SHAH AZAD SIDDIQUI Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the State.

(2.) THE question for consideration presently is, if the petitioner shall be deemed to have retired from Government service in pursuance of his application for voluntary retirement dated 16.3.1998 under Rule 74(b)(i) of the Bihar Service Code upon expiry of three months ' notice period i.e. 30.6.1998. If that be so, can the authorities by not communicating express acceptance of the same contend that the petitioner continued in service and, therefore, a decision to initiate departmental proceedings could be initiated against him on 13.4.2000 and memo of charges be issued on that basis to him on 8.7.2004 on the premise that he continued in Government service. Rule 74(b)(i) reads as follows: - "Notwithstanding anything contained in the preceding sub -rule a Government servant may, after giving at least three months ' previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice: Provided that no Government servant under suspension shall retire from service except with the specific approval of the Government." On the date that the petitioner submitted this request for voluntary retirement he was neither under suspension and no departmental proceedings were pending against him and neither was that the position in the three months period contemplated under the Rules.

(3.) LEARNED counsel for the petitioner has relied upon a decision of the Supreme Court reported in Union of India and Others V/s. Sayed Muzaffar Mir, 1995 Supp1 SCC 76 to submit that the denial of automatic termination of the relationship of master and servant on expiry of the notice period of three months for voluntary retirement under the Rules could be denied only in case when Government servant was under suspension or was suspended during the notice period. That the Government was always at liberty to deny this request for voluntary retirement in between this period of three months, but if the Government did not do so, the effect would be automatic cessation of master and servant relationship after the expiry of the notice period. Under consideration was Rule 1802(B) of the Indian Railways Establishment Code which permitted an employee to seek retirement by three months ' prior notice unless the concerned employee be under suspension and which was also interpreted to include a denial of such right during the notice period.