S C MATHUR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts of the writ petition in brief are that the petitioner was initially appointed on 7. 2. 1967 to the post of Civil Assistant Surgeon in the respondent Department. THE date of birth of the petitioner is mentioned as 1. 10. 1940. In normal course, he was to retire w. e. f. 30. 9. 1998, but on 29. 12. 1994, he submitted an application before respondent No. 3 for seeking voluntary retirement to be effective from 31. 3. 1995, on which date when he did not receive information from respondents he relinquished the charge of the post of Medical Officer, but later on the department on 29. 5. 1995 informed to the petitioner that his notice for seeking voluntary retirement was not addressed to the appointing authority, therefore, it was not a legal notice in the eye of law. THE petitioner was directed that in case he wants to voluntary retire, the notice should have been given to the appointing authority and he was directed to take charge. In compliance thereof, he joined the duty on 7. 6. 1995. After joining the duty, he was promoted as Deputy Director, Zone Jaipur to which post he joined on 17. 6. 1995 and on the same day, he submitted three months' notice for seeking voluntary retirement for the post of Deputy Director w. e. f. 30. 9. 1995. A reminder was also sent to the department on 16. 9. 1995 to retire him on 30. 9. 1995. After expiry of period of notice, he relinquished the charge from the post of Deputy Director, Medical and Health Services, but the respondents sent him a communication alongwith letter informing him that his voluntary retirement cannot be accepted under Rule 244 (1) of the Rajasthan Service Rules, 1951 (for short 'the Rules of 1951' hereinafter) because of serious complaints pending with the Lokayukat, Jaipur and the petitioner was asked to join the duty on the post of Deputy Director immediately. THE communication dtd. 29. 9. 1995 and telegram dated 1. 10. 1995 sent by the respondents are illegal because he has already relinquished his charge on the post of Deputy Director on 30. 9. 1995, so he prayed to quash the letter dtd. 29. 9. 1995 and telegram dtd. 1. 10. 1995.

(2.) A reply to the writ petition has been filed on behalf of the respondents. After admitting the factual aspect for seeking voluntary retirement of the petitioner it has been submitted that respondents department have taken a decision on 20. 9. 1995 not to accept the voluntary retirement notice submitted by the petitioner under Rule 244 (1) of the Rules of 1951 as there was serious complaints pending with the Lokayukt and the departmental enquiry was under contemplation against him. The decision not to retire the petitioner voluntarily, had already been taken on 20. 9. 1995, before expiry of period of notice of the petitioner seeking voluntary retirement, but the petitioner failed to join the service inspite of letter sent to him. Since serious complaints were pending in the department, the Department was contemplating to initiate disciplinary proceedings against the petitioner and had requested him to join the duty which he failed to do. Thus, the decision not to retire him voluntarily is proper and legal.

(3.) ON the plain reading of the rule, it would appear that the request of the government servant to voluntarily retire after completing the qualifying service or attaining the qualifying age is not binding on the Government and in situations contemplated in clauses (i), (ii) or (iii) of the proviso, the appointing authority may reject the request. The submission of notice for seeking voluntary retirement can be termed as an offer and the respondents have right to reject the voluntary retirement request. In case any of the situation contemplated in the above cases exists, the respondents have to indicate or sent the communication of its decision to the petitioner well before expiry of period of notice. The fact that the government servant if under suspension or is facing enquiry or proceedings are contemplated against him exists, the request for seeking voluntary retirement can be turned down but it does not mean that the Government can withhold its decision. The respondents may withhold the permission, but it cannot withhold the decision. The discretion of withholding the permission is entirely with the respondents but the decision of not to retire voluntarily has to be taken and be communicated before expiry of period of notice.