for withdrawal, is illegal, arbitrary and against the settled position of law. It is further urged that in the impugned order, respondent No.3 has merely stated that the petitioner is permitted to retire voluntarily with effect from 30 -11 -2009, in spite of the fact that on the date of passing of the impugned order, the subsequent application for withdrawal of voluntary retirement had already been received by the said respondent, as is clear from the said order, itself. Without passing any order thereupon, the application dated 7 -11 -2009 for withdrawal of voluntary retirement has been directed to be filed, which action is against the Authority of law. In support of the above submissions, the learned Advocate for the petitioner had placed reliance upon the following judgments: -