JUDGMENT 1. - The petitioner who is an employee of the State Bank of India having been voluntarily retired from services of the respondent Bank has moved this court by way of instant writ petition and has sought to challenge the impugned order of his retirement from Bank on various grounds as referred to herein below. The questions which arise for determination of this court briefly formulated are as under: (a) When there is a clear rule governing the service conditions of staff and officers of the State Bank of India in the matters relating to voluntary retirement and the circumstances under which an officer and other employees an opt for the same in respect of State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979 (for short "the DTC's Order of 1979") in accordance with which the petitioner who had exercised his option of voluntary retirement in pursuance of his application, dated 1.3.4.1988 and which was not replied by the respondent-bank within the statutory period of three months in violation of the Order of 1979, whether it was open to the respondent bank to have directed the voluntary retirement of the petitioner in pursuance of the impugned order, dated 30.9.1989 ? (b) Whether it was open to the respondent-hank that having known that the voluntary retirement sought by the petitioner which had been duly sanctioned by the competent authority and which fact is also borne out from relevant correspondence exchanged between the parties in this regard, the respondent-bank was competent enough to have passed the aforesaid impugned order ? (c) Whether the aforesaid impugned order of voluntary retirement passed by the respondent hank within the statutory-period of three months notice period can be said to have vitiated the said order merely on the ground that the petitioner's offer of voluntary retirement though accepted within the aforesaid period of the competent authority was not conveyed to the petitioner within three month's period as specified in his notice ? (d) Whether it is open to the petitioner to challenge the acceptance of his request for voluntary retirement by way of this writ petition before this court though he had withdrawn his earlier request before expiry of three months of notice period vide his letter, dated 1.3.10.1988; whereas his subsequent request in this regard which was made w.e.f. 15.6.1989, was administratively approved and sanctioned by the Deputy Managing Director (Personnel & Systems), respondent No. 3 within the statutory period of three months as referred to above on 28.8.1989 and which was duly approved by the Executive Committee of the Central Board in terms of Rule 19(1)(d) of the D.T.C.'s Order of 1979 can he said to be lawful and hence valid and binding on the petitioner? (e) Whether the respondent Bank having acceded to the aforesaid request of the petitioner before the expiry of Notice period could be non-suited for the aforesaid reason? (f) Whether not conveying the sanction of formal acceptance of employee's offer of voluntary retirement within the notice period as aforesaid is a merely procedural irregularity so as not to vitiate the said order? 2. The facts giving rise to the filing of this writ petition briefly stated are that the respondent-bank is operating in Public Sector having its local Head Office at 11 Parliament Street, New Delhi and its Zonal Office at Prithvi Raj Marg, Jaipur functioning since the year 1980. The functioning of the hank if governed by the provisions of the State Bank of India Act. 1955 (for short 'the Act of 1955') and Regulations made thereunder and besides it is also governed by the provisions of the Banking Companies Act and the Banking Regulations Act, 1949 which are Central Legislation. It is an Instrumentality of the State within the ambit of article 12 discharging its functions on behalf of the sovereign and hence amenable to the writ jurisdiction of this court under Article 226 of the Constitution of India. 3. As per the case set out by the petitioner he was appointed as clerk in the services of the State Bank of India hereinafter referred to as "the Bank" and was initially posted at Alwar on 24.7.1962 and was confirmed as such on 24.1.1963. Thereafter he was. promoted as a trainee officer on 1.8.1971 and was confirmed as officer grade I on 1.8.1973. Thereafter he was. promoted as a trainee officer on 1.8.1971 and was confirmed as officer grade I on 1.8.1973. Subsequently he was promoted as Middle Management Grade Scale II w.e.f. 1.8.1980 and received further promotion as officer Middle Management Grade III w.e.f. 1.8.1981. He remained posted at Jaipur right from 1979 till December, 1988. 4. The petitioner has urged his grievance to the effect that he was not given promotion to the Senior Management Grade Scale IV which was due to in on around August, 1985 during his posting at Jaipur and he was denied promotion on the said post in contravention of the settled policy of the Bank after four years of his promotion as M.M.G.S. Grade III for reasons best known to the management of the Bank. He has further contended that he had preferred an i appeal to the competent authority to which no reply or decision has been communicated till date and it is only on 22.6.1991 that he was conveyed the decision on the management rejecting his appeal. Thereafter the petitioner was again ignored for his further promotion w.e.f. 01/08/1986 when persons junior to him were promoted and he was superseded by various officers junior to him. The 5 petitioner has further contended that the Bank had adopted a discriminatory and arbitrary approach towards the petitioner. He had preferred an appeal to the Chairman, designated Appellate Authority on 6.12.1988 and the said appeal remained undecided for a long period. It is in the above back ground that the petitioner while he was posted at. Jaipur Regional Office of the Bank out of sheer u frustration, had applied for seeking voluntary retirement on 13.4.1988 and gave three months' notice which was received by the bank on the same day. After giving the aforesaid notice, the petitioner had sent various reminders to the bank on different occasions to which no reply was conveyed to the petitioner by the Bank within the statutory period of three months as laid down under the D.T.C.'s s Order of 1979, Service Rule and Circulars issued by the Bank in terms of which voluntary retirement is permitted to be sought on completion of 25 years of qualifying service (reduced to 20 years vide Circular dated 26.1.1986). Since the discretion to retire an officer of the bank is vested with the Executive Committee of the Central Board, the management of the Bank did not accept the same and o the petitioner was called back to join duties in pursuance of communication received from the Regional Manager, Delhi dated 21.10.1988. 5. In this context it will be pertinent to deal with Rules relating to voluntary retirement as stipulated in proviso IV to Rule 19(1) of the State Bank of India Officers (Determination of terms and Conditions of Service) Order, 1979 which s came into force w.e.f. 19.12.1979 in exercise of powers conferred en the Executive Committee/Management of the Bank by sub-sec. (1) of Section 43 of the State Bank of India Act, 1955 (23 of 1955) by virtue of which the Central Board of the State Bank of India Introduced this Order determining certain terms and conditions of appointment and services of officers in the bank and ;o which reads as under: "19(1) - (IVth Proviso) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty year's service or thirty years' pensionable service if he is a member of the Pension Fund, whichever occurs first. Provided further that an officer who has completed 25 years' service or 25 years' pensionable service, as the case may be, may be permitted by the Executive Committee to retire from the bank's service, subject to his giving three months notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived." 6. From the perusal of the above Rule it is apparent that the qualifying period of service for the purpose of exercising the option of voluntary retirement is 25 years of service or 25 years of pensionable service (reduced to 20 years in terms of respondent management's circular dated 26.11.1986) as the case may be, subject to promotion being granted in this regard to approval of the Executive Committee to accept the premature offer of voluntary retirement of the concerned employee from the services of the Bank provided the period notified in the notice served on the management by the concerned employee is specified as three months to he reckoned w.e.f. the date of affecting of service of notice conveyed in writing unless the said requirement is wholly or partly waived. However, this rule nowhere stipulates that bank is under obligation to convey its acceptance within the statutory period of three months of notice period to the employee conveying his option of seeking voluntary retirement within the said period as aforesaid though it is binding on the management of the bank to pass an order of either acceptance or rejection, as the case may he within the stipulated period of three months as specified in the notice served on Bank by the employee. The above rule has not also been worded in the same language as stipulated in III proviso to Rule 20 of the State Bank of India (Supervising Staff) Service Rules and the condition of 25 years of service has been reduced to 20 years in terms of respondent management's Circular, dated 20.11.1986 as referred to above. Since the petitioner's earlier and first request for seeking voluntary retirement in terms of his notice dated 13.4.1988, as referred to above, was not accepted, the petitioner had reported back for duty at Jaipur Regional Office of the bank from where the petitioner was transferred to Faridabad branch of the respondent-bank as Manager (S.B.I.) where he reported for duty on 2.1.1989 and he continued to discharge his duties in the said capacity till 30.9.1989. Thereafter the petitioner served a second notice on 15.6.1989 vide Annexure 20 of the Deputy Managing Director (Personnel & Systems) State Bank of India, Central Office, Bombay through the Branch Manger S.B.I., Faridabad whereby he sought voluntary retirement in terms of IVth proviso to para 19(1) of the D.TC.'s Order, 1979 as referred to above with a request to relieve him from duties with immediate effect and waive the requirement of three months' notice with the condition that if the request of waiver is not acceded to, the said letter should be treated as an appropriate notice. 7. The aforesaid contention is borne out from para 14 of the writ petition wherein it has been specifically stated by the petitioner that having been frustrated with the behaviour meeted out to him by the management in not deciding the appeals against non-promotion and transfer to Faridabad in the midst of a educational sessions, he again applied for voluntary retirement on 15.6.1989 and requested to waive the notice period or treat the same as three months' notice. By his letter. By his letter. dated 16.7.1989 the petitioner had again requested the respondent hank to recover the pay for the unexpired notice period and relieve him immediately in accordance with Rule 19(1) of the D.T.C.'s Order, 1979 as referred to above. It has been further contended that the management did not communicate any reply and rather there was an inordinate delay in accepting and communicating the decision to the petitioner, on the basis of which the petitioner had on the basis of presumption that his request for voluntary retirement had been turned down by the management and not accepted as had happened in the past had consequently made all arrangements for shifting his family to Faridabad and had given up the idea of abandoning the services of the bank. He has further contended that on account of bias and inimical approach of the Branch Manager and Regional Manager of the hank respectively, inspite of the best service record, the management all of sudden and without the consent and consultation of the bank after the expiry of notice period directed that the petitioner be relieved from his duties w.e.f. 30.9.1989 with immediate effect. 8. During the course of hearing Mr. S.K. Jain, learned counsel for the petitioner, has vehemently contended at the bar that when there is a clear rule specifying the terms and condition and the circumstances in which an employee's request for voluntary retirement is to be accepted by the Bank as so specified in Rule 19(1) of the Order of 1979 and Rule 20 of Supervisory Staff Service Rules and the New Delhi Local Head Office Circular dated 26.1.1.1986 that an officer can seek voluntary retirement on completion of 20 years of service after giving three months' notice in writing or pay in lieu thereof which request and option were made by the petitioner to the respondent bank in the communications dated 15.6.1989 and 16.7.1989 respectively, since the respondent bank had made inordinate delay in taking and conveying the decision taken by the management, it was not open to the bank to have extended the statutory period of three months' notice of its own volition without obtaining petitioner's consent and though it has power to reduce and waive the statutory period but under no circumstances it has power to enhance the same. 9. 9. Learned counsel for the petitioner further contended during the course of hearing that the respondent bank had in utter disregard and violation of the statutory rules, as referred to above, and also without obtaining the prior permission or approval of the Executive Committee directed that the petitioner shall be deemed to have retired from the services of the hank on 30.9.1989 and that too after the expiry of the notice period of three months for which the hank had no justification and jurisdiction and as such the petitioner shall be deemed to have continued in the services of the respondent bank without any break in service and hence entitled to all consequential benefits. 10. In response to the show cause notice issued by this court the respondent-hank has filed its reply by specifically controverting the aforesaid contention of the petitioner on the grounds inter-alia that neither any legal or any fundamental right of the petitioner has been violated and the alleged violation of Rule 19(1) of the D.TC.'s Order, 1979, as referred to above, read with Articles 14 and 16 of the Constitution of India is based upon erroneous premises of the - petitioner. By way of preliminary objections it has been stated at the out-set that:- (1) that the promotion to S.M.G.S.-Grade IV is based on the criteria of seniority-cum-merit and the promotion to the same cannot be claimed a matter of right, (2) that the petitioner was not promoted on the above post and on subsequent promotional posts on account of disciplinary action taken against him by the management of the Bank and; (3) that the administrative approval of request for voluntary retirement it to be given by the Executive Committee and the decision in this regard was specifically taken by the management of the hank as so stated by the learned counsel for the respondents during the course of hearing of' the writ petition before the expiry of the statutory requirement of three months' notice as reckoned with effect from the date of subsequent second notice, i.e. 15.6.1989 and its administrative approval and sanction by the Deputy Managing Director (Personnel and Systems) was taken before the expiry of three months' period, i.e. on 28.8.1989 and hence it cannot be said that since the decision was not conveyed to the petitioner before the expiry of three months notice period though it was administratively approved by the Deputy Managing Director of the bank within three months notice period, i.e. on 28.8.1989 can he treated as having vitiated the acceptance by the bank which was done within the stipulated period, as referred to above. 11. It has been further contended in the reply that to regards the promotion to the post of S.M.G.S.-IV, the petitioner was duly considered for promotion on the said post on both the occasions, i.e. on 1.8.1985 and 1.6.1986 respectively but was not selected on merits and this promotion to the said post and above is purely based on relative merits of the officers considered eligible for consideration and within the zone of consideration as per the policy laid down by the bank. 12. 12. During the course of hearing Shri S.K. Gupta, learned counsel for the respondents contended at the bar that as per the Rule 19(1) of the D.TC.'s Order, 1979 there is nowhere provided in the rules that it is obligatory on the hank to convey its acceptance within the period of three months of the notice period as so urged by the learned counsel for the petitioner though it is binding on the bank to take as decision with regard to its acceptance or rejection of offer or an employee who has sought voluntary retirement within the notice period of three months. He has further contended that since. the Executive Committee of the Central Board had in accordance with Rule 19(1) of the D.T.C.'s Order, 1979, accepted the petitioner's request before the expiry of notice period w.c.f. 28.8.1.989 when it was administratively approved by the Deputy Managing Director of the bank, it cannot be said to have been vitiated for the reason that it was n,;t conveyed to the petitioner within the aforesaid period.The allegation with regard to the malafides and bias made against the management of the respondent-hank by the petitioner were specifically denied by the learned counsel for the respondents during the course of hearing of the writ petition. In reply to para 13 of the writ petition, it has been contended by the learned counsel for the respondents that with regard to the departmental action which was initiated against the petitioner, since no disciplinary enquiry was initiated against him by the management of the respondents-bank, it ceased to have any relevance with regard to the promotions made in 1985 and 1986 for which the petitioner was duly considered but not found suitable on relative merits qua other candidates. 13. 13. I find great force in the contentions advanced by the learned counsel for the respondents for the reason that Rule 19(1) of the D.T.C.'s Order, 1970 does not make it binding on the management of the hank to convey its decision of either acceptance or rejection of the offer of an employee seeking voluntary retirement, since it is not the case set up by the petitioner that the acceptance of the petitioner's request for voluntary retirement was not made within the stipulation period of three months as provided in the rules though he has stated that since the communication with regard to acceptance of petitioner's request had not been received by the petitioner before expiry of notice period of three months, hence the acceptance conveyed subsequently shall vitiate the same. I am prima facie of the view that the contentions as advanced by the learned counsel for the petitioner are wholly erroneous and contrary to the rules itself. The delay in conveying the decision by the bank in my opinion is only procedural and cannot be deemed to have vitiated the acceptance itself since the said decision had administrative approval of the Central Board of the Bank headed by its Deputy Managing Director. 1 am further of the opinion that no malafides can he attributed to the bank in view of the fact that the petitioner had earlier male a request for voluntary retirement on 13.4.1988 and which was not accepted by the bank and thereafter the petitioner had resumed his duties and continued to serve the bank and had subsequently been posed on transfer to Faridahad and hence no malafide can he attributed to the respondent-hank. The second request for seeking voluntary retirement was made after the rejection of his earlier request which was found to be in order and a decision; was taken by the Central Board of the hank retiring the petitioner from its services w.c.f. 30.9.1989, which in my considered view is perfectly justified, legal and valid and in accordance with the Rules. The second request for seeking voluntary retirement was made after the rejection of his earlier request which was found to be in order and a decision; was taken by the Central Board of the hank retiring the petitioner from its services w.c.f. 30.9.1989, which in my considered view is perfectly justified, legal and valid and in accordance with the Rules. Hence, it is not open to the petitioner to challenge the acceptance of his offer for voluntary retirement and since the petitioner has already retired from service of the bank, he is not entitled to claim continuity of service or benefits in lieu thereof.During the course of hearing learned counsel for the petitioner placed reliance upon the following decision- Gummadi Sri Krishna Murthy v. District Education Officer, Guntur and Ors., 1990 (3) SLJ 91 , Himachal Pradesh Horticultural Produce Marketing & Processing Corp. Ltd. v. Sumar Behari Sharma, 1996 (4) SCC 584 , Delhi Electricity Supply Undertaking v. Tara Chand, 1978 (2) SLR 425 , Shri Des Raj Bhatia v. The State of Himachal Pradesh & Ors., 1977 (2) SLR 201 . A.P. State Road Transport Corp. Hyderabad v. Joseph Burned and Ors., 1982 Lab. I.C. 198 (AP HC) , Asstt. Branch Manager LIC of India v. Shanti Swarup Shama, 1981 (1) SLR 195 (Patna) , Marathwada University v. Seshrao Balwant Rao Chavan, 1989 (3) SCC 132 , State of Rajasthan v. Aklanka Jindel, 1982 Lab.I.C. 1848 and New Bank of India v. N.P. Sehgal and Anr., 1991 (2) SALR 59 : 1966 (1) SLR 311 . 14. I have examined the ratio of the aforesaid decisions relied upon by the learned counsel for the petitioner and in my considered opinion the same are not attracted to the instant case for the reason that it is not the case as set up by the petitioner that the offer an employee for his voluntary retirement from service as served on the management by the said employee shall automatically lapse after the expiry of three month's statutory period it is not accepted or rejected by the employer within the said period. In the instant case the decision to voluntarily retire the petitioner from services of the bank was admittedly taken before the expiry of three months period though not conveyed before its expiry and hence the same will not vitiate the acceptance. In the instant case the decision to voluntarily retire the petitioner from services of the bank was admittedly taken before the expiry of three months period though not conveyed before its expiry and hence the same will not vitiate the acceptance. In my view it is a mere procedural irregularity of the bank. 15. As regards the contentions of the petitioner for continuity of service, I am of the view that the said contention of the petitioner does not survive for consideration of this court in view of the petitioner having deemed to have been voluntarily retired from service of the bank w.e.f. 30.9.1989 when his request for voluntary retirement was duly accepted by the bank. 16. Learned counsel for the respondents in support of his contentions placed reliance upon the following decisions : 17. Tulsi Ram Sharma v. State and others, 1995 (7) SLR 132 . Sharat Kumar Mohanty v. State of Orissa and others, 1995 (1) SLR 314 (FB) (Orissa) . Shri Moti Ram v. Shri Param Dev & Anr., 1993 JT (2) SC 251 . 18. My observations are fortified from the judgment of the Division Bench of this Court in the matter of Tulsi Ram Sharma v. State and Others, 1995 (7) SLR 132 and and Full Bench's judgment of Orissa High Court in the matter of Sarat Kumar Mohanty v. State of Orissa and Others, 1995 (1) SLR 314 .In the matter of Tulsiram Sharma v. State of Orissa (supra) the appellant petitioner had served a notice to the Chief Engineer of the State PWD (Division 1), Doongarpur seeking his voluntary retirement in pursuance of the notice which he had served on the Department. As per the rules, after expiry of 3 months period of service of the notice, the petitioner's service should have automatically come to an end as no adverse order in the case of the petitioner was passed, but the petitioner was not relieved and he continued in service. Thereafter, he again served a notice upon the Chief Engineer with a request was accepted by the Chief Engineer PWD Rajasthan Jaipur by his communication sent to the petitioner and he was directed to be retired voluntarily from the Government service under Rule 254(3) of the Rajasthan Service Rules, 1951 subject to the conditions that: (1) No Government dues were found outstanding against him. (2) He was not involved in any case of embezzlement or fictitious over payment or other irregularities and no departmental enquiry or contemplated enquiry was initiated against him. (3) He had not executed any bond to service the government. 19. The petitioner challenged the aforesaid order upon which he was relieved from his duty by way of filing a writ petition on the ground that the conditions mentioned in the order were not fulfilled and still he was not relieved from service. The learned Division Bench dismissed the writ petition keeping in view the non-fulfillment of the aforesaid conditions as stipulated and has further observed that the State Government had all powers to accept an offer of voluntary retirement of the employee and further held that the presumption with regard to the acceptance of notice and his retirement shall be effective in terms of the L.16ce 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 notice period. The learned Division Bench of t its Court while dismissing the appeal preferred by the appellant, confirmed the order of the learned Single Judge who had upheld the order of the State Government regarding voluntary retirement of the petitioner with the following observations: "After the expiry of the period of notice unless a contrary order has been issued by the competent authority and served upon the Government servant before the expiry of the period of notice, a presumption arises of the acceptance of the notice Annexure-2 on 15.7.1985 seeking his voluntary retirement. No order in writing, contrary to it, has been issued by the competent authority before the expiry of the period of notice and he was allowed to retire on 4.4.1986 and was relieved on this date. No illegality appears to have been committed by the learned Single Judge while dismissing the writ petition tiled by the petitioner-appellant. The learned Single Judge had dealt with all the points raised by the petitioner and has given cogent reasons for their non-acceptance. The judgment passed by the learned Single Judge does not require any interference." 20. Likewise, an identical question had arisen for consideration of the learned Full Bench of the Orissa High Court in the matter of Sarat Kumar Mohanty v. State of Orissa & Ors. The judgment passed by the learned Single Judge does not require any interference." 20. Likewise, an identical question had arisen for consideration of the learned Full Bench of the Orissa High Court in the matter of Sarat Kumar Mohanty v. State of Orissa & Ors. (supra) in a writ petition with reference to Article 217 and 235 of the Constitution of India in respect of a Mcmber of the Stale Superior Judicial Service who had sought voluntary retirement from the Department pending disciplinary proceedings against him. The question which had arisen was as to whether the offer of voluntary retirement should he withheld or not and this question has to he decided in consultation with, or on recommendation of the High Court. It was further held that same is the position with regard to withdrawal or rescission of voluntary retirement by him which has asked for subsequently. 21. As a result of the above discussion I find no merit in the writ petition and the same is dismissed. As regards the contentions of the petitioner for continuity of service, I am of the view that the said contention of the petitioner does not survive for consideration of this court in view of the petitioner having deemed to have been voluntarily retired from service of the respondent. bank w.e.f. 30.9.1989 when his request for voluntary retirement was duly accepted by the bank. 22. Before parting with this case, I would like to observe that it is equally necessary for the respondent-State Bank of India that whenever such case arise in future the Bank may by very careful and vigilant in communicating the order of acceptance or rejection of the offer of voluntary retirement made by an employee and preferably it should be done within the notice period of 3 months in accordance with Rule 19(1) DTC's Order, 1979. This will cultivate fair practice and will impart great deal of confidence in the employee who shall be kept will informed of the position in time in such cases. The cardinal principle which should be achieved to by the Bank with all its employee is that there will be fairness and transparency in their actions and this principle should not be violated at any cost in future. The cardinal principle which should be achieved to by the Bank with all its employee is that there will be fairness and transparency in their actions and this principle should not be violated at any cost in future. It is further directed that if any disciplinary proceedings is still pending against the petitioner, the result of the said enquiry should be communicated to the petitioner at once with a further direction that if any dues are still outstanding in the petitioner's account and if not so far settled by the Bank, the same shall he settled immediately and the payment be released in favour of the petitioner without any further delay, if not already settled.Writ Petition Dismissed. *******