JUDGMENT 1. - This writ petition has been filed for quashing the order dated 31.3.2001, by which the petitioner has been given voluntary retirement in spite of withdrawal of the application made earlier for voluntary retirement. 2. The facts and circumstances giving rise to this case are that the 5 petitioner, being an Ex-serviceman, was given re-employment by the respondent bank. After completing the service of more than eighteen years, he filed an application on 20.3.2001 seeking voluntary retirement under the Scheme floated by the respondent bank. Before any order could be passed on this, he filed an application on 29.3.2001 withdrawing the application made 10 earlier for voluntary retirement. In spite of that withdrawal, the respondent bank issued the impugned order dated 31.3.2001 that his request for voluntary retirement under the scheme has been accepted and he would be relieved from the duties w.e.f. 31.3.2001. Hence this petition. 3. Mr. V.P. Sharma, learned counsel for the petitioner has submitted that 15 the petitioner has every right to withdraw the application as per the Scheme itself, which provided for withdrawal upto 29.3.2001 by submitting an application in writing and as the petitioner had withdrawn the application seeking voluntary retirement, nothing remained before the Competent Authority (but) to accept the same and, therefore, the impugned order stands 20 vitiated and is liable to be quashed. 4. Mr. D.D. Thanvi, learned counsel for the respondents has submitted that the writ petition has been filed at a belated stage after taking the benefit of retirement, including some of the retiral benefits and the petition has been presented on 10.1.2002, i.e. after expiry of more than nine months. A cheque 25 for Rs. 4,32,1101- was issued in his name and after adjusting the loan amount of Rs. 2,96,133.36, the balance amount of Rs. 1,35,878.28 had been paid to him vide cheque dated 31.3.2001, which he accepted without any protest and the said cheque was encashed by him. It was a full and final settled with the petitioner. It has further been submitted that the petitioner is guilty of suppression of the fact that he had received the retiral benefits under the said Scheme and that itself is a ground for rejecting the petition. 5. I have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. It has further been submitted that the petitioner is guilty of suppression of the fact that he had received the retiral benefits under the said Scheme and that itself is a ground for rejecting the petition. 5. I have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. The Scheme of Voluntary Retirement floated by the respondents itself provides that if an employee, after submitting an application for voluntary retirement, wants to withdraw it, he must move an application in writing for withdrawal and submit the same upto 29.3.2001 before the officer concerned. In the instant case, petitioner has filed the application for withdrawal on 29.3.2001 before the officer concerned and there is no dispute in this respect, nor the respondents have pleaded that they have not received the s application, nor could they explain as under what circumstances if the application itself had been withdrawn, the impugned order dated 31.3.2001 has been passed. 7. The issue involved herein is no more res integra and it has been considered by the Hon'ble Supreme Court time and again. In Jai Ram v. to Union of India & Ors., AIR 1954 SC 584 , the Apex Court considered the case of self-seeking retirement of an employee under the Fundamental Rules and held as under : "It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer, to give 15 him the requisite permission to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to so as long as he continues in service and not after he has been terminated." 8. In Raj Kumar v. Union of India & Ors., AIR 1969 SC 180 , the Apex Court considered the case of resignation tendered by a member of Indian Administration Service on 21.8.64. His case for acceptance of resignation was recommended by the State Government and the Government of India accepted his resignation vide order dated 31.12.64 but asked the Chief Secretary to the Government of Rajasthan "to intimate the date on which he (employee) was relieved of his duties so that a formal notification can be issued in that behalf." The officer filed an application on 27.11.64 to withdraw his resignation. However, vide order dated 29.3.65, he was directed to be relieved. When he approached this Court for quashing the order dated 29.3.65 and also the order dated 31.10.64, the Court rejected his case holding that till the resignation was accepted by the Authority in consonance with the rules governing the acceptance, the public servant concerned has locus penitential but not thereafter. The resignation became effective on the date of its acceptance by the Government of India and a subsequent withdrawal of the resignation was ineffective even if acceptance of was not intimated to him. The Court held as under : "The letter written by the appellant on 21.8.64 and 30.8 64 did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the Authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority." 9. The Apex Court further held that there may be some executive instructions dealing with the subject. having no statutory force, but the same as cannot come to the rescue of either side in such a case; however, not passing any order on the application for resignation for a long period. may justify an inference that the resignation has not been accepted. 10. The Constitution Bench of the Hon'ble Supreme Court, in Union of India v. Gopal Chandra Misra & Ors., AIR 1978 SC 694 , dealt with the case of resignation by a Sitting Judge of Allahabad High Court to become effective from a future date. The majority view reads as under : "It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resign or...If he chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can, at any time before arrival of prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal." 11. In P. Kasilingam v. P.S.G. College of Technology, AIR 1981 SC 789 , the Apex Court approved the law laid down in the cases of Raj Kumar & Gopal Chandra Misra (supra), but did not decide as to whether resignation tendered and accepted immediately thereafter on 19.3.1976, could be withdrawn on a subsequent date as the employee teacher was directed to be relieved with (effect from) a future date considering the interest of the students and the dominant issue remained as to whether the resignation, in the facts and circumstances of the case, had been tendered voluntarily and in view thereof, the matter was remanded to the Government to decide afresh on certain points. 12. In Central Inland Water Transport Corporation Ltd. v. Brojonath Ganguli, AIR 1986 SC 1571 , the Hon'ble Supreme Court observed that if an employee is not permitted by terms of his contract of employment to determine the relationship of master and servant, such an employment may tantamount to practising bonded labour. The Court held as under "By entering upon a contract of employment, a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. 13. The Court further held that in certain circumstances, the employer may be justified in not accepting the resignation if the employee wants to leave in middle of the work which is of an urgent nature or very important and for the completion of which his participation is necessary. Resignation may also not be accepted if an employee wants to escape the consequences of an adverse finding against him in a domestic enquiry. 14. In Balram Gupta v. Union of India & Anr., AIR 1987 SC 2354 , the Hon'ble Apex Court considered the case where rules required that withdrawal of resignation may be subject to the approval of the Authority. The Court also considered the guidelines, on the basis of which the Competent Authority could consider the application for withdrawal which, inter alia, contained condition that there must be material-change in the circumstances, in consideration of which a notice was originally given. The Court held that in ordinary circumstances, there should be no embargo on employee's choice or freedom not to continue in employment. The Court held that in ordinary circumstances, there should be no embargo on employee's choice or freedom not to continue in employment. "If, however, the administration had made arrangement acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter, but the employee's offer to retire or withdraw" should not be in quick succession. The withdrawal should not adversely affect the administrative set-up or its arrangement. The Court further observed as under : "In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardise the Government or administration, administration should be graceful enough to respond and acknowledge flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement." 15. However, that was a case wherein the resignation was tendered to be effective with a future date as the letter under section 48-A of the Central Civil Services (Pension) Rules, 1972 was given with a three month's notice on 5 1.81 to be effective on 31.3.81. 16. In Punjab National Bank v. P.K. Mittel, AIR 1989 SC 1083 , the Supreme Court again examined the case wherein the employee tendered his resignation on 21.1.86 to be effective on 30.6.86. The resignation was accepted on 7.2.86 pointing out that it had been accepted by the Authority with immediate effect. The Apex Court held that the Authority had no competence to advance the date of its effectiveness and resignation, if accepted, could have become effective only on 30.6.86 and as the resignation was to be effective with future date, the employee had a right to withdraw the same prior to 30.6.86. The Court further observed that there has to be specific provision to regulate the process of acceptance of resignation and its effect and flied his nomination thereafter. The last date of scrutiny was 5 2.90 and on that date his nomination was accepted. The Court pointed out that resignation may be with immediate effect or may be prospective, i.e. to be operative from a future date and as resignation means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the art of giving up or relinquishing the office. The Court pointed out that resignation may be with immediate effect or may be prospective, i.e. to be operative from a future date and as resignation means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the art of giving up or relinquishing the office. In a general juristic sense, in order to constitute a complete and operative resignation, there must be intention to give up or relinquishing the office or the concomitant act of its relinquishment. The Court further observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character depending upon the nature of office and the conditions governing it. In cases where the act of relinquishment is of bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g. acceptance of the said request to relinquish the office, and in such a case the relinquishment does no become effective or operative till such action is taken. In that case, the relinquishment was of a unilateral character requiring no acceptance, i.e. stood accepted as soon as it was tendered. On this basis, his nomination was held to be valid. 17. In Power Finance Corporation Ltd. v. Parmod Kumar Bhatia, (1997) 4 SCC 280 , the Supreme court examined the case of a conditional resignation. The employee tendered the resignation under a Scheme on 20.12.94 to come into effect on 31.12.94 with demand of outstanding dues and to handover the relieving certificate. The submission made before the Court was that as the voluntary retirement of the employee was a conditional one and he himself understood that unless he was relieved of the duties after payment of outstanding dues, the voluntary retirement would not be effective. The Court held that as the employee rightly understood that unless he was as relieved of the duty of the post after payment of outstanding dues, the order accepting his voluntary retirement did not become effective. However, the observed as under : "It is now settled legal position that unless employee is relieved of the duty, jural relationship of the employee and employer does no come so to an end. However, the observed as under : "It is now settled legal position that unless employee is relieved of the duty, jural relationship of the employee and employer does no come so to an end. Since the order accepting the voluntary retirement was a conditional one, the condition ought to have been complied with. Before the condition could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective, therefore, no vested right has been created in favour of respondent." 18. In Nand keshwar Prasad v. Indian Farmers Fertilizers Co-operative Ltd. & Ors., (1998) 5 SCC 461 , the Apex Court held that unless the issue of resignation is controlled by conditions of service or the statutory provisions, the retirement or resignation must take effect from the date mentioned therein and such date cannot be advanced by to accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date and the employee concerned has a right to withdraw the letter of resignation before the same becomes effective. 19. In Shambhu Murari Sinha v. Product & Development India & Anr., (2000) 5 SCC 621 , the Hon'ble Supreme Court held that resignation, in spite of its acceptance, can be withdrawn before the effective date. It appears that the matter could not end there as there had been a second round of litigation between the same parties while considering the review petition, wherein the Apex Court held that there was no justification on the part of the employer to accept the resignation as the application for withdrawal had been sent before the jural relationship of employee and employer came to an end and the review was rejected and he was granted full salary and allowances for the entire period. 20. In Bank of India & Ors. v. O.P. Swarankar etc. etc., 2003 AIR SCW 313 , the Hon'ble Supreme Court rejected the contention that once the resignation is accepted, it amounts to resignation in praesenti. 20. In Bank of India & Ors. v. O.P. Swarankar etc. etc., 2003 AIR SCW 313 , the Hon'ble Supreme Court rejected the contention that once the resignation is accepted, it amounts to resignation in praesenti. The Court held that in such a case, the authority is required to take a decision and till the decision is taken, the jural relationship of employer and employee continues and the concerned employee is entitled to payment of all the salary, allowances etc., therefore, it was not possible to hold that where the offer was given in praesenti but the same could be prospective in nature, keeping in view of the fact that it came into force at a later date and that too subject to acceptance there of by the employer. The Court further held as under : "However,it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the scheme, in our considered opinion, could not have resiled there from. In J.N. Srivastava v. Union of India & Anr., AIR 1999 SC 1571 , the Apex Court again considered the case of prospective resignation tendered on 31.10.89 to come into effect on 31.1.90 and withdrawn on 2.11.89. The Court held that as it was a prospective resignation, it could be withdrawn prior to the date of its being effective. The scheme is contractual in nature. The contractual right defied by the concerned employees, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand. In Shri Lachoo Mai v. Radhey Shyam, AIR 1971 SC 2214 , the law is so stated in following terms : "The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or pubic policy. Thus, the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renunciare juri pro se introduction If their is any express prohibition against contracting out of statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. In Halsbury's Laws of England. Volume 8, Third Edition, it is stated in paragraph 248 at page 1432 As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case 15 contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the Legislature has expressly provided that any such agreement shall be void'. In Brijendra Nath Bhargava & Anr. v. Shri Harsh Wardhan & Ors., AIR 988 SC 293 , the law is stated in following terms : "It clearly goes to show that if a party gives up the advantage he could take of a position of law it is not open to him to change and say that he can avail of that ground. In Dawsons Banks Ltd. v. Nippon M.K. Kaisha, AIR 1935 PC 79 , their Lordships were considering the question of waiver as a little different from estoppel and they observed as under : On the other hand, waiver is contractual, and may constitute a cause of action, it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal agrees to waive his principal's rights then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract... If an agent, with authority to make such an agreement on behalf of his principal agrees to waive his principal's rights then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract... But in the context of the conclusion that we have reached on the basis of circumstances indicated above that it could not be held that the tenant had constructed his do chatti or balcony a wooden piece without the consent express or implied of the landlord, in our opinion it is not necessary for us to dilate on the question of waiver any further and in this view of the matter we are not referring to the other decisions on the question of waiver. In Halsbury's Laws of England. 4th Edition, Vol. 16, para 957 at page 844 i is stated : On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate express two propositions : (1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile. (2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the so course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent.' In American Jurisprudence, 2nd Edition, Volume 28, 1965, page 677-680, it is stated "Estoppel by the acceptance of benefits : Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract. instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 21. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 21. Similar view has been reiterated in R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 ; Babu Ram v. Indrapal Singh, (1998) 6 SCC 358 ; and P.R. Deshpandey v. Maruti Balram Haibatti, (1998) 6 SCC 507 , wherein it has been held that the law does not permit a person to both approbate and reprobate and as the doctrine of election is based on the rule of estoppel," the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. (Vide Ferro Alloys Corpn. Ltd. & Anr. v. Union of India & Ors., (1999) 4 SCC 149 ; Municipal 25 Commissioner, Calcutta & Ors. v. Salil Kumar Banerjee & Ors., (2000) 4 SCC 108 ; Kali Prasad & Ors. v. Deputy Director of Consolidation & Ors., (2000) 6 SCC 640 ; and Sheela & Ors. v. Firm Prahlad Rai Prem Prakash, (2002) 3 SC 375 ).In Union of India v. Wg. Comm. Parthasarathy, (2001) 1 SCC 158 , the Apex Court considered the case of a prospective resignation submitted on 31.7.85 to become effective on 31.8.86 and withdrawn on 19.2.86 but the withdrawal application was rejected on the ground that under the existing policy, there was no scope of withdrawal. The Court reiterated the law that a prospective resignation becomes effective from the date given by the employee and it can be withdrawn prior to the date of its commencement into effect. The Court further held that the right to withdraw cannot be curtailed by executive instructions or policy decision and unless there are statutory rules prohibiting such withdrawal, the right of an employee to withdraw is not except able. The Court further held that the right to withdraw cannot be curtailed by executive instructions or policy decision and unless there are statutory rules prohibiting such withdrawal, the right of an employee to withdraw is not except able. However, the Court distinguished the case from Raj Kumar (supra) and held that the facts in that case were quite distinguishable and observed as under : "The reliance placed for the appellant on the decision reported in Raj Kumar is inappropriate to the facts of this case. in that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation the termination of his employment, his services clearly stand terminated from the date on which the letter of resignation is accepted by the Appropriate Authority and in absence of any law or Rules governing the conditions of service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the Appropriate Authority," 22. The Court further held that right of an employee to continue in service till he reaches the age of superannuation, i.e. even withdrawal of resignation of a prospective nature, cannot be curtailed by circulars/policy 1 decision etc having no statutory force. 23. The law on the issue can be summarised that resignation means formal renouncement or relinquishment of office having an effect of termination of employment/service. An employee has a right to resign or Seek premature retirement, however, subject to the statutory provisions, if any, governing the same. The retirement may be sought with immediate effect/earliest possible time or prospectively, i.e. to be effective from a future late. Intention of the employee seeking retirement is of paramount importance. Acceptance of the application for retirement is to be considered to is per the law applicable, if any, otherwise also it would depend whether it enquires acceptance at all. In case relinquishment of office is of unilateral character, as was found to be in case of Moti Ram (supra), the resignation stands accepted as soon as it is tendered. But in case resignation requires acceptance, the Authority has to consider it and pass appropriate order. In case relinquishment of office is of unilateral character, as was found to be in case of Moti Ram (supra), the resignation stands accepted as soon as it is tendered. But in case resignation requires acceptance, the Authority has to consider it and pass appropriate order. The Authority may refuse to accept the resignation if an employee is seeking retirement just to avoid the adverse findings in a disciplinary proceeding pending/contemplated against him or his services cannot be dispensed with because of the nature of work/project. In case resignation is not of prospective nature. it becomes effective as soon as it is accepted by the Competent Authority and even non-communication of the said order to the re signor would be immaterial and employee cannot seek withdrawal of application thereafter. In fact, effectiveness of the resignation would depend upon the facts of an individual case However, resignation must have been tendered voluntarily and by no means it should have been obtained by coercion or fraud. Employer does not have a right to prepone the date of effectiveness of resignation as it is the sole discretion of the employee as from which date he wants to retire. In case of a prospective resignation, the employee has a right to withdraw the resignation prior to the date it becomes effective and not subsequent to it. 24. However, the principle of estoppel is also attracted and, therefore, an individual case has to be considered on its own merit. The case requires consideration in the light of the aforesaid settled legal proposition. In the instant case, the respondents have committed a grave error in accepting the application for voluntary retirement vide order dated 31 3.2001 when the petitioner had submitted an application for withdrawal on 29.3.2001 as provided in the scheme itself. In fact, there was nothing before the authority concerned to accept and the acceptance cannot be held to he valid. However, in view of the fact that petitioner had drawn the retiral benefits voluntarily without any protest, accepting the cheque dated 31.3.2001 for Rs. 1,35,878.28 and encashing it and moved the petition after expiry of about eight months, the case is squarely covered by the judgment of the Hon'ble Supreme Court in 0.P. Swarankar (supra) and the petitioner is not entitled for any relief whatsoever. 25. The petition is accordingly dismissed. *******