Honble ASOPA, J.–By the instant writ petition the petitioner seeks to challenge premature retirement order dated 19-5-1998 (Anx. 3) and order dated 21-5-1998 (Anx. 4) whereby the petitioner was permitted to proceed on premature retirement by 15-6-1998 and order releasing retirement dues on clearance of the documents/particulars was also passed. The petitioner has further prayed that the order of premature voluntary retirement dated 19-5-1998 be treated as cancelled and the respondents be directed to treat the petitioner in service till the date of his retirement i.e. 31-5-2000. (2). The facts, in brief, of the case, as per the petitioner are that after promotion to the rank of Colonel in AMC he was seconded to IAF in the rank of Group Captain and while working as Group Captain the petitioner submitted an application in the prescribed proforma on 26-8-1997 for premature retirement from service to the Air Force Authorities, to be made effective from 1-4-1998 on the ground of supersession. The said application was referred to the Headquarter, Maintenance Commander, IAF (PMO) Nagpur by the hospital authorities on 27-8-1997 and on 19-5-1998 (Anx. 3), the Raksha Mantralaya, Sashatra Sena Chikitsa Sewa, New Delhi sent a letter to the Director General, Medical Services (AIR) informing that the petitioner is permitted to proceed on premature retirement by 15-6-1998. Subsequently, the petitioner filed an application on 28-5-1998 (Anx. 5) requesting that the order of premature retirement dated 21-5-1998 be cancelled on the ground that his superannuation order was issued on 4-3-1998 and his retirement papers in pursuance thereof has been prepared and he may be permitted to superannuate w.e.f. 31-8-1998 which will make the difference of 2-1/2 months. Then again, withdrawal application for permission to serve as per new policy was filed on 9-6-1998 (Anx. 7). The policy detailed out in writ petition is not allowing retirement for two years i.e. 31-5-2000. It is stated in the writ petition that both applications for cancellation of the premature retirement order were filed on 28-5-1998 and 9-6-1998 before the effective date of retirement i.e. 15-6-1998. Therefore, the latter one was liable to be accepted but the respondents have arbitrarily not passed any final order on the said application. Then the petitioner gave notice for demand of justice but of no avail. (3). Therefore, the latter one was liable to be accepted but the respondents have arbitrarily not passed any final order on the said application. Then the petitioner gave notice for demand of justice but of no avail. (3). The respondents in their reply have stated that with regard to the cause of action that arose in 1998, the writ petition has been filed in the year 2000 and therefore, the writ petition suffers from delay. On merits, it has been stated that the application dated 26-8-1997 has been accepted vide order dated 19-5-1998 effective from 15-6-1998. Subsequently, another order dated 21-5-1998 was passed for release of the pensionary benefits on clearance of the documents and particulars. Thereafter, no relationship of master and servant remains and therefore, the petitioner has no locus standi to withdraw the said application. (4). Submission of the counsel for the petitioner is that as per rule 16 of the Army Rules, 1954 and Para 105 (e) and (h) of the Regulations of Army (Revised Edition 1957) the application is required to be submitted for premature retirement only after weighing the pros and cons of premature retirement and further in case an employee is forced to seek withdrawal of the application due to unforeseen reasons, then he can apply to the Central Government. Here, in the instant case, the petitioner has submitted that although his natural superannuation date at the time of submission of the premature retirement application was 31-5-1998 but the restriction was imposed on retirement and resignation for two years and therefore, superannuation period was extended up to 31-5-2000 which is an unforeseen circumstance and the petitioner could not have visualized it on 26-8-1997 i.e. the date of submission of application for premature retirement. Otherwise also, premature retirement was sought on account of supersession but subsequently the petitioner reconciled with the position and submitted the said application for withdrawal of the premature retirement application therefore, in accordance with the said Regulations, the petitioner is entitled to withdrawal of the premature retirement application. (5). In addition to the above, counsel submits, that as per the Supreme Court judgment also, the petitioner is entitled to withdraw premature retirement application before the effective date but the respondents have acted arbitrarily in not passing any order on the application for cancellation/withdrawal of premature retirement applications dated 28-5-1998 and 9-6-1998 before the effective date i.e. 15-6-1998. (6). (5). In addition to the above, counsel submits, that as per the Supreme Court judgment also, the petitioner is entitled to withdraw premature retirement application before the effective date but the respondents have acted arbitrarily in not passing any order on the application for cancellation/withdrawal of premature retirement applications dated 28-5-1998 and 9-6-1998 before the effective date i.e. 15-6-1998. (6). Counsel for the petitioner has placed reliance on P.K. Ramchandra Iyer and others vs. Union of India and others (1984) 2 SCC 14, Balram Gupta vs. Union of India and another ( AIR 1987 SC 2354 ), J.N. Srivastava vs. Union of India (AIR 1999 SC 1571), Shambhu Murari Sinha vs. Project & Development India & another ( 2000 (5) SCC 621 ) and a Division Bench judgment of this Court in Board of Secondary Education, Ajmer & Ors. vs. Smt. Sharda Pareek reported in 2005(10) RDD 4092 (Raj.). (7). Strong reliance has been placed by counsel for the petitioner on J.N. Srivastava vs. Union of India and others (AIR 1999 SC 1571) wherein it has been held that it is now well settled that even if the voluntary retirement notice is moved by an employee and get accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. (8). Submission of Mr. Bagri, counsel for the respondents is that once the premature retirement application is accepted, no application can even be maintained before the effective date which in the instant case is 15-6-1998. Otherwise also, the respondents have submitted that the petitioner has accepted the factum of his premature retirement from 15-6-1998 or at the most 31-8-1998 as per his volition and undertaking. Therefore, the principle of acquiescence is applicable and further the relationship of master and servant came to an end on 15-6-1998, therefore, the subsequent change in the policy resulting in extension of age up to 31-5-2000 will not apply in case of the petitioner. In support of the aforesaid contention, counsel for the respondents has relied on a judgment of the Supreme Court in Vice Chairman and Managing Director, A.P.S.I.D.C. Ltd. And another vs. R. Varaprasad & Ors. (2003(3) All India SLJ 114). (9). I have gone through record of the writ petition and further considered rival submission of the counsel for the parties. (10). (2003(3) All India SLJ 114). (9). I have gone through record of the writ petition and further considered rival submission of the counsel for the parties. (10). The application dated 26-8-1997 and orders dated 19-5-1998 and 21-5-1998 passed thereon, the applications dated 28-5-1998 and 9-6-1998 for withdrawal of the premature retirement application dated 26-8-1997, read as under: Application dated 26-8-1997 "Gp Capt MS Bhatnagar (19578-S) Med No. 7, Air Force Hospital, Nathu Singh Road, Kanpur cantt- 208 004 26 Aug 97 Air Officer Commanding-in-Chief HQs MC. IAF Vayusena Nagar, Nagpur - 440 007 PREMATURE RETIREMENT Sir, 1. I was commissioned into the AMC and seconded to the IAF on 23 Mar. 1988. I am on the posted strength of this Hospital since 23 Jan., 1995 as Commanding Officer. I have completed 34 years of service and have had very satisfying tenures in various AF Hospitals/Stations. I have worked sincerely and to the satisfaction of my superiors and in return I have been looked after well and have had a very contended and satisfying service in the Air Force. Unfortunately, I have been overlooked for promotion and have been superseded. Under the circumstances I am left with no choice, but to seek premature retirement. 2. It is requested that I may be released from service wef 01 April 1998 on premature retirement. This time would help in settle down couple of domestic commitments. Yours sincerely Sd/-" Order dated 19-5-1998 "Raksha Mantralaya Karyalaya Maha Nideshak Sashastra Sena Chikitsa Sewa New Delhi 110 001 1947/PR/DGAFMS/DG-IX 19 May, 1998 The Dir Gen Medical Service (Air) Air HQ/DGMS (Air) RK Puram, New Delhi. PREMATURE RETIREMENT: GP. CAPT MS BHATNAGAR (MR 1947) 1. Reference our letter No. 1947/PR/DGAFMS/DG.-IX dated 24 Mar. 98. 2. Gp Capt MS Bhatnagar (MR 1947) HQ Central Air Command, Allahabad is permitted to proceed on premature retirement by 15 Jun. 1998. Other instructions hold good. Sd/- A Kaushik Lt. Col RPO/DG-IX Kritey Maha Nideshak Sashastra Sena Chikitsa Sewa Copy to : CDA (AF) Dehradun <+><+><+><+><+><+><+><+><+>Dy. CDA (AF), New Delhi <+><+><+><+><+><+><+><+><+>Dy. CDA (AF), Penl Cell <+><+><+><+><+><+><+><+><+>AFMS (O) Funds c/o AFMC Pune <+><+><+><+><+><+><+><+><+>AMC Centre & School Lucknow <+><+><+><+><+><+><+><+><+>Air HQ/PO-2 <+><+><+><+><+><+><+><+><+>Air HQ Dte of Insurance <+><+><+><+><+><+><+><+><+>Constt. Sectt. DG-1A, DG-ID, CR cell <+><+><+><+><+><+><+><+><+>Min of Def/D (Med), MPRS (O)". Order dated 21-5-1998 "Tele: 3377357 Air Headquarters Vayu Bhawan New Delhi 110 011 AIR HQ/2:901/PR/PO2 (B) 21 May, 98 HQ CAC, IAF PREMATURE RETIREMENT : AMC OFFICERS 1. Sectt. DG-1A, DG-ID, CR cell <+><+><+><+><+><+><+><+><+>Min of Def/D (Med), MPRS (O)". Order dated 21-5-1998 "Tele: 3377357 Air Headquarters Vayu Bhawan New Delhi 110 011 AIR HQ/2:901/PR/PO2 (B) 21 May, 98 HQ CAC, IAF PREMATURE RETIREMENT : AMC OFFICERS 1. Government has approved the premature retirement in respect of under mentioned officer from service at his own request with NE benefits as due to him with effect from the date as mentioned against his name: Rank <+><+><+><+><+>Name No. & Branch <+><+><+><+><+><+><+><+>Date <+><+><+><+><+><+><+><+>Unit GP Capt <+><+>MS Bhatnagar <+><+><+><+><+><+><+><+><+><+><+><+><+>15 June<+><+><+>HQ CAC, IAF (AF-19578) (MR-1947) <+><+><+><+><+><+><+><+><+><+><+><+><+><+><+>98 (AD) 2. Accordingly, the name of the above named officer may please be deleted from the Retirement Order issued vide this Hqrs. letter No. AIR PQ 21901/RO/PG-2(B) dated 04 Mar 98. 3. It is requested that clearance be completed by the due date as per AFO 0977/76. List of clearance documents/particulars required to be sent to this HQ is enclosed. Time and date of final clearance as well a date of SOS should be notified to this HQrs and office of DGAFMS/DG-1(X) immediately on completion of clearance. The copies of NE PORs are to be forwarded to all concerned including the office of the DGAFMS/DG-1 (x). 4. The officer is entitled to avail encashment of leave under the existing orders. Application -cum-Sanction for encashment of accumulated service leave as per the format given at appendix `C to AFO-1/88 along with details of service, furlough and sick leave availed from date of commission to year of retirement with PORs No. as mentioned at Para II C of said AFO be forwarded to this HQ (ADPO-1(G). Also family particulars as per Appendix `B to ADPO 3 (E) duly authenticated by unit adopo for issue of certificate of service. In the absence of leave clearance and certificate of service, grant of pension and other dues/NE benefits will be delayed. 5. C Adm C is to liaise writ UABSO and to forward. No Demand certificate to AFCAD as soon as the officer vacates the allotted accommodation. 6. The address of the officer is to be notified to this HQ (DOP/ DSAFMS/ DG-1 (XI) after his retirement. 7. FORAFCAD ONLY Please ensure that the officer clears all outstanding dues before his NE benefits are finalized and paid to him. Sd/- N Maniaccan SCSO DOPO 2 (A) For AOP" Application dated 28-5-1998 "Gp Capt. M.S. Bhatnagar Dy. P.M.O. Headquarter Central Air Command Bumrauli, Allahabad-12. 7. FORAFCAD ONLY Please ensure that the officer clears all outstanding dues before his NE benefits are finalized and paid to him. Sd/- N Maniaccan SCSO DOPO 2 (A) For AOP" Application dated 28-5-1998 "Gp Capt. M.S. Bhatnagar Dy. P.M.O. Headquarter Central Air Command Bumrauli, Allahabad-12. CAC/19578/Per/2 Air Officer Commanding-in-Chief HQ Central Air Command Bamrauli, Allahabad-12. REQUEST FOR CANCELLATION OF PREMATURE RETIREMENT GROUP CAPTAIN MSBHATNAGAR (19578) MED 1. Respectfully, I submit following points for your sympathetic consideration please: (a) In Sep. 97 while serving as a Commanding Officer, 7 AF Hospital, Kanpur under Maintenance Command, I applied for Premature retirement w.e.f. 30 Apr 98. The orders were some how delayed and now my premature retirement has been approved w.e.f. 15 Jun 98 vide Air HQ letter No. 21901/PR-2 dated 21 May 98. (b) In the meantime, my order for superannuation were also issued wef 31 Aug 98 vide Air HQ letter No. Air HQ 21901/PF/PO2(B) dated 4 Mar 98. (c) All retirement documents including release medical board papers have already been submitted to Air HQ as per Air HQ letter No. 21901/PF/PO-2(B) dated 4 Mar 98. (d) There is only 2-1/2 months difference between my premature retirement date i.e 15 Jun 98 and date of superannuation i.e. 31 Aug 98. (e) If I have to proceed on premature retirement as per the latest order, all document including medical board will have to be prepared again. This will delay the finalization of my NE benefits. (f) Recent increase in retirement age is not likely to be applicable in respect of medical/dental officers. 2. In view of the above, I request that the Premature retirement order now issue w.e.f. 15 Jun 98 vide Air HQ letter No. 21901/PR- 2 dated 21 May 98 be cancelled and I may be permitted to superannuating wef 31 Aug 98 to enable me to get my NE benefit in time. Sd/- M.S. Bhatnagar Remarks by Section Commander Recommended & forwarded. Sd/- S.D. Kulkarni Air Cmde Date : 28 May 98" Application dated 9-6-1998 "Tele: 633261 HQ Central Air Command Bamrauli, Allahabad- 211 012 9 Jun 98 CAC/2821/3/2/P2 Air HQ (VB) (DDPO-2(A) New Delhi - 110 011 Air HQ (RKP) (JDGMS (A) New Delhi 10 066 REQUEST FOR CANCELLATION OF PREMATURE RETIREMENT OF CAPT MS BHATNAGAR (19578) MED 1. Sd/- S.D. Kulkarni Air Cmde Date : 28 May 98" Application dated 9-6-1998 "Tele: 633261 HQ Central Air Command Bamrauli, Allahabad- 211 012 9 Jun 98 CAC/2821/3/2/P2 Air HQ (VB) (DDPO-2(A) New Delhi - 110 011 Air HQ (RKP) (JDGMS (A) New Delhi 10 066 REQUEST FOR CANCELLATION OF PREMATURE RETIREMENT OF CAPT MS BHATNAGAR (19578) MED 1. Enclosed herewith please find an application submitted by the above named officer of this Headquarter for cancellation of premature retirement an permission to serve as per the new policy, for your HQs necessary action. 2. The application is recommended by this HQ. Sd/- TN. Dhawan Wg Cdr OIC P-2 For AOC-in-C" Encl. As stated (11). Law of voluntary retirement is well settled to the effect that voluntary retirement can be withdrawn before the effective date. The judgment in R. Varaprasad (supra) cited by counsel for the respondents has already been distinguished by the Division Bench of this Court in Smt. Sharda Pareek (supra) in para 8 thereof while considering other judgments also. The facts of the present case are more nearer to that of Smt. Sharda Pareek (supra). Paras 4 and 8 of the judgment in Smt. Sharda Pareek (supra) read as under: "4. Learned Single Judge after considering contents of letters, intentions of parties, the proceedings on the aforesaid letters as well as legal position on the issue followed the judgments in Balram Gupta vs. Union of India & Anr., AIR 1987 SC 2354 ), J.N. Srivastava vs. Union of India AIR 1999 SC 1571 and Shambhu Murari Sinha vs. Project & Development India & Anr. 2000(5) SCC 621 . Further on the issue of conditional resignation/voluntary retirement, learned Single Judge while relying on the judgment in P.K. Ramchandra lyer and others vs. Union of India and others ( 1984 (2) SCC 141 held that looking the case from any angle, the impugned order accepting voluntary retirement of the petitioner cannot possibly stand, the same is quashed." "8. Further on the issue of conditional resignation/voluntary retirement, learned Single Judge while relying on the judgment in P.K. Ramchandra lyer and others vs. Union of India and others ( 1984 (2) SCC 141 held that looking the case from any angle, the impugned order accepting voluntary retirement of the petitioner cannot possibly stand, the same is quashed." "8. In case of R. Varaprasad (supra), before the Honble Supreme Court, there was a voluntary Retirement Scheme, which partakes the character of an invitation to treat not an offer as known in law relating to contract and an employee, who opt retirement under such a scheme with full knowledge of the terms where usually there is no provision for withdrawal of the option, therefore, when such option is accepted by the employer, such an employee cannot be turn around and withdraw the option already exercised nor could such employee make a claim contrary to the terms of the scheme. In service jurisprudence, option once exercised in final and the same cannot be withdrawn subsequently specifically under the terms of the scheme and law on the subject of option. Usually, in case of a Voluntary Retirement Scheme, there is cut off date, then provision of option and then a particular date after which the employee is stand retired/relieved. These dates and option are usually not altered. The aims and object of such scheme is to rationalize the strength. The Honble Supreme Court in R. Varaprasad while dealing with the Voluntary Retirement Scheme having no specific provision for withdrawal and general provision for withdrawal usually not made applicable to such schemes. In the instant case, there is provision of voluntary retirement which can be invoked by employee on completion of 15 years of service wherein there is also a provision of withdrawal of the voluntary retirement under Regulation 22(F) before the expiry of the notice period, therefore, on facts also the said case of Honble Supreme Court of R. Varaprasad is clearly distinguished." (12). Before proceeding further, it would be useful to refer Rule 16 of the Army Rules, 1954 and Para 105 (h) of the Regulations as also clause 23 of the Instructions issued by Headquarter, relied and quoted by the respondents at page 13, 14 and 15 of the writ petition. The same read as under: Rule 16 of the Army Rules, 1954 "16. The same read as under: Rule 16 of the Army Rules, 1954 "16. Release:-A person subject to the Act may be released from the service in accordance with the Releasing Regulations for the Army or such other regulations as may be made from time to time." Para 105 of the Regulations "105. Application for Resignation/Retirement:- (a)............ (b)............ (c)............ (d)............ (e)............ (f)............ (g)............ (h) If an officer is forced to seek withdrawal of his application due to unforeseen reasons after his request for premature retirement/resignation but before he is retired he may apply to the Central Government and his request may be granted at the discretion of the Central Government." Clause 23 of the Instructions "23. Government decision on a request for premature retirement, resignation is final. However, if an officer whose application for premature retirement/resignation from the Army has been accepted, wishes to withdraw his application due to unforeseen circumstances, he may apply to the Central Government through proper channel and his request will be decided on merits." (13). I am of the considered opinion that change in the policy of retirement made effective from 31-5-1998 was an unforeseen circumstance which could not have been visualized by the petitioner on the date of submission of application for premature retirement i.e. 26.81997. The aforesaid unforeseen circumstance of change in the policy of the respondents was visualized by the petitioner before the effective date of premature retirement 15-6-1998 i.e. on 9-6-1998 on which date he made an application for cancellation of the premature retirement order dated 19-5-1998 and consequential order dated 21-5-1998 and requested that he may be given a chance to serve as per the new policy. Therefore, as per Para 105 (h) of the Regulations and Clause 23 of the Instructions issued by the Headquarters, the petitioner was entitled to withdrawal/cancellation of premature retirement but no final action was passed by the respondents despite recommendation of the concerned officer which is arbitrary apart from being contrary to the aforesaid Para 105(h) and Clause 23 of the Instructions issued by the Headquarters. (14). In addition to the above, Supreme Court while dealing with the cases of other services, has taken into consideration the change in perception and other altered circumstances including domestic and personal, for permitting withdrawal of voluntary retirement application for the reason that even after acceptance the relationship of master and servant continues till the effective date. (14). In addition to the above, Supreme Court while dealing with the cases of other services, has taken into consideration the change in perception and other altered circumstances including domestic and personal, for permitting withdrawal of voluntary retirement application for the reason that even after acceptance the relationship of master and servant continues till the effective date. The aforesaid judgments of the Supreme Court have been referred and relied by the Division Bench of this Court in Smt. Sharda Pareek (supra) wherein judgment rendered in the case of R. Varaprasad (supra) has been distinguished. Moreover, Supreme Court in J.N. Srivastava (supra) has held that voluntary retirement application can be withdrawn before the effective date. (15). In view of the above, the contentions of the petitioner are accepted and contentions of the respondents are rejected. (16). Accordingly, inaction on the part of the respondents in not passing final order of withdrawal/cancellation of premature retirement is declared illegal. (17). Consequently, the writ petition is allowed, premature retirement order dated 19-5-1998 and consequential order 21-5-1998 are quashed. The petitioner shall be deemed to retire from service on 31-5-2000 as per the new policy. Consequential benefits shall be released to the petitioner within a period of three months from today.