ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 1.10.1975 (Annex.-2) passed by the respondents imposing punishment of dismissal from service and order dated 16.05.2001 (Annex.-6) passed by the respondents whereby the representation made by the petitioner has been rejected. 2. The petitioner entered in service of the respondents in the year 1946 on the post of Ameen. During the course of his employment, a charge-sheet dated 17.03.1972 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ('the Rules, 1958') was served on the petitioner. 3. Whereafter by order dated 28.08.1975, as the petitioner had completed 25 years qualifying service, he was granted compulsory retirement under Sub-Rule 2 of Rule 244 of the Rajasthan Service Rules, 1951 ('the RSR'). After the order of compulsory retirement (Annex.-1) was passed, on 1.10.1975, another order was passed, whereby the appointing authority based on the inquiry report pursuant to the charge-sheet dated 17.03.1972, held the petitioner along with one Chandal Mal Soni (Inspector) guilty of the charges and imposed punishment of dismissal from the service. 4. Whereafter on 04.03.1976, the Deputy Registrar (Personnel) of the Board of Revenue, sent a communication to the Secretary, Revenue Department indicating that though the order for dismissal of the petitioner was passed on the note-sheet on 29.07.1975, in absence of the typist, the order was issued on 1.10.1975 and before that the petitioner had been compulsorily retired and therefore, the said order of dismissal remained ineffective and therefore proceedings under Rule 170 of the RSR be initiated. 5. Whereafter on 07.06.1978 (Annex.-4) another order was issued by the Commissioner, Land Settlement indicating that the Deputy Secretary, Department of Personnel and Administrative Reforms has taken decision to take the petitioner back in duty and order for taking the petitioner back in duty be passed and that by order dated 1.10.1975 as the petitioner has been dismissed from service, he would be entitled to the salary for the period 29.08.1975 to 30.09.1975. Feeling aggrieved, the petitioner filed S.B. Civil Writ Petition No. 655/1990. 6. Feeling aggrieved, the petitioner filed S.B. Civil Writ Petition No. 655/1990. 6. The said writ petition, came up for hearing before the Court and by order dated 10.07.2000, the petitioner was directed to make fresh detailed and exhaustive representation before the Settlement Commissioner to decide his case regarding pensionary benefits and the respondents therein were directed to decide the same preferably within a period of six months and it was left open for the petitioner to question the validity of the order, if the same was adverse to the petitioner. 7. The petitioner made a detailed representation (Annex.-5) questioning the validity of the orders passed by the respondents and denial of pensionary benefits to the petitioner. The said representation made by the petitioner was rejected by impugned order dated 16.05.2001, inter alia, observing that the order of compulsory retirement has already been nullified and as the petitioner had made a request to take him back on duty, he was estopped from questioning the validity of the said order and as the order of dismissal became effective from 1.10.1975, the petitioner was entitled to grant of any pension. 8. Feeling aggrieved the present writ petition was filed by the petitioner-Shafi Mohammed. 9. During the pendency of the writ petition, the petitioner expired on 25.01.2015 and his Legal Representatives including his wife were brought on record. 10. It is submitted by learned counsel for the petitioner that the orders passed by the respondents dated 1.10.1975 (Annex.-2), 7.06.1978 (Annex.-4) and dated 16.05.2001 (Annex.-6) are bad in law and therefore, the same deserve to be quashed and set aside. 11. It was submitted that the petitioner was compulsorily retired under provisions of Rule 244(2) of the RSR and once, the compulsory retirement came into effect immediately on passing of the order, the respondents could have inflicted penalty of dismissal vide order dated 1.10.1975 inasmuch as, the petitioner was no more in service. Further submissions were made that passing of order dated 7.06.1978 recalling the order of compulsory retirement is equally bad, inasmuch as, there was no occasion for the State to take the decision to recall the said order of compulsory retirement on its own, after passage of over three years from the date the earlier order was passed. 12. Further submissions were made that passing of order dated 7.06.1978 recalling the order of compulsory retirement is equally bad, inasmuch as, there was no occasion for the State to take the decision to recall the said order of compulsory retirement on its own, after passage of over three years from the date the earlier order was passed. 12. Further submissions were made that even under the said order, it was required of respondents to pass an order taking back the petitioner on duty, however no such order was ever passed and the further stipulation in the order that as the order of compulsory retirement has been recalled, the order of dismissal would come into effect, in absence of any action on the part of the respondents pursuant to the said order, by itself cannot be assumed by the respondents for denying the grant of retrial benefits to the petitioner. 13. Further submissions were made that after the decision by this Court when the detailed representation was made, the respondents have wrongly come to the conclusion that the order of compulsory retirement, by order of the State would stand nullified and as the petitioner had required his reinstatement pursuant to order dated 24.05.1978, he was estopped from claiming any retiral benefits and therefore all the impugned orders deserve to be quashed and set aside. 14. Reliance has been placed on judgment in Ganga Ram v. State of Raj: ILR 1961 (Raj) 371. 15. Learned counsel appearing for the respondents supported the orders impugned, it was submitted that the petitioner was well aware of the pending inquiry and even when the order of compulsory retirement was passed on 28.07.1975, the order of dismissal had already been drawn in the note-sheet of the disciplinary authority and only for absence of a typist, the order could be drawn and communicated to the petitioner, which was eventually issued on 1.10.1975 and served on the petitioner. As the order of dismissal was already drawn in the note sheet, the order of compulsory retirement could have been passed after the order of dismissal and therefore the respondents were justified in passing the order dated 7.06.1978 to recall the order of compulsory retirement resulting in the petitioner remaining dismissed from service w.e.f. 1.10.1975 and in view of the provisions of Rule 208 of the RSR, his past service stood forfeited, therefore, the petitioner is entitled to grant of any benefits. 16. Further submissions were made that the petitioner himself had moved applications dated 29.09.1978 and 5.10.1978 pursuant to the order dated 24.05.1978 for taking him back on duty and therefore the petitioner was estopped from questioning the validity of order dated 24.05.1978 and therefore the orders impugned does call for any interference. 17. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 18. It is in dispute that the charge-sheet was issued to the petitioner on 17.03.1972 under Rule 16 of the Rules of 1958. During the pendency of the said inquiry, the order dated 28.08.1975 (Annex.-1) was passed by the respondents as under:- "Whereas Shri Shafi Mohammed has completed 25 years of qualifying service Now, therefore, in pursuance of the delegation made under sub-rule (2) of 244 of the Rajasthan Service Rules, vide F.D.'s order No. F 1(34)FDA/Rules/62 dated 13.12.63 the undersigned hereby requires Shri Shafi Mohammed by payment to him three months pay and allowance in liu of three months previous notice, to retire from the service on the date of receipt of this order by him. He can collect the above amount on any working day from this office." 19. The order was received by the petitioner on 29.08.1975 and as such the order of compulsory retirement came into effect immediately. 20. Whereafter on 1.10.1975, the order was passed by the disciplinary authority, inter alia, noticing that pursuant to the charge-sheet dated 17.03.1972 inquiry report was submitted by the Inquiry Officer and after notice was issued to the petitioner and one Chand Mal Soni, representation has been made, which was found satisfactory and therefore punishment of dismissal was imposed on the petitioner. 21. From the order dated 1.10.1975, it is apparent that the said order was passed after the petitioner had already been compulsorily retired by order dated 28.08.1975. 21. From the order dated 1.10.1975, it is apparent that the said order was passed after the petitioner had already been compulsorily retired by order dated 28.08.1975. The passing of order of dismissal based on the pending charge-sheet after the employee has been compulsory retired, is envisaged by the provisions of RSR, inasmuch as, the petitioner has been compulsory retirement forthwith and while taking a decision pertaining to the grant of compulsory retirement, the previous service record of the employee is taken into consideration, based on which decision in this regard is taken. An employee can only be dismissed if on the date when the order is passed, the employee is in employment and otherwise. 22. So far as the plea raised by the respondents that the order, in fact had been passed on the note sheet on 29.07.1975 i.e. before the order of compulsory retirement was passed and that in absence of a typist, the same was issued on 1.10.1975 and therefore it would be deemed that the petitioner had been dismissed from service even before the order of compulsory retirement was passed is baseless. 23. It is well settled that till such time, the order of dismissal is served on the employee, the order does take effect and once the order has been admittedly issued on 1.10.1975, the fact that same was contained in the order sheet prior to passing of order of compulsory retirement is of no consequence. Hon'ble Supreme Court in the case of State of Punjab v. Amar Singh Harika: AIR 1966 SC 1313 laid down that the order of dismissal, has to be communicated to the employee to come into effect. It was inter alia laid down as under:- "It is plain that the mere passing of an order of dismissal would be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter." 24. In view thereof, the plea raised in this regard, cannot be accepted. 25. It would also be noticed that the respondents in their wisdom chose to invoke the provisions of Rule 170 of RSR and instead adopted the route of recalling the order of compulsory retirement by passing the order dated 07.06.1978 (Annex.-4). 26. So far as passing of the order dated 7.06.1978 (Annex.-4) is concerned, the said order is only a self serving document so far as the respondents are concerned. 26. So far as passing of the order dated 7.06.1978 (Annex.-4) is concerned, the said order is only a self serving document so far as the respondents are concerned. The order reads as under:- ^^Hkw&izcU/k vf/kdkjh] mn;iqj mi;qZDr fo"k; esa ys[k gS fd mi&lfpo] dkfeZd ,oa iz'kklfud lq/kkj foHkkx Lis'ky lsy&ch ds i= la[;k&,Q&1¼507½ Mhvksih@Lis'ky@lsy@ch@77 fnukad 24-05-1978 izfr layXu ds vuqlkj jkT; ljdkj ls Jh 'kQh eksgEen vfuok;Z lsok fuo`r Hkw&ekid dks iqu% jkT; lsok esa vfuok;Z lsok fuo`fr dh fnukad ls gh ysus dk fu.kZ; fy;k gSA pwafd mijksDr deZpkjh vkids dk;kZy; }kjk gh jkT; lsok ls fuo`r fd;k x;k FkkA blfy;s vki gh iqu% jkT; lsok esa ysus ds vkns'k izlkfjr djsaA Jh lQh eksgEen] Hkw&ekid fnukad 28-08-1975 dks vkids }kjk vfuok;Z lsok fuo`r fd;k x;k Fkk mi&fucU/kd dkfeZd jktLo e.M+y jktLFkku vtesj ds vkns'k la[;k 4&11@124@foHkkxh; tkap@jkŒeŒvŒ@fnukad 01-10-1975 ds }kjk jkT; lsok ls fMlfel fd;k x;k gSA bl izdkj Jh lQh eksgEen dks fnukad 29-08-1975 ls 30-09-1975 rd dsoy osru dk gh ykHk feysxkA vr% bl lEcU/k esa vki fu;ekuqlkj vfxze dk;Zokgh djsaA rFkk ;g Hkh rqjUr gh lwfpr djsa fd D;k mDr Hkw&ekid vfuok;Z lsok fuo`r ds le; fuyfEcr Fkk vFkok fdlh izdkj dh foHkkxh; tkap tSjdkj FkhA tks fd vfuok;Z lsok fuo`fr nsus ds QyLo:i cUn dj nh xbZ Fkh] ml lwjr esa jkT; ljdkj ds layXu vkns'k ds vuqlkj dk;Zokgh dh tkosaA mijksDr deZpkjh foRr foHkkx ds eheksa ls vk0&1¼41½ ,QŒMhŒ@xzqi&2@76@9 fnuakd 23-09-1976 ds vUrxZr ns; ykHk dks ikus ds gdnkj gksxsaA Hkw&izcU/k vk;qDr jktLFkku] t;iqjA** 27. It would be noticed that a decision was taken to revoke the order of compulsory retirement and take the petitioner back in service and it was required of the Settlement Officer to pass order in this regard and thereafter it was noticed that as the petitioner had been dismissed on 1.10.1975, he would only be entitled to salary for the period of 29.08.1975 to 30.09.1975. 28. The said order, was passed apparently by respondents after realizing their mistake in passing the order of compulsory retirement and thereafter dismissing the petitioner, when the petitioner sought grant of retiral benefits. Even the said order dated 7.06.1978 was also followed by action as envisaged under it as apparently, no order was passed by the respondents taking the petitioner back in service. 29. Even the said order dated 7.06.1978 was also followed by action as envisaged under it as apparently, no order was passed by the respondents taking the petitioner back in service. 29. Whereafter, the petitioner approached this Court and he was required to file detailed representation, which was filed by the petitioner indicating the facts and law applicable, however, the respondents by order impugned dated 16.05.2001, came to the conclusion that by passing of order in the year 1978, the order of compulsory retirement dated 28.08.1975 has been rendered ineffective and the petitioner on account of his letters dated 29.09.1978 and 5.10.1978 was estopped from questioning the validity of the order. The said determination by the respondents also is on its face incorrect, inasmuch as, merely because the petitioner had by his communications dated 29.09.1978 and 5.10.1978 sought reinstatement, the same cannot create an estoppel against the petitioner as writing letters cannot operate estoppel against the law. Further, the respondents have accepted the request made by the petitioner, the situation would have been different if the request made by the petitioner was accepted by the respondents, therefore, the respondents cannot claim any estoppel against the petitioner in this regard. 30. A submission was made by learned counsel for the respondents that petitioner has challenged the validity of order dated 1.10.1975 terminating his services. The said submissions has been noticed merely for rejecting, inasmuch as, when the petitioner had claimed pensionary/retirement benefits pursuant to the order of compulsory retirement, the necessary plea of the petitioner was that the subsequent order passed by the respondents were illegal and therefore there was no requirement for the petitioner to specifically seek setting aside of the said order. 31. In view of the above discussion, it is apparent that the respondents had passed the order of dismissal after the petitioner had already been compulsorily retired which action of the respondents being ex-facie illegal is liable to be set aside and the further action of the respondents in seeking to justify the said dismissal by recalling the order of compulsory retirement also cannot be sustained. 32. Consequently, the writ petition filed by the petitioner is allowed, the order dated 1.10.1975 (Annex.-2), dated 7.06.1978 (Annex.-4) and dated 16.05.2001 (Annex.-6) are quashed and set aside. 32. Consequently, the writ petition filed by the petitioner is allowed, the order dated 1.10.1975 (Annex.-2), dated 7.06.1978 (Annex.-4) and dated 16.05.2001 (Annex.-6) are quashed and set aside. The petitioner/legal representatives of the petitioner would be entitled to all consequential benefits flowing from the order of compulsory retirement dated 28.08.1975, in accordance with law. 33. Needful be done by the respondents within a period of three months. On failure to comply with the direction within a period of three months, the petitioners would be entitled to interest @ 6% per annum from the date of this order on the amount due to them.