USMAN KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts giving rise to this writ petition are as follows: The petitioner entered into service on February 11, 1956 as a Foot Constable under the respondents. By July 20, 1981 he had completed 20 years of qualifying service and had also attained 45 years and thus had become eligible to seek voluntary retirement on a proper notice being served on the appointing authority. Such a notice was served by him on July 20, 1981 and the term of the notice expired on October 20, 1981. However, it appears that prior to such a notice the petitioner was tried for criminal offence by the Special Judge, Anti-Corruption Department, Jaipur. During the course of this trial, the petitioner was placed under suspension. The petitioner was acquitted by the Special Judge on February 21, 1977. Consequently, he was re-instated by order dated April 12/13, 1977 (Ex. 1 ). The petitioner joined the duties in pursuance of the said order. The State filed on appeal which was dismissed on November 22, 1978 as would be evident from the recital made by the D. I. G. , Bikaner in Ex. 9 (see page 46 of the paper book ).

(2.) IT appears that after the petitioner had resumed his duly, he fell ill on March 9, 1978. He sought leave and the same was granted and was extended from time to time. He was ordered to be examined by Medical Board on January 24, 1981. The Medical Board found him unfit for duty and hence the petitioner could not resume his duty. Recall letters were sent to the petitioner and the last of such letters was sent on February 18, 1982 but the petitioner did not join hisduty. Upon this the Superintendent of Police, Shri Ganganagar initiated disciplinary proceeding against the petitioner for wilful absence from duty: The Disciplinary Authority found that the petitioner had absented himself from duly since December 26, 1979 and he failed to join duties inspite of the re-call letter dated December 18, 1982. Upon such findings the Disciplinary Authority ordered discharge of the petitioner from service vide Ex. 4. The petitioner went in appeal to D. I. G. , Bikaner, who set aside the order of the Disciplinary Authority on the ground that the same was against law. Thereafter, the Superintendenl of Police, Shri Ganganagar passed another order Ex. 7, whereby he ordered dismissal of the pelitioner form service. Once again the petitioner went in appeal before the D. I. G. , Bikaner. The D. I. G. by order Ex. 9 modified the order of dismissal of the petitioner and ordered compulsory retiremenl of the petitioner with effect from June 28, 1984. By the present writ petition, the petitioner challenges the validity of the aforesaid orders and submits that once the petitioner had given notice for voluntary retiremenl and the period of notice had expired, the petitioner automatically stood retired with effect from October 20, 1981, inasmuch as the Disciplinary Authority did not comply, with the provisions of Section 244 (1) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules ). It was averred that on the admitted facts of the case, the petitioner could not have resumed duties unless a fitness certificate was issued to him. The Medical Board had found him unfit for continuing in service. In absence of that certificate, the only alternative remedy to the petitioner was to seek voluntary retirement as he had already completed 20 years of service. The procedure prescribed under Rule 244 (1) of the Rules was mandatory and since the provisions of that rule were not fulfilled, the petitioner's notice became effective and, therefore, no departmental proceedings could have been taken against the petitioner after he had already retired from service with effect from October 20, 1981. Upon such pleas, the petitioner claimed settlement of his post-retirement claims with effect from October 20, 1981.

(3.) THE writ petition has been opposed on behalf of the respondents. The learned Dy. Govt. Advocate appearing on behalf of the respondents submits that the provisions of Rule 244 (1) of the Rules are merely directive and in this case, a substantial compliance of the Rules has been made, inasmuch as the petitioner himself admitted in his memo of appeal Ex. 8 that his application for voluntary retirement had been dismissed. It is submitted that it was not necessary for the Superintendent of Police to communicate to the petitioner in writing the fact of refusal of his application, when such fact was already within the knowledge of the petitioner.