JUDGMENT 1. - The petitioner had joined the Government service as Sub Inspector, Police when he was appointed as such by order dated 21.12.1955 issued by the Inspector General of Police. He was dismissed from service by the Dy. Inspector General of Police, Ajmer Range, Ajmer vide order dated 12.5.1961. Appeal preferred by the petitioner was accepted and de novo inquiry was held. He was again dismissed from service on 27.11.1962 by the Inspector General of Police. Appeal preferred by the petitioner before the Government as well as the review preferred by him before the Governor under Rule 34 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 were dismissed. The petitioner filed a suit in the court of Additional Munsif & Judicial Magistrate No. 2, which was decreed and decree for reinstatement was passed by the trial court. The State Government perferred an appeal before the learned District Judge. The appeal was allowed and the matter was remanded to the trial court, against which the petitioner filed a second appeal, which was allowed by this court on 23.10.1986. The decree passed by the learned District Judge was set aside and that passed by the trial court was restored. On account of non-compliance of the judgment and decree passed by this court, the petitioner filed a contempt petition before this court. 2. During the pendency of the contempt petition, the petitioner received letter on 20.10.1987 and 17.10.87 of the Superintendent of Police, Ajmer calling upon the petitioner to join his duty within 7 days, failing which he will be treated to be voluntarily absent. The petitioner submitted an application dated 24.10.1987 before the Governor of Rajasthan as well as the Director General of Police Rajasthan Jaipur for seeking voluntary retirement under Rule 244(1) of the Rajasthan Service Rules, 1951. The Deputy Inspector General of Police (Head Quarters) informed the petitioner vide letter dated 17.11.1987 that he should meet the Dy. Inspector General of Police, Ajmer Range, Ajmer, in connection with his retirement. The Dy. Inspector General of Police, Ajmer Range, Ajmer wrote a letter dated 9.3.88 to the petitioner asking him to contact the Dy. Inspector General of Police (Head Quarters). No order was however communicated to the petitioner either accepting or rejecting his application for voluntary retirement. On the other hand, a memorandum dated 16.4.1988 was served on the petitioner under the orders of the Dy. Inspector General of Police (Head Quarters). No order was however communicated to the petitioner either accepting or rejecting his application for voluntary retirement. On the other hand, a memorandum dated 16.4.1988 was served on the petitioner under the orders of the Dy. Inspector General of Police, Ajmer Range, Ajmer proposing inquiry against him under Rule 16 of 1958 Rules. 3. The petitioner has alleged that this action has been initiated against him because of mala fides of the respondents who have felt annoyed against the petitioner on account of various orders passed by the court in the contempt proceedings initiated by the petitioner for non-compliance of the judgment and decree passed by the court. The petitioner has prayed that the respondents be ordered to accept the application of the petitioner for voluntary retirement filed by him on 24.10.1987; he should not be compelled to join his duty and the order dated 16.4.1988 passed by the D.I.G. be quashed and further proceedings may not be allowed to continue in pursuance of the aforesaid charge sheet. 4. In reply to the show notice issued by the Court, the respondents have stated facts relating to the provious litigation with the petitioner. The respondents have stated that vide letter dated 3.7.87 the petitioner was directed to report for duty at G.R.P., Ajmer. By another order dated 4.9.1987 his posting was done in Ajmer district instead of G.R.P. Ajmer. By notice dated 11.9.1987, the petitioner was informed that he has not reported for duty. He was directed to immediately report for duty. According to the respondents, the petitioner had refused to accept these letters. The petitioner has filed detailed rejoinder to this reply and has placed on record the order dated 29.7.89 by which he was retired w.e.f. 31.7.1989 on attaining the age of superannuation. 5. Learned counsel for the petitioner has argued that in terms of the provisions contained in Rule 244(1) the petitioner stood automatically retired after expiry of the period of 3 months from the date of his application dated 24.10.1987 and therefore, no disciplinary action could be taken against him under. the provisions of 1958 Rules. Dr. M.M. Tiwari argued that Rule'244 confers right on the employer as well as employee in the matter of retirement. The employer can retire Government Servant by giving him 3 months' notice or pay in lieu thereof. the provisions of 1958 Rules. Dr. M.M. Tiwari argued that Rule'244 confers right on the employer as well as employee in the matter of retirement. The employer can retire Government Servant by giving him 3 months' notice or pay in lieu thereof. The employee has corresponding right to seek voluntary retirement by giving 3 months' notice. He argued that if no communication is served on the Government servant to the contrary within a period of notice, the voluntary retirement is automatic. It becomes effective without any order of the competent authority unless within the period of notice, an order in writing is served upon the Government servant rejecting his application for retirement. According to Dr. Tiwari if the petitioner is treated to have automatically retired after the expiry of 3 months from the date of applicatir n, no disciplinary action can be initiated against him under the Rules of 1958. According to him, the charge sheet issued to the petitioner vide memorandum dated 16.4.1988 is, therefore, without jurisdiction and is liable to be quashed as such. 6. Shri Ashok Parihar, learned Additional Govt. Advocate argued that theconduct of the petitioner clearly goes to show that he wanted to avoid joining of the service and wanted to take advantage of the judgment and decree passed by the court. He was time and again told to report for duty, but he failed to do so. Shri Parihar argued that the petitioner should not be allowed to take advantage of the fact that he had not reported for duty inspite of posting order. There was every justification for initiating inquiry under 1958 Rules against the petitioner. 7. He was time and again told to report for duty, but he failed to do so. Shri Parihar argued that the petitioner should not be allowed to take advantage of the fact that he had not reported for duty inspite of posting order. There was every justification for initiating inquiry under 1958 Rules against the petitioner. 7. Rule 244(1) of the Rajasthan Service Rules, 1951 reads as under: 244(1) "Optional Retirement on completion of 20 years qualifying service.-(a) Government servant may, after giving atleast 3 months' previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice : Provided that it shall be open to the Appointing Authority to withhold permission to retire & Government servant : (i) who is under suspension; (ii) in whose case disciplinary proceedings are pending or contemplated for imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service; (iii) in whose case prosecution is contemplated or may have been launched in a court of law; (b) A Government servant who has given notice for seeking retirement under clause (a) of this sub-rules, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice. (c) If a Government servant seeks retirement under this sub-rule while he is on leave not due, without returning to duty, the retirement shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him. (d) A Government servant who seeks voluntary retirement under clause (a) of this sub-rule shall be entitled to a weight age of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. (d) A Government servant who seeks voluntary retirement under clause (a) of this sub-rule shall be entitled to a weight age of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. The grant of weight age up to 5 years shall, however, be subject to the following conditions: In respect of Government servants governed by pension rules: (i) The service qualifying for retirement benefits shall be enhanced by the addition of five years in such cases. The resultant length of service after taking into account the addition of notional service shall in no case be more than 33 years-qualifying service or the qualifying service the Government servant concerned could have counted had he retired on attainment of superannuation age, whichever is less. (ii) In cases where qualifying service is increased under (i) above, the emoluments as defined in Rule 250(C) of the Rajasthan Service Rules which the Government servant was receiving immediately before the date of retirement shall be taken into account for the purpose of calculation of pension and gratuity. (iii) In respect of Government servants governed by the Contributory Provident Fund Scheme:- Government contribution, (bonus and special contribution) shall be enhanced by the amount which would have accrued by the addition of five years notional service. (iv) The notional contribution shall be added on the basis of the amount of subscription made immediately before the date of retirement without subscribing to the fund on or after the date of his retirement. (v) The resultant increase in the aforesaid manner shall in no case be more than the contribution (bonus and special contribution) which could have been credited in his provident fund account had he retired on completing 33 yeas qualifying service or on attaintment of the age superannuation, whichever is less. (vi) The benefit of five years, notional qualifying service mentioned in this clause shall not be admissible to a Government servant who is retired under sub-rule (2) of this Rule. (e) A Government servant who gives notice of voluntary retirement under clause (a) of sub-rule (1) shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 20 years qualifying service for pension. (e) A Government servant who gives notice of voluntary retirement under clause (a) of sub-rule (1) shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 20 years qualifying service for pension. (f) A Government servant may, with the approval of the Appointing Authority, withdraw the notice given under clause (a) of this sub rule provided the request for such withdrawal is made before the expiry of the notice. (g) The authority competent to retire a Government servant may, in deserving cases, accept the notice contemplated under clause (a) of this sub-rule for a period of less than 3 months with the concurrence of the Government in the Finance Department." 8. A perusal of the aforesaid provisions clearly shows that a Government servant has an option to seek retirement from service after giving at least 3 months previous notice to the appointing authority. This is possible only after completion of 25 years or attaining the age of 45 years whichever is earlier. Proviso to Rule 244(1) (a) says that the appointing authority has discretion to withhold permission to retire a Government servant where he is under suspension or any discilinary proceedings are pending or contemplated for imposition of a major penalty and the disciplinary 'authority feels that penalty of removal or dismissal might be imposed on such Government servant, or in a case where a prosecution is contemplated or has been launched against the Government servant. Clause (b) of Rule 244(1) provides that the Government servant who has given notice for seeking retirement under clause (a) may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the competent authority and served upon the Government servant before the expiry of the period of the notice. Proviso to Clause (a) and Clause (b) have to be read together. True it is that the appointing authority has been given discretion to refuse permission to Government servant to retire on the basis of his notice under Rule 244(1)(a), but this discretion has to be exercised by the competent authority by passing an order in writing and serving that order on the Government servant before the expiry of the period of notice. These two conditions have to be fulfilled by the competent authority before it can forestall retirement of a Government servant on the expiry of 3 months notice given under Rule 244(1) (a). Admittedly in the present case, no order had been passed by the competent authority refusing permission to the petitioner to retire from service in pursuance of his application. Obviously, the question of serving of such an order on the petitioner within this period could never arise. The respondents by their silence allowed the time to pass. After lapse of notice period of 3 months the retirement of the petitioner became effective automatically on 24th Janaury, 1988. The relationship of Master and Servant came to an end on that day except for purposes of pension, gratuity and other retirement benefits. 9. The argument of the learned Additional Government Advocate is that since the petitioner has not joined duty and therefore, he could not submit application for voluntary retirement, is without any merit. It has not been the case of the respondents that the petitioner was not in service. If that was their argument, the charge sheet dated 16.4.1988 would have been quashed without a moment's hesitation because a charge sheet could be served only on a Government servant who is in service. 10. In the case of the petitioner, since he stood retired on 24.1.1988, initiation of proceedings under Rule 16 of 1958 Rules is not at all warranted. Rule 14 of 1958 Rules postulates that any of the penalties specified therein can be imposed on a Government servant. Since the petitioner stood retired on 16.4.1988, no action could have been initiated against the petitioner under Rule 16 of 1958 Rules. As a legal corollary any further proceedings in pursuance of the charge sheet dated 16.4.1988 is without jurisdiction. 11. The only provision, under which action can be taken against a Government servant who has already retired from service and against whom departmental proceedings are not pending on the date of his retirement, is one contained in Rule 170 of 1951 Rules. However, for taking action under that Rule, the conditions precedent, namely, sanction of the Governor and the nexus of the charge sheet with the incident with reference to a period of 4 years prior to the point of time of service of charge sheet, has to be established. However, for taking action under that Rule, the conditions precedent, namely, sanction of the Governor and the nexus of the charge sheet with the incident with reference to a period of 4 years prior to the point of time of service of charge sheet, has to be established. In the present case, it has not been argued by Shri Parihar, and in my opinion rightly so, that the charge sheet has been issued with the previous sanction of the Governor. Obviously, therefore, the action initiated under this charge sheet cannot be treated valid with reference to Rule 170 of 1951 Rules. 12. Consequently, this writ petition is allowed. It is declared that the petitioner stood retired from service on 24.1.1988 and therefore, no departmental inquiry could be initiated against him under Rule 16 of 1958 Rules vide memorandum dated 16.4.1988. The said memorandum as well as the charge sheet and also the proceedings taken thereafter are hereby quashed. The petitioner shall be entitled to all retirement benefits like pension, gratuity, provident fund etc. on the basis of his automatic retirement w.e.f. 24.1.1988. 13. Parties are left to bear their own costs.Petition allowed. *******