Judgment 1. Petitioners have sought for quashing of communication dated 22.02.2012 addressed to the counsel for the petitioners, informing that the Voluntary Retirement under Special Scheme of the deceased husband of first petitioner is not accepted, as such, the petitioner are not entitled for terminal benefits under the Special Voluntary Scheme. Petitioner have also challenged Clause 7.7 of the Special Voluntary Retirement Scheme, Produced at Annexure-A. 2. It is not dispute that, the husband of the first petitioner was appointed as a clerk and thereafter he was promoted and ultimately he was a Senior Manger. While he was working as a Senior Manger, several Banks Introduced special voluntary scheme. Accordingly, even respondent-Bank also issued a Special Voluntary Scheme by issuing a communication dated 11.12.2000. The said scheme was valid only for a period of one month i.e., upto 31.01.2001. The employees, who had put in 15 years of actual service or who were 40 years, were eligible to seek for Special Voluntary Retirement. Accordingly, husband of the first petitioner also made an application on 15.01.2001. He had put in about more than 37 years of service in the Bank and was also 40 years. He had qualified as per the eligibility, however, in terms of Clause 7.7, the power was conferred on the Competent Authority to accept or reject the request of the voluntary retirement. The husband of the first petitioner did not receive any communication in terms of clause 7.7 and while he was on duty, he died on 27.02.2001 and the respondent-Bank made payment to the legal heirs of the deceased employee in terms of the Regulations applicable to the employee, who dies while he was in service. 3. These petitioners made a claim alleging that they are entitled for the benefit under the special voluntary scheme for which the first petitioner’s husband had made an application. The said request was turned down by the Bank in terms of the impugned communication dated 22.02.2012 produced at Annexure-E, as Against which, these writ petitioners are filed. 4. Sri. Padmaraj, learned counsel for the petitioners submitted that in terms of Annexure-A, the eligibility criteria was either the employee must have put in 15 years of actual service or 40 years of age at the time of making application and the said application to be made within 60 days. 4. Sri. Padmaraj, learned counsel for the petitioners submitted that in terms of Annexure-A, the eligibility criteria was either the employee must have put in 15 years of actual service or 40 years of age at the time of making application and the said application to be made within 60 days. The deceased husband of the first petitioner had put in 15 years of service and he was also more than 40 years, there was no other disqualification under the Scheme. Though clause 7.7 confers power on the competent Authority either to accept or reject and till such acceptance is communicated to the employee concerned, no deemed acceptance of the voluntary retirement is provided. However, learned counsel submitted that, same is contrary to the constitutional feature, as it gives unriddle arbitrary discretion in the hands of the Authority to reject any application. Even otherwise, when an application is filed for voluntary retirement and the employee dies, thereafter the application could not have been rejected. Even any rejection requires communication to the person concerned, however, the communication issued at Annexure-R1 produced along with the objections is not the address of the petitioners, but it is addressed to the Bank. In the application for voluntary retirement, the deceased husband of the first petitioner had given the address and it is not sent to the said address, as such there is no communication and claimed that the Bank should have treated the case of the deceased husband of the first as voluntary retirement rather than death while in employment. 5. He relied on the judgment of this court reported in ILR 2002 KAR 4585 in the matter of R.Jyothi -vs-The General Manager, Dena Bank and Others and submitted that this court in identical circumstances, has held that, if a person dies while he was in service after opting for voluntary retirement, death will not come in the way of acceptance and accordingly, in such case directed to treat it as voluntary retirement and termination of service due to death. 6. 6. On the other hand, learned counsel for the respondent Bank submitted that, the scheme was special scheme existed only for short period of one month and even if the application is made, discretion was with the Management, since thousands of applications were received, scrutiny took quite some time and clause 7.7 makes it clear that till it is accepted, it cannot be treated as voluntary retirement and after the death of the husband of the first petitioner, petitioners have received the benefits in pursuance of the Regulations in case of death of an employee while he was in service, as such the petitioners are not entitled for the benefit under the Special Voluntary Retirement Scheme. He also submitted that the judgment of this court was taken in appeal to the Supreme Court and the Apex Court has clarified that the judgment of this court is only in particular case and it cannot be treated as law declared and submitted that, under the Regulations, petitioners are not entitled, as such, benefit cannot be extended. 7. He also submitted that, since the deceased husband of the first petitioner had died, his case was not considered for voluntary retirement. 8. It is not in dispute that, the deceased husband of the first petitioner had made an application for voluntary retirement under the special scheme. It is also not disputed by the learned counsel for the respondent-Bank that, he had not suffered any ineligibility. He was 40 years and he had also completed 15 years of actual service. Further, it is also not the case of the Bank that, there was any enquiry or proceedings pending against the husband of the first petitioner. In terms of Annexure-A, deceased husband of the first petitioner was eligible to be considered for special voluntary retirement. Even according to the Bank, the reason for rejection of his application is not that he was ineligible, since he had died and his legal heirs had accepted the benefits on account of death, his application was rejected. Admittedly, the application of the deceased husband of the first petitioner was rejected on 28.03.2001 i.e., much after the death of the employee. 9. Admittedly, the application of the deceased husband of the first petitioner was rejected on 28.03.2001 i.e., much after the death of the employee. 9. If the application was rejected on the ground that, he is either ineligible or Bank had not found it feasible to accept, it could have used its discretion, but application is not rejected either on the ground of ineligibility or on the ground of feasibility, but it is rejected only because the husband of the first petitioner died. 10. Death should not come in the way of considering the voluntary retirement because the voluntary retirement was to be considered as on the date when the deceased employee had made an application. May be because he died, but there was no impediment to consider the application, hence, his application should not have been rejected on the ground of death. Though the Apex court has observed that, the decision of this court is between the parties, this court in said case while considering the similar circumstances has observed as under: “No doubt, the language employes in clause 10.8 of the scheme referred to above provided for payment of compensation payable to the employee of the Bank to the person nominated to receive such amount in the event of death of such of an employee. If his request for voluntary retirement under the scheme has been accepted by the Bank. From the provision referred to above, it is not possible to infer that the Bank is prevented from considering the application of an employee, who after making an application for voluntary retirement and before it is considered expires, his request for retirement under the scheme cannot be considered. No doubt, retirement presuppose the existence of a person who can retired from service. But, if the object of the scheme is kept in mind, as noticed by me earlier, the benefit of the scheme has to be extended to such of those employees who made a request for voluntary retirement under the scheme not withstanding the fact that such an employee expires before his request for retirement under the scheme is taken up for consideration. The employee who makes an application fore retirement under the scheme has no control with regard to the date on which his request would be considered by the Bank. The employee who makes an application fore retirement under the scheme has no control with regard to the date on which his request would be considered by the Bank. But, the fact remains that by making an application for voluntary retirement under the scheme, he gives his option for retirement under the scheme. Further, it is also relevant to pointed out that there is no provision in the scheme which prohibits the Bank from considering the applications of an employee who expires before his application was considered by the Bank. Under these circumstances, if the application filed by the employee of the Bank seeking voluntary retirement cannot be rejected on merits, on consideration of such application by the Bank, in my view as notice by me earlier, the death of an employee should not make any difference so far as consideration of the application filed seeking voluntary retirement by such employee. The legal heirs of such an employee should be held to be entitled for all the benefit that the deceased employee would be entitled in law, if his application were to be considered on merits. In my view, the words “ under the scheme has been accepted’ employed in clause 10.8 of the scheme referred to earlier, has to be understood as one which accepted and acceptable in cases where an employee who has made an application seeking voluntary retirement expires before his application comes up for consideration. Further, I am also unable to accept the submission of the learned counsel appearing for the respondent-Bank that since the claim of several other employees who have expire prior to consideration of their application having been rejected by the Bank the petitioner alone cannot be given benefit of the scheme. In such a situation the Bank being an instrumentality of the state which has an obligation to act fairly and reasonable in all its decision, obliges it to reconsider its earlier decision and extend the benefit of the scheme to the legal heirs/ nominees of such of those employees also’. 11. Having regard to the above circumstances, in my opinion, merely because the applicant could not have been rejected, as the applicant as on the date of application was eligible to opt for voluntary retirement. 11. Having regard to the above circumstances, in my opinion, merely because the applicant could not have been rejected, as the applicant as on the date of application was eligible to opt for voluntary retirement. Hence, the deceased husband of the first petitioner had not suffered any disqualification, and his application was rejected only on the ground of death, hence, the petitioners are entitled for the benefit under the special Voluntary Retirement Scheme. Accordingly, these petitions are allowed in part. Insofar as grant of relief of Voluntary Retirement is concerned, it is held that the petitioners are entitled for all the benefits under the Special Voluntary Retirement Scheme for Which the deceased husband of the first petitioner become entitled and accordingly, the Bank shall calculate the said benefit and after taking into consideration whatever amount has been paid to the petitioners after adjusting the same whatever remains to be paid, same may be paid as early as possible not later than three months from the date of receipt of copy of this order.