Judgment :- (1.) IN this writ petition the petitioner has prayed for quashing of the Order dated 13.12.2006 issued by the Assistant Commandant (Ministerial-Respondent No. 5, whereby and whereunder he negated and cancelled the earlier Order dated 16.10.2006 passed by another Assistant Commandant (Ministerial). These two Orders are contained in Annexures P-8 and P-7 respectively. (2.) THE petitioner has also made a prayer that the respondents should be directed to allow the petitioner to retire from service w. e. f. 31.3.2007 in terms of the earlier Order of the Assistant Commandant (Ministerial) passed on 16.10.2006 as contained in Annexure P-7 appended to the writ petition. (3.) THE petitioner has also made a prayer for cancellation of the movement Order issued on 17.3.2007 (Annexure P-10) whereby and whereunder the petitioner was directed to proceed for joining the 8th Battalion, which as stated in Para 12 of the writ petition, is situated at Ajnala in Punjab. (4.) THE petitioner has also made a prayer that the respondents be directed to release his retirement benefits as well as pensionary benefits in terms of the Order dated 16.10.2006 as contained in Annexure P-7 referred to above. (5.) THE short facts, as stated by the petitioner and which are necessary to be taken note of are, that after having joined as a Constable in the Border security Force on 28.6.1986, and after completing his basic training, the petitioner joined the 75th Battalion, Tripura and thereafter, was transferred to various Battalions including the 70th Battalion, 200th Battalion and the 8th battalion. Lastly, he was posted the 33rd Battalion and thereafter, by an order dated 24.4.2006 he was transferred and posted to the Office of the inspector General, B.S.F., North Bengal Frontier, Kadamtala, District darjeeling (8th Battalion, B.S.F.). (6.) HE took charge as a General Duty Clerk on 26.4.2006 and thereafter, in a proceeding, he was tried for an offence committed under section 20 (b) and 20 (c) of the B.S.F. Act whereafter he was imposed with the punishment of reduction to the rank of Constable w. e. f. 16.7.2001. Subsequently, the said punishment was commuted to forfeiture of pay and allowances for the period of 14 days w. e. f. 17.7.2001 to 30.7.2001 vide Order passed on 6.6.2006 and as contained in Annexure P-2. Subsequently, the said punishment was commuted to forfeiture of pay and allowances for the period of 14 days w. e. f. 17.7.2001 to 30.7.2001 vide Order passed on 6.6.2006 and as contained in Annexure P-2. (7.) THE remaining facts stated are not necessary to be narrated save and except to record that on 25.9.2006, the petitioner filed an application for voluntary retirement and the same was forwarded by the Superintendent administration to the Inspector General on 25.9.2006 vide Annexure p-5. Thereafter, reminders were sent on 16.10.2006 and 13.10.2006 vide Annexure P-6. Finally, on 16.10.2006, the Assistant Commandant (Ministerial) passed an Order vide Annexure P-7 whereby and whereunder the petitioner was allowed to retire from service w. e. f. 31.3.2007 after recording that the competent authority had been pleased to accept the notice of voluntary retirement w. e. f. 31.3.2007. The said Order dated 16.10.2006 reads as follows:- "office of the Inspector General Border Security Force, North bengal, FTR, Kadamtala (P.O.) Dist-Darjeeling (W.B.)Order competent authority is pleased to accept the notice of Voluntary retirement under Rule 48 (A) of CCS (Pension) Rules, 1972, read with rule 182 of the BSF Rules, 1969, served by No. 861613069 LNK prakash Singh of FTR HQ BSF NB with effect from 31.3.2007 (AN). 2. No. 861613069 LNK Prakash Singh of FTR HQ BSF NB will, thus retire from service with effect from 31.3.2007 (AN) as per Rule 30 (a) of BSF Rule, 1969. The above individual would be entitled for pension and other benefits as admissible under CCS (Pension) Rules, 1972. No. Estt.-lll (113)/nbf/2006/8632-38 dated, the 16th Oct 2006 distribution: (1) Individual concerned (2) Accounts Branch, HQ, NBF (3)Adm. Branch, HQ, NBF (4) Service record of the individual (5) GD, HQ. NBF (6) RO-II (7) Guard File. (Stephen Tirkey)Asstt. Comdt. (MIN). (Quoted Verbatim) (8.) THEREAFTER, it appears that another Assistant Commandant (Ministerial/administrative Officer) namely, Lalchand, passed another Order on 13.12.2006 informing that as approved by the competent authority, the notice of voluntary retirement which had been accepted by Order dated 16.10.2006 above, was cancelled. NBF (6) RO-II (7) Guard File. (Stephen Tirkey)Asstt. Comdt. (MIN). (Quoted Verbatim) (8.) THEREAFTER, it appears that another Assistant Commandant (Ministerial/administrative Officer) namely, Lalchand, passed another Order on 13.12.2006 informing that as approved by the competent authority, the notice of voluntary retirement which had been accepted by Order dated 16.10.2006 above, was cancelled. (9.) NO reasons were given for the cancellation but the petitioner was informed that his notice for voluntary retirement will be accepted by the assistant Commandant after the petitioner rejoined the 8th Battalion, B.S.F. The Order dated 13.12.2006 reads as follows:- "office of the Inspector General, Border Security Force, North Bengal, FTR, Kadamtala (P.O.) Dist-Darjeeling (W.B.) Order in compliance to FHQ Pers (Estt) Dte Sig No. R/3405 dated 22.11.2006 and as approved by the Competent Authority, notice of voluntary Retirement w. e. f. 31.03.2007 (AN) in respect of No. 861613069 lnk (Now Const) Prakash Singh of this HQ (under order of posting to 08 Bn BSF) accepted Vide this HQ O/no. Estt-lll (113)/nbf/2006/ 8632-38 dated 16.10.2006 is hereby cancelled. No. Estt-lll (113/nbf/2006/1048794 dated, the 13th Dec 2006 (Lalchand) (Asstt. Comdt. (Min/ao)Distribution: (1) Individual concerned For info. As approved by CA, your notice for Voluntary Retirement will be accepted by the Comdt. 08 Bn bsf on your rejoining in the Unit. (2) The Comdt, 08 Bn BSF For info, and n/a along with a copy of FHQ (Pers Dte) Sig No. R/3405 dated 22.11.2006 (3) Accounts Branch, HQ NBF (4) Adm Branch, HQ NBF (5) Service record of the individual (6) GD, HQ, NBF (7) RO-II (8) Guard File [quoted Verbatim but emphasis by bold fonts added by this Court] (10.) UPON a perusal of the aforementioned Order dated 13.12.2006 it is evident that the petitioner was informed that his Notice for voluntary retirement will be accepted once he joined under the Commandant in the 8th Battalion bsf. (11.) LEARNED Counsel for the petitioner has stated that the impugned order is mala fide for various reasons. He submitted that firstly, the punishment of reduction in rank from the Post of Lance Naik to the Post of Constable had already been commuted to forfeiture of 14 days allowances w. e. f. 17.7.2001 to 30.7.2001 and his Rank and Precedence as Lance Naik was restored vide order dated 7.6.2006 vide Order as contained in Annexure P-3. He submitted that firstly, the punishment of reduction in rank from the Post of Lance Naik to the Post of Constable had already been commuted to forfeiture of 14 days allowances w. e. f. 17.7.2001 to 30.7.2001 and his Rank and Precedence as Lance Naik was restored vide order dated 7.6.2006 vide Order as contained in Annexure P-3. By reason of the same Order, it was further directed that the petitioner will maintain the seniority of Constable w. e. f. 28.6.2006 and of Lance Naik (LNK) w. e. f. 21.3.1995. The Order dated 7.6.2006 (Annexure-P3) reads as follows:-"office of the Inspector General Border Security Force, North bengal, Frontier, Post. Kadamtala, Dist-Darjeeling (W.B.)Order whereas No. 86161306 LNK Prakash Singh of 08 Bn BSF (now ftr HQ BSF NB) was tried by SSFC for an offence committed by him under Section 20 (b) and 20 (c). (2) Whereas, the said sentence of reduction to the rank of Const w. e. f. 16.07.2001 awarded by the SSFC on 16.07.2001 has been commutted by IG BSF NB vide Ftr HQ NB Order No. Estt-lll (52)/nbf/ 2006/4638-45 dated 06 June, 2006. (3) Having been commuted, the sentence by IG BSF NB FTR from "to be reduced to the rank of Consf TO "to forfeit 14 days pay and allowances w. e. f. 17.07.2001 to 30.07.2001" and order in this effect issued vide Ftr HQ NB Order No. Estt-lll (52)/nbf/2006/4638-45 dated 06 June, 2006, the rank and precedence of Lance Naik is hereby restored to No. 86161306 Const Prakash Singh and he is eligible to draw pay and allowances as admissible to LNK accordingly, He will maintain the seniority of Constable w. e. f. 28.06.1986 and LNK w. e. f. 21.03.1995. No. ESTT-III (CF-52)/nbf/2006/4665-73 dated, the 07 June, 2006 (S. Tirkey)Asstt. Comdt. (MIN) (Quoted Verbatim) (12.) LEARNED Counsel for the petitioner submits that after having restored the Rank of Lance Naik in the manner stated in the aforementioned Order dated 7.6.2006, the respondents could not have passed the impugned Order dated 13.12.2006 vide Annexure P-8 by referring to him as "now Constable". (13.) THIS submission cannot be accepted because in their affidavit-in-opposition, the respondents have brought on record an Order that was passed prior to 16.10.2006. (13.) THIS submission cannot be accepted because in their affidavit-in-opposition, the respondents have brought on record an Order that was passed prior to 16.10.2006. They have stated that the Inspector General, B.S.F., north Bengal Frontier had no authority and/or Jurisdiction to commute the sentence of the petitioner vide Order dated 6.6.2006 and therefore, by a subsequent Order dated 14.9.2006, the Additional Director General (East), B.S.F. had set aside the order holding that the earlier Order of reduction in the rank will continue to remain in force. This Order was passed on 14.9.2006 and it is Annexure A/r 9 appended to the affidavit-in-opposition. This Order has not even been referred to by the petitioner. (14.) THUS, the argument that the petitioner could not have been described as "now Constable", cannot be accepted in view of the Order dated 14.9.2006 which was passed even earlier than the Order dated 16.10.2006. (15.) LEARNED Counsel then submits that the Order passed by the other assistant Commandant i.e., the impugned Order dated 13.12.2006 is, in effect, mala fide because while seeking to merely cancel the Order of acceptance of the Notice of voluntary retirement, it ultimately informs the petitioner that voluntary retirement will be accepted on his rejoining the Unit at the 8th Battalion, B.S.F. He submits that this therefore is a mala fide exercise of power for purposes of forcing the petitioner, even after having accepted his resignation, to go to all the way to Ajnala for purposes of getting his Notice of voluntary retirement accepted. (16.) LEARNED Counsel submits that the impugned Order is also mala fide because the respondents never served the order of transfer upon the petitioner. They only served the release Order as has been stated in paragraph-14 of the writ petition. (17.) IN the affidavit-in-opposition filed by the respondents, they have stated that as per the Service Record of the petitioner, he was enrolled in the B.S.F, as a Constable on 28.6.1986 and before joining the Frontier headquarters, North Bengal, the following punishments had been inflicted upon him:-(a) 28 days Rigorous Imprisonment for Committing Offence under section 19 (b) of BSF Act on 27.7.1992. (b) Severely being reprimanded for committing offence of under section 19 (a) of BSF Act on 19.03.1997. (b) Severely being reprimanded for committing offence of under section 19 (a) of BSF Act on 19.03.1997. (c) Reduction to the rank of Constable from the rank of Lance naik for committing offences under Sections 20 (b), 20 (c) and 40 of the BSF Act on 16.7.2001. (d) Reduction of pay and allowances for 14 days for committing offence under Section 19 (a) of the BSF Act dated 29.4.2003. (e) 14 days Rigorous Imprisonment in force custody for committing offences under Sections 19 (a), 19 (c) and 40 of the BSF act dated 26.7.2003. (f) 7 days Rigorous imprisonment in forces-custody for committing offence under Section 40 of the BSF Act dated 11.4.2005. (g) Written warning by Commandant, 33 Bn BSF vide letter no. Estt/33 Bn BSF/ Warning 706/231-32 dated 11.2.2006 for absenting "from service without leave of 100 days. (18.) THESE respondents have stated that the petitioner filed his application for voluntary retirement on 25.9.2006 but in the said application, he did not mention the date from which he desired his retirement to take effect. His application for voluntary retirement has been brought on record vide Annexure A/r2 at pages 23 and 24 of the affidavit-in-opposition. The respondents have stated that in the meantime, the Order of transfer vide annexure A/r/3 was issued transferring to the petitioner to the 8th battalion. This was issued by Order signed on 29.9.2006 but it appears to have been issued on 3.10.2000 as will be evident from Annexure A/r3 itself. It has been stated by these respondents that the application for voluntary retirement which the petitioner had submitted again on 13.10.2006 vide annexure A/r4 was wrongly accepted by the then Inspector General, BSF, north Bengal on 16.10.2006 without ascertaining as to whether the petitioner had completed 20 years qualifying service or not and as per the service records of the petitioner, there was a shortfall of 274 days of non-qualifying service. In the other paragraphs, the respondents have stated that the petitioner had overstayed leave and these details have been given by the respondents in their affidavit-in-opposition in Paragraphs-1 (vi) to (ix). In the other paragraphs, the respondents have stated that the petitioner had overstayed leave and these details have been given by the respondents in their affidavit-in-opposition in Paragraphs-1 (vi) to (ix). (19.) IN the aforementioned background, the respondents have stated that the application for voluntary retirement was wrongly accepted without ascertaining as to whether the petitioner had completed 20 years of qualifying service or not and therefore, the acceptance of the Notice of voluntary retirement made on 16.10.2006 vide Annexure P-8 was rightly cancelled by the subsequent Order dated 13.12.2006 as contained in Annexure P-8. (20.) LEARNED Counsel for the respondents has submitted, with reference to Paragraph-12 of the affidavit-in-opposition, that under the provisions of rule 48a of the Central Civil Service (Pension) Rules, 1972, the petitioner could not have been allowed to retire because he had not completed the requisite 20 years qualifying services because of the reasons stated above. (21.) RULE 48a specifies that at any time, after a Government servant has completed 20 years qualifying service, he may, by giving Notice of not less than 3 months in writing to the Appointing Authority, retire from service. (22.) RULE 3 (q) defines "qualifying Service" to mean "service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible" under the said Rules. (23.) THE petitioner had joined service on 28.6.1986. He has himself stated in Paragraph-11 of his reply to the affidavit-in-opposition that he has completed 20 years qualifying service on 17th February, 2007. Paragraph-11 of his reply is quoted below but the sentence where he admits that he completed 20 years qualifying service on 17th February, 2007 is underlined and highlighted with bold fonts. The same reads as follows:- "with regard to the statements made in Paragraph-4 (v) of the said opposition which are matters of record. In this regard, I state that I have made an application for voluntary retirement to the competent authority after completion of 20 years qualifying service and the competent authority forwarded my application for voluntary retirement from service along with service records to the External Audit Department for verification and clearance and after giving clearance by the External audit Department and after verifying the qualifying service of 20 years, the competent authority have passed the Order of acceptance of my voluntary retirement from service by order dated 16.10.2006. In this regard I categorically deny that the Inspector General had accepted my application for voluntary retirement from service by order dated 16.10.2006 wrongly and without ascertaining the completion of 20 years qualifying service. In this regard I state that I have completed 20 years qualifying service on 28th June, 2006 and after adding Dies non period/ extra leave period 229 days I have completed my 20 years qualifying service on 17th February, 2007 and my voluntary retirement was accepted by the competent authority w. e. f. 31st March, 2007. Therefore, the order passed by the competent authority on 16.10.2006 is legally valid one. In this regard I further state that the answering respondents did not disclose on what ground the order of acceptance is wrong and nothing was reflected in the order of cancellation dated 13th December, 2006. " [quoted verbatim but emphasis by bold fonts with underlining added by this Court] (24.) THE petitioner applied for voluntary retirement on 16.10.2006 and therefore, by that time, he had not even completed 20 years qualifying service. The definition of the words "qualifying service" as given in Rule 3 (q) has been further clarified in Rule 13 Chapter III of the CCS Pension Rules. The same lays down that subject to the provisions of the said Rule, qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in officiating and/or temporary capacity. The said Rule however states that such service shall count provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. (25.) NOW under Rule 23, we find that in matters relating to suspension, the period of suspension shall not count as qualifying service unless the competent authority expressly declares that it shall count. Rule 23 reads as follows:-"23 Counting of periods of suspension. Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified; in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare. " [quoted Verbatim] (26.) ALTHOUGH this is not a case of suspension but we find that at least under Rule 23, the period spent under suspension has necessarily to be declared that it shah count, failing which the said period cannot count for qualifying service, being interrupted by suspension. (27.) IN the instant case and from what has been noticed above, it appears that the petitioner was placed under 28 days rigorous imprisonment on 27.7.1992. Thereafter, he was again placed for 14 days rigorous imprisonment by order dated 26.7.2003 and then again, under rigorous imprisonment for 7 days by order dated 11.04.2005. These days must therefore be reckoned as serious interruptions. The total interrupted period comes to 49 (28 +14+7) days. (28.) NOW if the date of joining as 28.6. 1986 is reckoned, then 20 years qualifying service would be 27.6.2006. So far as the other punishments namely reprimand, reduction in rank, reduction of pay and allowances and written warning are concerned, those cannot be added for purpose of depriving the petitioner the benefit of 20 years service but we do find that the written warning was for absence from service without leave for 100 days, which must also be counted, as it was never regularised. (29.) THUS, the total period of interruption runs to 149 (100 + 49) days which comes to approximately 5 (five) Months. (30.) THUS, if these 5 (five) Months are added to 27.6.2006, then the 20 years qualifying period would be somewhere around 27.11.2006. In other words, the petitioner was not even eligible on the date on which he had applied, i.e., 16.10.2006, and therefore, by cancelling the acceptance by a subsequent order, the respondents cannot be said to have acted illegally. (31.) FOR the foregoing reasons, this Court is not inclined to accept the plea of mala fides. On the contrary, and for the foregoing reasons, it must be held that the acceptance of the Notice for voluntary retirement on16.10.2006 was not a lawful acceptance at all and therefore, the argument of the learned Counsel to the effect that once voluntary retirement has been accepted the same cannot be withdrawn, is not applicable in the facts and circumstances of this case. (32.) THIS Court also is not inclined to accept the submission made in paragraph-14 of the writ petition to the effect that the order of transfer was not separately issued as has been stated in Paragraph-14. In this context, the respondents have brought on record the Order dated 3.10.2006 (Annexure a/r3) issued even prior to the acceptance of the Notice for voluntary retirement on 16.10.2006 showing that the petitioner was transferred to the 8th Battalion. This is the order passed from New Delhi and it cannot be brushed aside by saying that such an order was never passed because it is an order passed under a regular memo issued by the Government of India, Ministry of Home affairs, Directorate General of Border Security Force. (33.) HOWEVER, from the impugned Order it is evident that while cancelling the Order dated 16.10.2006, (obviously for the reasons that the acceptance was made without counting the period of qualifying service), the respondents have nonetheless informed the petitioner that his Notice for voluntary retirement will be accepted by the Commandant, 8th Battalion B.S.F. on the petitioners rejoining in that unit. This order is obviously not erroneous because by Order dated 3.10.2006, the petitioner had already been transferred to the 8th Battalion. However, the release Order has been passed on 17.3.2007 but in between, so many developments have taken place and which includes the wrong acceptance of the Notice of voluntary resignation and the subsequent cancellation thereof. (34.) THE petitioner has himself accepted that even after deducting the extraordinary leave as well as the Dies non periods, he would be completing 20 years qualifying service on 17.2.2007. That being the position, since the petitioner has now, after calculating of the aforementioned periods, and as per his own admission, has completed his qualifying service on 17.2.2007, this Court disposes of the writ petition by directing that since the petitioner had already been transferred to the 8th Battalion as early on 3.10.2006, he will now proceed to join the said 8th Battalion and upon his joining, the respondents will not take any coercive steps against him and would accept the voluntary retirement of the petitioner in terms of their assurance given in their letter dated 13.12.2006, and would further relieve him in accordance with law without causing any further delay in the matter. With the aforesaid observations and directions this writ petition is disposed of.