JUDGMENT : Mr. Sanjeev Prakash Sharma, J. 1. By way of filing instant petition, the petitioner has approached this Court being aggrieved by the action of the respondents in refusing to accept the application filed by him for withdrawing the application for voluntary retirement. 2. Facts of the case, in brief, are that the petitioner was holding the post of Skilled Weaver in the Rajasthan Rajya Bunkar Sahakari Sangh Limited, Jaipur which later on merged with Rajasthan Handloom Development Corporation Ltd.. He submitted an application for seeking voluntary retirement on 6.7.1999 which was considered and accepted on 7.7.1999 allowing him to retire w.e.f. 1.8.1999. Before the said date, the petitioner submitted an application for withdrawing his voluntary retirement application on 31.7.1999 but the said withdrawal application was not accepted by the respondents and he was relieved from the post on 4.9.1999 w.e.f. 1.8.1999 and the delay in relieving the petitioner was on account of asking him to deposit a sum of Rs. 15,000/- which he deposited on 2.8.1999. The petitioner has challenged the Order dated 7.7.1999 as well as the relieving Order dated 4.9.1999 and has asserted that once the petitioner had withdraw an his voluntary retirement, it was not justified for the respondents to have relieved him from his duties and treat him as having voluntary retired. It is submitted that the petitioner had an absolute right to withdraw his voluntary retirement application and once the said application has been moved and thereafter if the petitioner is relieved, the same would be a forcible termination of service. 3. Counsel for the petitioner has relied on the law laid down by the Apex Court in the case of Balram Gupta v. Union of India, (1987) Supp SCC 228 and J.N. Srivastava v. Union of India and Anr. (1998) 9 SCC 559 wherein it has been held as under:- “In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poem’tentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India, 1987 Supp SCC 228. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India, 1987 Supp SCC 228. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990.” 4. He has also relied upon the judgment rendered in the case of Union of India and Anr. v. Wing Commander T. Parthsarathy (2001) 1 SCC 158 wherein the Apex Court has held as under:- “6. We have carefully considered the submissions of the learned counsel appearing on either side. The reliance placed for the appellants on the decision reported in Raj Kumars case (Supra) is inappropriate to the facts of this case. In that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands terminated from the date on which the letter of resignation is accepted by the appropriate Authority and in the absence of any law or rule governing the condition of the service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate Authority and that till the resignation is accepted by the appropriate Authority in consonance with the rules governing the acceptance, the public servant concerned had Locus Penitentiae but not thereafter. This judgment was the subject matter of consideration alongside the other relevant case law on the subject by a Constitution Bench of this Court in the decision reported in Union of India Etc. v. Gopal Chandra Misra and Others ( AIR 1978 SC 694 ). A request for pre-mature retirement which required the acceptance of the competent or appropriate Authority will not be complete till accepted by such competent Authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for pre-mature retirement was made to take effect from a future date as in this case. The majority of the Constitution Bench analysed and declared the position of law to be as hereunder: 50. It is all the more so in a case where the request for pre-mature retirement was made to take effect from a future date as in this case. The majority of the Constitution Bench analysed and declared the position of law to be as hereunder: 50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217 (1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal. (Emphasis supplied) 7. This Court had again an occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period or from a future date as desired by the employee in Punjab National Bank v. P.K. Mittal ( AIR 1989 SC 1083 ). This Court had again an occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period or from a future date as desired by the employee in Punjab National Bank v. P.K. Mittal ( AIR 1989 SC 1083 ). It was held therein that resignation being a voluntary act of employee, he may choose to resign with immediate effect or with a notice of less than 3 months if the employer agrees to the same or he may also resign at a future date on the expiry or beyond the period of 3 months as envisaged under the governing regulation in that case, even though there is no such consent from the employer, and that, it was always open to the employee to withdraw the same before the date on which the resignation could have become effective.” 5. The counsel for the petitioner has also relied upon judgment rendered in the case of Shambu Murari Sinha v. Project and Development India Limited and Anr. (2002)3 SCC 437 wherein it has been held as under:- “18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the ‘release memo along with detailed particulars would follow’. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end. 19. We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service.” 6. It is further submitted that the Apex Court in its judgment rendered in the case of J.N. Srivastava v. Union of India and others, (1998) 9 SCC 559 it was held as under:- “The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of “no work, no pay”, this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31- 1-1990. The respondents are directed to make available all the requisite monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.” 7. Per contra, learned counsel for the respondent submits that the petitioner had been relieved on 4.9.1999 and had also been paid the entire retiral dues which he accepted without any protest and he cannot thereafter turn back and say that he was forcibly retired. As regards the application for withdrawal submitted by the petitioner on 31.7.1999 is concerned, the fact regarding submission of such an application is admitted. Further, it is submitted that the application for withdrawal is completely an afterthought because he has deposited the amount of Rs. 15,000/- also which was paid to him as the advance amount and this fact fairly demonstrates that he wanted to be retired voluntarily. 8. Learned counsel for the respondent also relied upon the law laid down by the Apex Court in the case of Bank of India v. K.V. Vivek Ayer (2006) 9 SCC 177 wherein while clarifying the law laid down by the Apex Court earlier in the case of Bank of India v. O.P. Swarnakar (supra), the Apex Court held that under the Voluntary Retirement Scheme floated by the banks if the concerned incumbent has already received the retiral benefits and utilized the same, such an individual would not be required to be taken back. 9. 9. Having considered the submissions of both the counsel, this Court finds that the petitioner withdrawal application was given on 31.7.1999 even before the appointed date i.e. 1.8.1999 and therefore, there was no occasion for the respondent to have relieved the petitioner on 4.9.1999 after withdrawal application has also been received. It is also noted that they had not rejected withdrawal application of the petitioner whereas the case cited by the learned counsel-respondent the Voluntary Retirement Scheme did not envisage withdrawal of VRS application and said withdrawal application were rejected by the Bank which culminated into litigation upto Supreme Court in Bank of India v. O.P. Swarnakar. 10. In the facts and circumstances of that case Supreme Court laid down that those persons bank employees, who had received the amount and had utilised the same could not turn back and their application for withdrawal of VRS had been rightly rejected. 11. So far as, the present case is concerned the law laid down in Shambhu Murarai Sinha (supra), Wing Commander T. Parthsarathy (supra) as well as J.N. Srivastava (supra) would apply to the facts. The petitioner is entitled to be directed to be reinstated in service and also receive entire benefits in the intervening period as has been held in J.N. Srivastava case (supra). The amount which has also been paid as retiral benefits of the respondents to the petitioner shall be required to be readjusted and the calculation thereof in the amount which the petitioner would be entitled during him in service shall be calculated at the level of the respondent themselves and after the adjudicating the amount paid also to the petitioner, arrears if any may be released to the petitioner. The writ petition is accordingly allowed. The petitioner would be entitled to all consequential actual benefits including continuity of service. The respondents are directed to comply with the order within period of two months from the date of serving certified copy from the order. In the circumstances, cost is made easy.