UPENDRA ARVINDEKAR Vs. STATE OF M P

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioner calling in question the order dated 29-7-2002 passed by the District and Sessions Judge, Neemuch whereby the prayer of the petitioner for withdrawal of his application/notice for voluntary retirement has been rejected and the order passed by the Registrar General, High Court of Madhya Pradesh on 13-9-2002, rejecting the appeal of the petitioner against the aforesaid order.

(2.) It is mainly contended by the learned counsel for the petitioner that he was working in the establishment of District and Sessions Judge, Neemuch and was promoted upto the post of Upper Division Clerk on 3-6-1997. It is contended by the petitioner that looking to his family circumstances, he has submitted an application for voluntary retirement on 28-3-2002. It was categorically stated by the petitioner that the voluntary retirement be granted to him w.e.f. 31-7-2002. The application filed by the petitioner is marked as Annexure P/l filed along with the writ petition. It is contended that without even waiting for expiry of the notice period of three months, the District and Sessions Judge, Neemuch in hasty manner has accepted this application for voluntary retirement and passed the order on 11-4-2002. Copy of the order on application is marked as Annexure P/2. It is contended by the petitioner that he had made the application for granting him permission to withdraw his notice/application for voluntary retirement on 24-5-2002 i.e. much much before 31-7-2002 the date from which his voluntary retirement was to be given effect to, but such prayer of the petitioner was not considered properly and vide order dated 29-7-2002, it was communicated that the application submitted by the petitioner received on 27-5-2002 was rejected. The appeal was preferred by the petitioner against the said order before the Registrar General of this Court, but the same has also been dismissed vide order dated 1-7-2003. Resultantly, this writ petition is required to be filed.

(3.) The main contention of the petitioner is that Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules) specifically contemplates a condition that the notice of retirement is required to be given by any employee. Such notice is to be considered by the appropriate competent authority and necessary orders are required to be passed. However, before effective date of such notice, the same can be withdrawn. It is vehemently contended by the learned counsel for the petitioner that since earlier to the effective date the notice of voluntary retirement was withdrawn, in view of the law laid down by the Apex Court in the case of J. N. Shrivastava vs. Union of India and another, 1998 9 SCC 559, the petitioner was entitled to be permitted to withdraw the notice of voluntary retirement and even if order was passed accepting such notice of voluntary retirement he was to be allowed to continue on the post till he attain the age of superannuation. It is contended by the learned counsel for the petitioner that the law laid down by the Apex Court specifically provides that before the effective date of notice of voluntary retirement was reached, the employee concerned had a right to withdraw his voluntary retirement proposal, even if it was accepted by the competent authority before the effective date. Thus, in view of this, it is contended that the order passed by the authorities are liable to be quashed and the petitioner is entitled to continue on the post.