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2010 DIGILAW 186 (MP)

GANPATLAL WAS v. STATE OF MP

2010-02-15

SHANTANU KEMKAR

body2010
Judgment Shantanu Kemkar, J. ( 1. ) :-The petitioner was working on the post of peon in the office of Deputy Registrar, Neemuch under the Commercial Tax Department of the State Government. He gave a notice of three months to the respondents on 07.11.2006 (Annexure P-l) along with Form No. 28 under Rule-42 (l)(a) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (for short Pension Rules) seeking his voluntary retirement w.e.f. 07.02.2007. Before expiry of the notice period the petitioner submitted an application on 02.12.2006 (Annexure P-3) seeking withdrawal of his application dated 07.11.2006 for voluntary retirement. However, on 07.02.2007 the fourth respondents communicated its decision dated 09.11.2006 (Annexure P-10) to the petitioner informing him that his prayer for voluntary retirement has been accepted. Aggrieved the petitioner has filed this petition. ( 2. ) The case of the petitioner is that he having applied for withdrawal of the application for voluntary retirement by giving reasons much prior to the effective date given in the notice for voluntary retirement his prayer for withdrawal of the application for voluntary retirement ought to have been considered favourably in view of Rule-42(2) of the Pension Rules. He submits that the action of the respondents in not allowing his application for withdrawal of application for voluntary retirement is illegal and is contrary to the law laid down by the Supreme Court in the case of Balram Gupta Vs. Union of India and another (AIR 1987 Supreme Court 2354), and the orders of this Court in the case of Jauhari Vs. Madhya Pradesh Laghu Udyog Nigam Maryadit, Bhopal ( 2004 (2) M.P.H.T. 533 ), Director General, Employees State Insurance Corporation and Another Vs. Puroshottam Malani ( 2007 (1) M.P.H.T. 173 ) and in Jaggannath Prasad Vs. M. P. State Electricity Board and others 2003 (2) M.P.H.T. 7 (NOC). In the circumstances a prayer has been made by the petitioner that the impugned order dated 09.11.2006 (Annexure P-10) which was communicated on 07.02.2007 be quashed and the petitioner be directed to be reinstated with the consequential benifits. ( 3. ) The respondents have filed reply and have stated that the petitioners application dated 07.11.2006 giving notice of three months for voluntary retirement was allowed on 09.11.2006. His application dated 02.12.2006 for withdrawal of application for voluntary retirement was considered but it was not found fit to allow the same. ( 3. ) The respondents have filed reply and have stated that the petitioners application dated 07.11.2006 giving notice of three months for voluntary retirement was allowed on 09.11.2006. His application dated 02.12.2006 for withdrawal of application for voluntary retirement was considered but it was not found fit to allow the same. In support copy of the note-sheet has been filed as Annexure R-l1. Thus, according to the respondents no case is made out to interfere into the impugned order and the action of the respondents. ( 4. ) Having heard learned counsel for the parties and after considering the provision contained in Rule-42 of the Pension Rules as also law laid down in the case of Balram Gupta Vs. Union of India and another (supra), Jauhari Vs. Madhya Pradesh Laghu Udyog Nigam Maryadit, Bhopal (supra), Director General, Employees State Insurance Corporation and Another Vs. Puroshottam Malani (supra) and Jaggannath Prasad Vs. M. P. State Electricity Board and others(supra). I am of the view that this petition deserves to be allowed. Admittedly the petitioner had submitted an application dated 07.11.2006 seeking voluntary retirement w.e.f. 07.02.2007 in Form-28 by giving three months notice as per the requirement of Rule 42(1)(a) of the Pension Rules. Before the intended date of voluntary retirement he submitted an application dated 02.12.2006 for withdrawal of the said application. However, as would be clear from the note-sheet Annexure R-l1 the petitioners prayer of withdrawal of the application for voluntary retirement was rejected and for the first time on 07.02.2007 the respondents served upon the petitioner the order dated 09.11.2006 accepting his application for voluntary retirement. The prayer of the petitioner was rejected by the respondents observing no sufficient ground exists to allow the petitioner to withdraw his application for voluntary retirement. On going through the application dated 02.12.2006 it is revealed that the petitioner did assign the reasons for withdrawal of his application for voluntary retirement. It was stated by the petitioner that in the interest of the future of his family he wants to withdraw his prayer for voluntary retirement. The reason for withdrawal was a justified reason and in all fairness keeping in view the powers vested in it under Rule 42 (2) of the Pension Rules the fourth respondent ought to have allowed the prayer of withdrawal of application for voluntary retirement made by the petitioner. ( 5. The reason for withdrawal was a justified reason and in all fairness keeping in view the powers vested in it under Rule 42 (2) of the Pension Rules the fourth respondent ought to have allowed the prayer of withdrawal of application for voluntary retirement made by the petitioner. ( 5. ) In some what similar facts and circumstances in the case of Balram Gupta Vs. Union of India and another (supra) the Supreme Court had allowed such prayer for withdrawal with a direction to put back in job the employee with all consequential benefits. It was observed by the Supreme Court :- "Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. But in the facts of the instant case the resignation from the Government servant was to take effect at the subsequent date prospectively and the withdrawal was long before that date. Therefore, the appellant, in our opinion, had locus." It was further observed that :- "Approval is not ipse dixit of the approving authority who has the statutory authority must act reasonably and rationally. What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the Government from withholding the withdrawal". The Supreme Court also observed that :- "In the circumstances of the case, it must be held that there was no valid reason for withholding the permission by the Government. It must be held further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange ones future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement." ( 6. ) Having regard to the aforesaid. ) Having regard to the aforesaid. I am of the view that the petitioner having submitted the application seeking withdrawal of the application for voluntary retirement much before the effective date of his voluntary retirement and having regard to the reasons stated by him seeking withdrawal of the application for voluntary retirement the fourth respondent ought to have allowed his prayer for withdrawal of the application for voluntary retirement more particularly when it is not the case of the respondents that acceptance of application for voluntary retirement of the petitioner would jeopardise the administration. In not allowing the prayer so made and in allowing the application for voluntary retirement the respondents have committed gross illegality. The action of the respondents is 1904] Anandi Prasad Dwivedi vs. State of M.P. [I.L.R.[2010]M.P, contrary to Rule-42 of the Pension Rules and the law laid down in cases referred to above. ( 7. ) Accordingly the petition is allowed the impugned order dated 09.11.2006 (Annexure P-10) and the further proceedings on the basis of the said order and the decision taken vide Annexure R-ll are quashed. The petitioner is directed to be reinstated in service with consequential benefits. Parties to bear their own costs. Petition allowed.