JUDGMENT : J.B. Pardiwala, J. 1. By this writ-application under Article 226 of the Constitution of India, the petitioner a former Assistant Geologist has prayed for the following reliefs:-- 8(A) declare and hold that the petitioner has retired from the service of the Government of Gujarat w.e.f. 29/02/2008, and (B) further be pleased to direct the respondent authorities to make payment of retirement dues to the petitioner as per rules, with interest at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and (C) award the cost of the petition, and (D) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to make payment of provident fund, provisional pension, provisional gratuity and leave encashment to the petitioner, and (E) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from asking the petitioner to resume his duties and/or (F) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case. 2. The facts of the present case may be summarized as under:- 2.1. The petitioner joined the service of the Government of Gujarat on 09/10/1979 in the Geology and Mining Department. On completion of more than 25 years of service, he preferred an application dated 03/11/2007 addressed to the competent authority for voluntary retirement w.e.f. 29/02/2008. 2.2. The petitioner did not hear anything as regards his application for voluntary retirement and therefore, it was presumed that the same had been accepted and the petitioner stood voluntary retired w.e.f. 29/02/2008. Since the Government did not sanction the retiral dues, he had to prefer a representation in that regard. The State Government informed the petitioner in writing on 03/05/2008 that the department had not received any application for voluntary retirement and therefore, there was no question of considering the same. He was further informed that, in view of the fact that no such application was received, there was no question of sanctioning any provisional pension. The petitioner thereafter sought necessary information in this regard under the Right to Information Act. He was further informed that, in view of the fact that no such application was received, there was no question of sanctioning any provisional pension. The petitioner thereafter sought necessary information in this regard under the Right to Information Act. By communication dated 22/07/2008, the petitioner was informed that his application dated 03/11/2007 for voluntary retirement was received on 06/11/2007 by his superior with the Inward No. 1930 and the superior thereafter forwarded the same to the office of the Commissioner, Geology and Mining Department, on 16/11/2007. 2.3. As the petitioner has not been paid any retiral dues, he had to come before this Court by way of this writ-application. 3. Ms. Pandya, the learned counsel appearing for the petitioner submitted that her client had preferred an application for voluntary retirement in terms of the provisions of the Rule 49 of the Gujarat Civil Services (Pension) Rules 2002. Ms. Pandya laid much emphasis on the proviso to Rule 49(2) which provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. According to Ms. Pandya, her client could be said to have retired from service on expiry of the period stated in the application by virtue of the deeming fiction. 4. Ms. Pandya submitted that all throughout the State Authority proceeded on the footing as if no application was filed by the petitioner, but now from the reply of the State itself it is made clear that the application was received however the same was not processed for the one reason or the other. 5. This writ-application has been vehemently opposed by Mr. Goutam, the learned AGP appearing for the State-respondents. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner could be said to have voluntarily retired from the service. 7. The additional affidavit-in-reply filed for and on behalf of the respondent No. 2 duly affirmed by the In-charge Deputy Director (Administration), Office of the Commissioner of Geology and Mining speaks for itself. Let me quote the averments made in the said additional affidavit-in-reply. "2. 7. The additional affidavit-in-reply filed for and on behalf of the respondent No. 2 duly affirmed by the In-charge Deputy Director (Administration), Office of the Commissioner of Geology and Mining speaks for itself. Let me quote the averments made in the said additional affidavit-in-reply. "2. It is submitted that the present petitioner had joined the service with effect from 09-10-1979 as a Geological Assistant (Class-III) under Geology and Mining Department. Thereafter, the present petitioner was promoted to the post of Assistant Geologist, Class-II with effect from 05-08-1997. It may not be out of context to mention that the service tenure of the present petitioner has been full of controversy and various inquiries were initiated against him due to the complaints regarding irregularities and corrupt practices received by the department. 3. It is submitted that on 18-07-2006, the present petitioner had submitted an application to retire voluntarily from service with effect from 30-11-2006. However, the said application was rejected by the State Government vide communication dated 30-11-2006. Annexed hereto and marked as Annexure-R-I is the copy of the communication dated 30-11-2006. 4. Thereafter, despite the rejection of the earlier application, he addressed a communication dated 05-11-2006 asking for retiring him from service voluntarily with effect from 31-12-2006. Thereafter again vide letter dated 30-04-2007 the request was reiterated by the petitioner to permit him to retire voluntarily from service with effect from 31-5-2007. It is pertinent to note that both the aforesaid letters dated 5-12-2006 and 30-04-2007 were not in accordance with Rule 49(4)(a) of the Gujarat Civil Service (Pension) Rules, 2002. Thereafter, again on 04-07-2007 he submitted an application for voluntary retirement with effect from 31-10-2007. The said request was rejected by the State Government vide communication dated 30-10-2007. Annexed hereto and marked as Annexure R-II is the copy of the communication dated 30-10-2007. 5. It is submitted that in view of the repeated applications of the petitioner for voluntary retirement, the answering respondent had called for "no dues" and "no event" certificates from all the departments wherever the present petitioner had rendered the services. Annexed hereto and marked as Annexure R-III is the copy of the letter dated 13-09-2006 written by the answering respondent to all the concerned branches. Annexed hereto and marked as Annexure R-III is the copy of the letter dated 13-09-2006 written by the answering respondent to all the concerned branches. In response to the aforesaid letter vide communication dated 03-11-2006, the Office of Senior Geologist, Mineral Exploration Circle, Rajkot informed the answering respondent that the field exploration reports submitted by the present petitioner, were returned to him for verification and for compliance of queries and the same were not received back from the present petitioner. Annexed hereto and marked as Annexure-R-IV is a copy of the communication dated 03-11-2006. Similarly the money receipt book bearing receipt No. 242932 to 243000 which was issued to the present petitioner from the office of the Additional Director (Flying Squad, Gandhinagar) the Folios which were not used by the present petitioner were not deposited by the present petitioner and it was only on 07-11-2008 that the present petitioner returned the aforesaid unused folios wide communication dated 07-11-2008. Annexed hereto and marked as Annexure R-V is the copy of the letter dated 07-11-2008 addressed by the present petitioner to the Additional Director, Flying Squad, Gandhinagar. The petitioner was desirous of retiring from services voluntarily w.e.f. 29-02-2008, it was incumbent upon him to hand over all the aforesaid important documents to the concerned authorities well in advance from the date of his proposed retirement and having failed to do so, the petitioner cannot be given the benefit of the voluntary retirement. It is submitted that on 03-11-2007 the present petitioner submitted an application for voluntary retirement for the 3rd time to retire from service w.e.f. 29-02-2008. The said application was addressed to the Additional Chief Secretary (Industries & Mines Department) Government of Gujarat. The said application was received in the office of Senior Geologist, Mineral Exploration Circle, Ahmedabad on 06-11-2007 vide inward No. 1930. The said application was forwarded by the office of the Senior Geologist, Mineral Exploration Circle, Ahmedabad to the Office of the Commissioner of Geology & Mining Department, Gandhinagar vide its letter dated 16-11-2007 and the same was inward in the Central Registry Branch of the Commissioner of Geology & Mining on 21-11-2007 vide inward No. 11851. It is pertinent to note that as per the procedure required, after a communication is received in the Central Registry, the same is send to the concerned branch. It is pertinent to note that as per the procedure required, after a communication is received in the Central Registry, the same is send to the concerned branch. The present letter was sent to the administrative branch and the same was received in the administrative branch on 14-12-2007 which was received by the then Senior Clerk Shri A.U.K. Nair and the said Shir Nair had also put his signature in the peon book for having received the said letter. However, the said letter for the reasons unknown, was never brought to the notice of the concerned officer of the concerned branch for necessary action and never the entry as regards the said letter was ever made in the worksheet by the concerned Senior Clerk. The role played by the then Senior Clerk Mr. Nair is also suspicious and therefore a show cause notice dated 20-12-2008 has been issued to the said Shri Nair asking for his explanation as regards the entire episode. It is pertinent to note that said Shri Nair has retired from his service with effect from 31-03-2008. 6. It is submitted that it is the case of the present petitioner that he had submitted an application for voluntary retirement w.e.f. 29-02-2008. However, it is pertinent to note that vide application dated 14-02-2008 the present petitioner had applied for the benefit of earned leave for the period from 18-02-2008 to 05-03-2008 prefix and suffix the holidays. Annexed hereto and marked as Annexure R-VI is the copy of the application dated 14-02-2008 submitted by the present petitioner for the purpose of leave. Thus, the conduct of the present petitioner conclusively shows the he was not desirous of retiring from service voluntarily w.e.f. 29-02-2008 and therefore there is no question of granting such permission in case of the present petitioner. 7. It is submitted that from the perusal of all the applications submitted by the present petitioner for voluntarily retirement it would become clear that none of such application was ever communicated to the Appointing Authority i.e. State Government and therefore, the Appointing Authority has rightly informed the present petitioner vide communication dated 03-05-2008 that it is not in receipt of any of the application of the petitioner. 8. 8. It is submitted that if the present petitioner was desirous of retiring from service w.e.f. 29-02-2008, it was incumbent upon him to have remained present in the office on the last day i.e. 29-02-2008, but the present petitioner had proceeded on leave w.e.f. 18-02-2008, though the leave was not sanctioned. Therefore the conduct of the present petitioner was of unauthorized absence from service and therefore on 29-04-2008, a notice was issued to the present petitioner asking for explanation as to why necessary action should not be taken against him for remaining absent from service unauthorizedly. Annexed hereto and marked as Annexure R-VII is the copy of the notice dated 29-04-2008. The said notice is not replied by the present petitioner in any manner whatsoever." 8. The plain reading of the affidavit would suggest that the entire blame is sought to be thrown on one Mr. A.U.K. Nair. It is not in dispute that no departmental action was taken against Shri Nair till he retired from the service on 31/03/2008. 9. Let me now look into the Rule 49 as it is:- Rule 49 Voluntary retirement on completion of twenty five years' qualifying service: (1) A Government employee at any time after completion of twenty-five years' qualifying service, may, by giving notice of not less than three months in writing to the appointing authority, retire from service; (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) The qualifying service as on the date of intended retirement of the Government employee retiring under this rule shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by the Government employee does not in any case exceed thirty three years: Provided that the total qualifying service after allowing the increase under this sub-rule shall not exceed the qualifying service which the Government employee would have had, if he had retired on reaching the age of superannuation as prescribed under sub-rule (1) of rule 10. (4) (a) A Government employee referred to in sub-rule (1) may make request in writing to the appointing authority to accept notice of voluntary retirement of less than three months by giving reason therefore; (b) On receipt of a request under clause (a), the Head of Department in case of Class-Iv employee and the head of Administrative Department concerned in case of other employees, subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that there is no departmental inquiry pending or contemplated against the Government employee, may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three moths. (5) A Government employee, who has elected to retire under this rule and has given the notice to that effect as required under these rules to the appointing authority, shall not be allowed to withdraw such notice except with approval of the appointing authority:-Provided that the request for withdrawal of notice shall be made before the intended date of his retirement. (6) The pension and death-cum-retirement gratuity of the Government employee retiring under this rule shall be based on the pay as defined under rule-9(53) read with rule 43 and the increase not exceeding five years in his qualifying service under sub-rule (3) shall entitle him for the notional pay during these notional years of qualifying service in the pay scale in existence on the actual date of retirement for the purposes of calculating pension and death-cum-retirement gratuity. Provided that in case of the Government employee retiring from a post occupied by him as a result of leave vacancy, deputation vacancy, fortuitous promotion etc., or from a temporary post sanctioned for a limited period, the appointing authority shall require to issue a certificate in Form No. 3. (7) This rule shall not apply to a Government Employee who retires from Government service under rule 51 for being absorbed permanently in a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. (7) This rule shall not apply to a Government Employee who retires from Government service under rule 51 for being absorbed permanently in a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. Explanation-1: For the purpose of this rule the expression "appointing authority" shall mean the authority which is competent to make substantive appoint to the service or post from which the Government employee seeks voluntary retirement. Explanation-2: Qualifying service of twenty five years referred in sub-rule (1) means qualifying service excluding the notional service added under sub-rule (3) and also extra ordinary leave sanctioned in the entire service of an employee. 10. I also take notice of the fact that if it is the stance of the State Government that the petitioner could not be said to have voluntarily retired from the service then it could have taken appropriate steps against him for remaining unauthorizedly absent. However, till this date nothing has been done by the State Government. In such circumstances, I have reason to believe that the petitioner could be said to have taken voluntary retired way back in the year 2008 (w.e.f. 28/02/2008). He has not been paid his retiral dues past eight years on the pretext, which is otherwise found to be false. In fact, a very serious view could have been taken because the first affidavit filed on behalf of the respondent No. 2 is directly in conflict with the additional affidavit which has been referred to above. 11. In such circumstances referred to above, this writ-application succeeds and is hereby allowed. The petitioner is deemed to have voluntary retired from service w.e.f. 29/02/2008 in accordance with the Rule-49 of the Rules referred to above pursuant to his application. The authorities concerned are directed to now pass appropriate orders as regards his retiral dues in accordance with the Rules and Regulations and see to it that all legitimate dues are paid to him within a period of three months with arrears. Rule is made absolute. Direct service is permitted. I expect the authorities to ensure that there is no second round of litigation. The petitioner retired eight years back and should not be unnecessarily dragged once again to the Court of law.