JUDGMENT : 1. Heard learned counsel for the parties through VC 2. The instant application was initially filed by the petitioner for a direction upon the respondents to immediately accept the voluntary retirement application of the petitioner and also for a further direction to the concerned respondents to immediately and forthwith make payment of all retiral benefits including pension as the petitioner has completed continuous service of more than 20 years. During the pendency of this application, vide order dated 18.01.2019, this Court directed the respondents to apprise the Court as to whether the decision on the application of the petitioner for voluntary retirement has been taken or not and in compliance to the court’s order an order dated 24.01.2019 rejecting the application of the petitioner for Voluntary Retirement has been passed which was brought on record by way of supplementary counter affidavit filed by the State. Pursuant to that an interlocutory application for amendment challenging the said order of rejection dated 24.01.2019 has been filed and the same was allowed vide order dated 22.02.2019. 3. The facts of the case lie in a narrow compass. The petitioner joined the service in the erstwhile State of Bihar vide notification No. 2199 dated 16.6.1987 on the post of Assistant Engineer in Bihar Engineering Service in Road Construction Department and after bifurcation of the State of Bihar the petitioner opted for the State of Jharkhand. The services of the petitioner was confirmed vide notification No. 4652 dated 03.07.2004 and the petitioner was given the benefit of first Assured Career Progression Scheme vide notification dated 16.5.2005 with effect from 09.08.1999 after completion of 12 years of continuous service. Further case of the petitioner is that while he was posted as Project Officer, MESO Project, Jamtara, he made an application in July, 2007 for getting voluntary retirement for some family reasons, but that application remained pending till the date of filing of the writ application. At this stage it is pertinent to mention here that though there was no acceptance of his VRS application but interestingly a seniority list was published by the Department in the year 2009 where the name of the petitioner has been omitted. At this stage it is pertinent to mention here that though there was no acceptance of his VRS application but interestingly a seniority list was published by the Department in the year 2009 where the name of the petitioner has been omitted. As aforesaid, pursuant to the order of this Court an order of rejection of the VRS application was passed in the month of January, 2019 as contained in letter No.562 (S) dated 24.01.2019 issued under the signature of Under Secretary to the Government, Road Construction Department indicating that in the light of Paragraph 1 of the Circular of the Finance Department No. 6190 dated 27.4.1979, the claim of the petitioner for voluntary retirement is rejected and it was further directed in the said letter that the petitioner should first join at the Headquarter fixed during the period of suspension. It is also pointed out in the said letter that the petitioner has not completed 20 years of service. The said letter has been annexed as Annexure D to the counter affidavit filed by the respondents. 4. The learned Senior Counsel, appearing for the petitioner submits that as per circular dated 27.4.1979 appended to Rule 74 of the Bihar Service Code (hereinafter to be referred as Code), a Government servant whose qualifying service is not less than 20 years can take retirement by giving three months prior notice to the competent authority. The learned Senior Counsel further submits that the scheme was completely voluntary in which the Government Servant has to initiate himself and the Government has no alternative but to retire the Government servant under the scheme. He further submits that the case of the petitioner is squarely covered under the scheme as he has completed 20 years of service on the date of making application for voluntary retirement. The learned Senior Counsel further contended since as per the aforesaid circular the competent authority neither accepted the request of the petitioner for voluntary retirement nor refused the request explicitly and as such, the request of the petitioner for voluntary retirement would be deemed to attain finality after expiry of the period of three months as specified in the circular. The learned Senior Counsel further contended since as per the aforesaid circular the competent authority neither accepted the request of the petitioner for voluntary retirement nor refused the request explicitly and as such, the request of the petitioner for voluntary retirement would be deemed to attain finality after expiry of the period of three months as specified in the circular. He further submits that taking into consideration Rule 74 (B) of the Code and Circular dated 27.4.1979 the petitioner is ought to be deemed retired and therefore, any departmental proceeding or any disciplinary action against the petitioner is not legal and the petitioner is fully entitled for his retirement benefit. Learned Senior counsel has relied upon the judgment passed in the case of Dhananjay Sharma Versus The State of Jharkhand & Ors. reported in 2011 (3) JLJR 108 , wherein at paragraph 25 and 26 this Court has held as under: “25. After the order dated 18.5.2002 rejecting the said voluntary retirement, thereafter the departmental enquiry proceeded against him on the basis that there was jural relationship between the employer-respondent and the employee-petitioner. It is a settled position of law that after the retirement of the employee, no disciplinary action except in terms of Bihar Pension Rules or any other law enforced can be taken by the respondents. All the consequential orders passed by the respondents in the departmental enquiry is hereby quashed however the respondent Department will have a liberty to proceed against him under the provision of the law treating him to be a retired employee of the respondent. The respondent will proceed expeditiously if further proceeding is to be taken against him. 26. The order dated18.5.2002 contained in memo No. 626 is hereby quashed and the order of punishment of terminating the petitioner from the services is also quashed with all consequential benefits which is contained in order dated 15.11.2003 (Annexure-A to the I.A. No. 2491 of 2003) of the writ petition. The respondents would be at liberty to proceed against the petitioner under the provisions of the law treating him to be retired employee of the respondents w.e.f. 30th March, 2002 in accordance with law. Thus, the writ petition is allowed. The respondents are directed if any enquiry is to be proceeded against him, be proceeded expeditiously. No order as to cost.” 6. Thus, the writ petition is allowed. The respondents are directed if any enquiry is to be proceeded against him, be proceeded expeditiously. No order as to cost.” 6. Per contra, learned counsel for the respondents reiterated its stand made in the counter affidavit and submitted that the petitioner has been suspended for his unauthorized absence from 10.01.2007 for being irresponsible in duties and indiscipline act in his pending period as Assistant Engineer, MESO project, Jamtara. He further submits that for the suspension period, office of the Superintending Engineer, Road Construction Department, Road Circle, Medininagar was determined as the head quarter of the petitioner but the Superintending Engineer, Road Construction Department, Road Circle, Daltonganj vide letter no. 923 dated 08.12.2015 informed that the petitioner has not submitted his joining in the circle office till now. He further submits that the application was submitted by the petitioner for voluntary retirement after unauthorized absence which also caused suspension of the petitioner. The decision on the application of petitioner for voluntary retirement is delayed due to the suspension of the petitioner and moreover petitioner has not submitted his joining after suspension to the prescribed authority. He concluded his argument by submitting that the petitioner is not entitled for VRS as he was suspended after unauthorized absence way back in February, 2008 itself vide notification dated 04.02.2008. At this stage it is pertinent to mention here that the said notification dated 04.2.2008 was never sent to the petitioner as from the notification itself it transpires that copy of the notification was given to the Accountant General, Bihar and concerned Treasury Officer only. 7. Having heard learned counsel for the parties and after going through the material available on record it appears that the only question for consideration arise as to what will be the true impact and purport and scope of Rule 74 of the Code and the Circular dated 27.4.1979 issued by the Government of Bihar as to whether the application for voluntary retirement made by an employee becomes effective on expiry of the period of notice served to the employer or any order of acceptance is a condition precedent for giving effect to the request of the employee. Before entering into this issue I would like to refer the relevant provisions of the Code which is quoted as under: "74. Before entering into this issue I would like to refer the relevant provisions of the Code which is quoted as under: "74. (a) The state Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Whether any Government servant is so required to retire not claim to any special compensation shall be entertained. (b) (i) Notwithstanding anything contained in the preceding sub rule a Government servant may, after giving at least three months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice: Provided that no Government servant under suspension shall retire from service except with the specific approval of the State Government:] [Provided further that in case of the officers and servants of the Patna High Court (including those of Circuit Bench at Ranchi) under the rule making authority of the Chief Justice, no such officer and servant under suspension shall retire from service except with the specific approval of the Chief Justice. [(ii) The appointing authority concerned may after giving a Government servant at least three month's pay and allowance in lieu of such notice, require him in public interest, to retire from service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. [(iii) A Government servant who retires voluntarily is required to retire in public interest under this rule on attaining the age of 50 years, or completing qualifying service of 30 years, shall be entitled to retiring pension and death-cum-retirement gratuity." 8. The Circular dated 27.4.1979 which has been issued by the Government under/appended to Rule 74 of the Bihar Service Code is as follows: 1. A Government Servant whose qualifying service is not less than 20 years can take retirement by giving three months' prior notice to the competent appointing authority. The Circular dated 27.4.1979 which has been issued by the Government under/appended to Rule 74 of the Bihar Service Code is as follows: 1. A Government Servant whose qualifying service is not less than 20 years can take retirement by giving three months' prior notice to the competent appointing authority. This scheme is completely voluntary in which the Government servant has himself to initiate and the Government has no alternative to retire Government servants under this scheme. 2. Under this scheme Pension shall be payable to the retiring Government servants. 6. Voluntarily one can withdraw his notice for retirement with the consent of appointing authority provided the request of this withdrawal is made before the expiry of three months of furnishing notice. 7. After 20 years of qualifying service the approval of the competent appointing authority is essential in furnishing notice of voluntary retirement. If the date of retirement falls prior to the date of expiry of such notice on the date of the Government servant would have retired voluntarily in his regard according to the existing rules (i.e., rules 74 B of Bihar Service Code). Paragraph 2 of Clause 1 of Liberalized Pension Scheme 1950 under Bihar Pension Rules & Rule 130 of Bihar Pension Rule or other similar rules and such approval can be generally given in all cases (Excluding cases of the category of the following "Ka" and "Kha") (Ka) Such cases in which with a view of awarding major punishment against a Government servant disciplinary action has to be taken or if any such action is pending and if it is the opinion of the Officer conducting the disciplinary action that in the concerned case it is essential to award punishment of dismissal and termination of the said Government servant keeping in view all the aspects of charges (framed against him). (Kha) In such cases when Prosecution is expected against Government servant in the court of prosecution has been initiated. But in case of this category if there is proposal to accept notice if such voluntary retirement than approval of the Minister-in-charge may be taken in the case of Government servant coming under Category ("Ka") and ("Kha"). In cases other than those the approval of the Head of the department is essential. But in case of this category if there is proposal to accept notice if such voluntary retirement than approval of the Minister-in-charge may be taken in the case of Government servant coming under Category ("Ka") and ("Kha"). In cases other than those the approval of the Head of the department is essential. In cases in which approval of notice for voluntary retirement is essential to be taken from appointing authority in such cases also approval to this effect in respect of the Government servants giving notice shall be deemed to be approved provided that no adverse order is passed by the competent authority prior to the date of giving notice. The date of retirement shall be deemed to have come into effect from the date mentioned in such cases. 9. From conjoined reading of the aforesaid provisions it clearly transpires that the Government servant may, after giving at least three months notice in writing to the appointing authority concerned, retire from service on the date on which the government servant completes thirty years of qualifying service or attains fifty years of age or any date thereafter which is to be specified in the notice. Thereafter, an executive order was issued under which the rule was relaxed and the qualifying service only of 20 years instead of 30 years was prescribed in the Circular and thereafter the government servant had an option to give a notice and there is a provision that if nothing adverse is contemplated under clause KA and KHA of the circular by the competent authority prior to the date of expiry of the period of notice, the retirement shall be deemed to come into effect from the date mentioned in such notice. 10. Similar question arose before this Court in the case of Dhananjay Sharma Versus The State of Jharkhand & Ors. (supra) and this Court allowed the writ application of the petitioner holding that the application for voluntary retirement made by an employee becomes effective on expiry of the period of notice served to the employer provided it does not comes under the restricted clause as enshrined under the Circular. 11. In the instant case, the application for voluntary retirement was made in the month of July, 2007 and the said statement made by the petitioner in paragraph no. 8 of the writ application has not been denied by the respondent State. 11. In the instant case, the application for voluntary retirement was made in the month of July, 2007 and the said statement made by the petitioner in paragraph no. 8 of the writ application has not been denied by the respondent State. The Circular dated 27.4.1979 which has been issued by the Government appended to the Rule 74 of Code clearly stipulates that the scheme is completely voluntary in which the government servant has to initiate and the Government has no alternative but to retire the government servant under this scheme. It further transpires from the said circular that as per Clause (Ka) such cases in which with a view of awarding major punishment against a Government Servant disciplinary action has to be taken or if any such action is pending and if it is the opinion of the officer conducting the disciplinary action that in the concerned case it is essential to award punishment of dismissal and termination of the said Government servant then only his VRS application will not be approved. Further Clause (Kha) says that in such cases also when prosecution is expected against the government servant in the court or prosecution has been initiated, those government employees will not get benefit of VRS scheme. In other words, as per the said circular, refusal can be granted only if the case of the Government employee can be categorized as provided in Clause (Ka) and (Kha) and the general rule provides that appointing authority will grant permission/approval in all cases except the cases mentioned in Clause (Ka) and (Kha) of the circular. The said circular is very clear that even the refusal has to be made within the period of notice and not beyond that. It further transpires that in the instant case, even the suspension letter was issued in the month of February, 2008, i.e. beyond three months period from the date of application for voluntary retirement and as such, the rejection order as contained in Letter No.562(S) dated 24.01.19 is not sustainable in the eye of law. 12. The law with respect to VRS is now no more res integra and the Government has no choice but to accept it unless the case falls under Clause (Ka) and (Kha) of the aforesaid circular. 12. The law with respect to VRS is now no more res integra and the Government has no choice but to accept it unless the case falls under Clause (Ka) and (Kha) of the aforesaid circular. Further it is also settled that after completion of three months from the date of application there would be deemed retirement and the petitioner will be entitled to all retirement benefits. 13. On perusal of the order dated 24.01.2019, it transpires that the respondent has taken one of the grounds while rejecting the application of the petitioner that 20 years of service was not completed at the time of making application as such, the claim of voluntary retirement and subsequent benefits are rejected. In this regard I would like to refer the notification dated 16.05.2005 whereby the benefit of 1st ACP scheme was granted to the petitioner w.e.f. 09.08.1999 after completing 12 years of continuous service meaning thereby to say that 12 years was completed way back on 09.08.1999. Further the application for VRS was preferred in July 2007 which was kept pending at the respondent’s end during notice period. As such, the notice period would also be covered for counting the period of 20 years for pensionary benefits. It further transpires from record that the refusal to the voluntary retirement application was made in the year 2019 after the order passed by this Court, which is beyond the settled law that any rejection has to be made within a period of three months i.e. period of notice and that rejection can be made only if the case of any person comes under the purview of Clause (Ka) and (Kha) of the aforesaid circular. 14. In view of the aforesaid facts and circumstances of the case and the discussions made herein above the order dated 24.01.2019 as contained in letter no. 562 (S) dated 24.01.2019 issued under the signature of Secretary to the Government, Road Construction Department by which it has been communicated to the petitioner that in the light of Para 1 of the Circular of Finance Department No. 6190 dated 27.4.1979, his claim of voluntary retirement has been rejected, is hereby quashed and set aside. The respondent State is further directed to calculate the retirement benefit of the petitioner and pay the same including settlement of pension in accordance with law. The respondent State is further directed to calculate the retirement benefit of the petitioner and pay the same including settlement of pension in accordance with law. It is clarified that the entire exercise should be completed within a period of four months from the date of receipt of a copy of the order. 15. With the aforesaid directions the instant writ application is allowed and disposed of.