JUDGMENT 1. - The salient questions which arise for consideration of this Court in the instant writ petition are : (a) whether it was open to the respondents to have deprived the retrial service benefits admissible to an employee of the State Government who has opted for voluntary retirement such as pension, Govt. Provident Fund, Gratuity etc. to an employee who after having completed qualifying period of service was deprived of the same by the respondents on the ground that since he had not served requisite notice of three months in accordance with rule 244(a) of the Rajasthan Service Rules, 1951 prior to making his request for voluntary retirement which in fact was treated as resignation by department and hence, the employer was within its right to direct forfeiture of his said consequential benefits ? (b) whether the resignation of an employee from public service with a view to seek voluntary retirement on completing qualifying period of service can be construed as corresponding right of the employer to entail forfeiture of his aforesaid consequential benefits resulting in deprivation or forfeiture of his past service rendered to the department notwithstanding his having made several representations clamoring for the release of the said benefits of which he was unlawfully deprived by the respondents creating cause of action in favour of aggrieved employee for enforcement of his rights by way of instant writ petition ? (c) Whether, the request of a Government servant for his voluntary retirement from Govt. Service made purely on the grounds of his failing health other than (a) misconduct; (b) insolvency; (c) inefficiency not due to age; or (d) failure to pass prescribed examination, entails forfeiture of past service within the ambit of Rule 208 (a) of Rajasthan Service Rules, particularly when none of the aforesaid conditions exists in the present case ? 2. Brief facts giving rise to filing of the writ petition are that the petitioner who belongs to the weaker section of the society was initially appointed on the post of Class-IV (Fawadawala) on 25th July, 1957 under the respondent, earlier known as Nagar Parishad but not as Jaipur Nagar Nigam, (hereinafter referred to as 'Nigam') represented in this Court through its Commissioner respondent No.3. Subsequently, he was confirmed on the said post in the regular pay scale. The petitioner continuously served under the respondents for the period 1957 to 1991 without any break in service. Subsequently, he was confirmed on the said post in the regular pay scale. The petitioner continuously served under the respondents for the period 1957 to 1991 without any break in service. As per the record of the department, there was no complaint whatsoever against the petitioner that his service was not found satisfactory on the ground of his misconduct, inefficiency or for any other reason which would have resulted in deprivation of the service benefits as admissible to the petitioner in accordance with the rules as on the date when his request for voluntary retirement was considered as resignation by the department. 3. During the course of his service tenure due to circumstances beyond petitioner's control, since he was suffering from weak eye sight and was under the treatment with Senior Medical Officer, Government Dispensary, Jaipur, the said Medical Officer after due examination of the petitioner, found that he was not fit to discharge his duties on account of his failing health since he was having severe difficulty due to loss of his vision and was advised bed rest for long time. This fact is borne out from Annexure-1, which is a Medical Certificate issued by Senior Medical Officer, Government Dispensary Moti Katla, Jaipur dated 21.1.1991 on the record. As on the said date, the petitioner was 52 years of age and had rendered 34 years of qualifying service to the respondents. It is at that point of time that the petitioner rightly thought and decided to make a request for his voluntary retirement to the department and he made the said request by his representation dated 6.3.1991 and the said request for voluntary retirement was accepted by the respondent vide his order dated 6.3.1991 on the same day. From a perusal of the aforesaid document it is apparently clear that the only ground on which the petitioner sought voluntary retirement was on account of his physical disability of his weak eye sight on account of which he was not able to discharge his public duty. From a perusal of Annexure-2 it is apparent that the petitioner apart from the said ground had also requested that his daughter-in-law be given appointment on the same post and in the same pay scale and the said request was acceded to by the respondents and she was given appointment. From a perusal of Annexure-2 it is apparent that the petitioner apart from the said ground had also requested that his daughter-in-law be given appointment on the same post and in the same pay scale and the said request was acceded to by the respondents and she was given appointment. However, the respondent by placing erroneous interpretation on the said request of voluntary retirement in their wisdom took it as a ground entailing forfeiture of past service benefits (A) which though admissible to the petitioner in accordance with the Rules i.e. pension, provident fund, gratuity etc. to which the petitioner would have been otherwise held entitled in normal course if he had not made such request and which in my considered view obviously the respondents were not permitted to do so the same were withheld and unlawfully not paid to the petitioner notwithstanding his several representations and notice for demand of justice ultimately leading to filing of the instant writ petition in this Court. In their reply to show cause notice, the respondents Nos. 3 and 4 have contended that the resignation of the petitioner was accepted vide order dated 6.3.91 while the writ petition was filed belatedly after delay of more than four years as on 31.7.95 hence, deserves to be dismissed on the ground of delay and laches. They have further contended that the petitioner should have served as minimum three months statutory notice as envisaged under Rule 244(1) of the RSR which was mandatory requirement before approaching this Court by way of the instant writ petition. Another objection which they have taken is that the writ petition is after thought and deserves to be dismissed since the petitioner has already made a request for absorption of his daughter in law on the said post on which he was working earlier which could not be by any stretch of imagination a ground entailing forfeiture of consequential post-retiral benefits admissible to the petitioner. On this basis the respondents have contended that he was not entitled to get the aforesaid benefits and they have the right to forfeit the same. 4. On this basis the respondents have contended that he was not entitled to get the aforesaid benefits and they have the right to forfeit the same. 4. It is noteworthy to mention that the petitioner tendered his resignation merely and rather primarily for the reasons of his physical disability on account of his weak eye-sight on account of which he was unable to perform his public duties satisfactorily and this fact has also been affirmed by Senior Government Medical Officer whose opinion as per the certificate on the record has been perused and as I am of the considered view that this by itself cannot be a ground entailing forfeiture of service benefits like pension, gratuity, PF CPF etc. which were due and admissible to the petitioner in accordance with law which the respondents were not justified in forfeiting. It is also noteworthy to mention that a sum of Rs. 11,268/- which was due to the petitioner on account of Provident Fund out of which after deducting Rs. 6,000/- by way of amount taken against loan account, the respondents have already paid the balance amount of Rs. 5,268/- which fact has not been disputed by the petitioner.This, in my view also, amounts the acquiescence on the part of respondents in having accepted the petitioner's entitlement for payment of aforesaid benefits towards their acknowledgment of liability and, hence, there was no question of forfeiture of any post retrial benefits due to the petitioner. However, the respondents have taken a very contradictory stand in their reply by stating that since the petitioner had tendered his resignation and which was accepted by them vide order dated 6.3.91, no retrial benefits can be claimed by the petitioner notwithstanding the payment of Provident Fund dues, which in fact a partial acknowledgment of their liability to pay other dues lawfully admissible to the petitioner which the respondents are not entitled to withhold. In my considered view, this does not entitle the respondents to forfeit other benefits as referred to above since the petitioner has already rendered more than qualified period of service of about 34 years to the respondents which fact has not been disputed by the learned counsel for respondents during the course of hearing. This fact is also borne out from the documents available on record. During the course of hearing, Mr. This fact is also borne out from the documents available on record. During the course of hearing, Mr. Manoj Sharma, appearing for respondents 3 and 4 has vehemently contended at the bar that because the petitioner had tendered his resignation from service and since at his place, his daughter-in-law had been given employment, he is not entitled to get any post retrial benefits. The petitioner has tendered his resignation which would result in forfeiture of benefit in accordance with Rule 208 of the RSR. From the bare perusal of Rule 208 RSR it is dearly borne out that resignation of a Government Servant from any department of State would not by itself result in forfeiture of the benefits which are due and admissible to an employee on completion of qualifying period of service and only safeguard which is available to the employer in the grounds of misconduct, insolvency, inefficiency not due to age or failure to pass prescribed departmental examination which would entail forfeiture of the past service and on no other grounds. Hence, in my considered view, since none of the aforesaid contingencies were existing in this case as on the date when the petitioner tendered his resignation for voluntary retirement and which was treated as resignation does not entitle the respondents to forfeit the aforesaid benefits to a permanent employee like the petitioner whose services had been duly regularised and who rendered uninterruptedly more than qualifying period of service as referred to above. It is only in those circumstances on interpretation as specified in rule 210 of RSR resulting in any break in service on the grounds:- (a) absent from duty without obtaining authorised/sanctioned leave from the employer; (b) unauthorized absence in continuance of authorised leave of absence so long as the office of the absentee is not substantively filled, if his office is substantively filled the past service of the absentee is forfeited; (c) suspension where it is immediately followed by reinstatement, whether to the same or different office or whether the officer dies or is permitted to retire or retired while under suspension; that will be treated as break in service resulting in forfeiture of the service benefits as referred to above which would entail the employer to forfeit the aforesaid benefits as admissible to an employee on the eve of his retirement from the concerned department and not otherwise. I am further of the view that in the case of misconduct, if the ground of misconduct is insolvency, inefficiency not due to age or any such contingency which would entail the employer to forfeit the aforesaid benefits or only in cases where a regular departmental enquiry is held or initiated by the department in accordance with law and if his misconduct is proved on record, resulting in imposition of either major or minor penalty which is imposed by the enquiry officer in accordance with Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short the 'CCA' Rules, 1958) which may result in forfeiture of service benefits but no other benefits such as pension, gratuity, C.P.F. and other such benefits which are otherwise admissible to an employee on the eve of his retirement from the concerned department. During the course of arguments, this fact has not been disputed by the learned counsel for respondents at the bar that none of the contingencies as referred to above were in existence in the petitioner's case as on the date when his request for voluntary retirement was accepted by the respondents by treating the same as his resignation from the service. My observations are fortified not only from the aforesaid rules which are binding on the respondents but from the ratio of decision of this Court in Lochan Vishal v. State of Rajasthan & Ors., 1997(1) RLR 670 = 1997 (3) WLC (Raj.) 189 wherein similar controversy had arisen for consideration before the learned Single Judge of this Court at the Principal Seat at Jodhpur. In the said case, the petitioner had challenged the impugned order by which he was informed that for the reasons particularly Rules 208 and 244 of the RSR he was not entitled to payment of any pensionary benefits. The petitioner who was an LDC, served in the PWD Department of the State. The order was passed on 7.1.1964 by the respondents accepting his resignation w.e.f. 31.1.64. It is pertinent to note that the petitioner was a member of Jodhpur C.P.F. Scheme and in the instant case also, the petitioner was a member of CPF Scheme and in the year 1989, the Rajasthan Municipal Service (Pension) Rules, 1989 were promulgated by the State Government by which petitioner's case is convened. It is pertinent to note that the petitioner was a member of Jodhpur C.P.F. Scheme and in the instant case also, the petitioner was a member of CPF Scheme and in the year 1989, the Rajasthan Municipal Service (Pension) Rules, 1989 were promulgated by the State Government by which petitioner's case is convened. In the aforesaid writ petition option was invited from the petitioner in accordance with rule 244(1) of RSR on completion of 20 years of qualifying service and the petitioner's request for voluntary retirement was treated as resignation in accordance with rule 208 of the RSR but none of the contingencies such as misconduct, insolvency, inefficiency not due to age or failure to pass the prescribed departmental examination as envisaged in rule 208 RSR existed. In the said case, the only objection taken by the concerned Department was that rule contemplates notice in writing to the appointing authority declaring intention of the Government servant to take retirement on completion of 20 years of qualifying service. A notice under clause (a) of Rule 244(1) may presume acceptance of 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. In this case, the petitioner having not complied with this requirement of serving statutory notice of three months in accordance to rule 244(1) of the RSR, it was held by this Court that the resignation of an appointment to take up another appointment is not a resignation from public service as per rule 208 of the RSR. Only the resignation of the public service 1. 1997(l) RLR 670. 1997(3) WLC (Raj.) 189 due to age, or any of the contingencies as contemplated in rule 208 it cannot be construed as a resignation entailing forfeiture of past service benefits as referred to above which are admissible to an employee subsequently to his retirement from public service. Only the resignation of the public service 1. 1997(l) RLR 670. 1997(3) WLC (Raj.) 189 due to age, or any of the contingencies as contemplated in rule 208 it cannot be construed as a resignation entailing forfeiture of past service benefits as referred to above which are admissible to an employee subsequently to his retirement from public service. It was consequently held by the learned Single Judge of this Court that the respondents had, therefore, obviously erred in denying benefit of pension and other retiral benefits as referred to above after the pension scheme was made applicable to employees like the petitioner and writ of mandamus was accordingly issued to the respondents to consider the case of petitioner for grant of pensionary benefits in accordance with law and finalise the same within the stipulated period. 5. During the course of arguments it has been contended by the learned counsel for the petitioner that the petitioner is covered by the pension scheme as admissible to similarly placed employees of the department though he had not exercised his option but since the respondents have only argued that the petitioner has not submitted his option but in my considered view, that by itself cannot be a ground to make forfeiture of pensionary benefits. In fact, the respondents are duty bond to invite option from the employees as to whether he would like to avail pension or would like to take CPF benefits under law. Since, the respondents had not chosen to direct the petitioner to exercise the said option, in my considered view, would not be a ground entitling the respondents to make forfeiture of the said benefits since they have not raised any such objection as on the date when they had accepted the request for voluntary retirement which was treated as resignation from service. From the perusal of the record it is borne but that the respondents did not invite any option either for pension or CPF in accordance with law hence, at this belated stage it is not open to them to raise any such objection. 6. During the course of hearing, learned counsel for petitioner has stated at the bar that his client is willing to avail the benefits of Contributory Provident Fund Scheme as applicable to the similarly placed employees like the petitioner department i.e. Local Self Government. 7. 6. During the course of hearing, learned counsel for petitioner has stated at the bar that his client is willing to avail the benefits of Contributory Provident Fund Scheme as applicable to the similarly placed employees like the petitioner department i.e. Local Self Government. 7. As a result of the above discussion, the writ petition is allowed and the respondents are directed to make pay fixation of the petitioner at the fist instance in the existing pay scale which were admissible to him on the basis of his last drawn pay in the department of Nagar Nigam Jaipur and as admissible to the similarly placed employees of the said department like the petitioner and after making the pay fixation within a period of four weeks from the date of submission of a certified copy of this order, release CPF amount after making the necessary adjustment as per Rules. Gratuity and leave encashment, arrears due as a result of pay revision, pensionary benefits from the last month's salary if not already paid, from the date of seeking voluntary retirement i.e. 6.3.91 and all other consequential benefits which were admissible and due to the petitioner as on the date when he sought voluntary retirement from the Nagar Nigam shall also be released and paid positively within four weeks thereafter (in all eight weeks) from the date of submission of a certified copy of this order to the department.In the result the petition succeeds and is allowed. However, there shall be no orders as to costs.Petition allowed. *******