Judgment · High Court

Heard Mr. S. Nath, learned counsel for the petitioner. Also heard Mr. M . Goni, learned CGC. The petitioner is aggrieved by Annexure-XV order dated 29.1.2007, by wh 2. ich it was notified that though the retirement of the petitioner from service wa s w.e.f. 1.4.2007, the petitioner is still in service on the strength of the int erim order passed in this proceeding. The petitioner while was working as Warra nt Officer Clerk (W/O CLK) submitted Annexure-I notice dated 9.4.2003 for volunt ary retirement stipulating 3 months’ time for such retirement. By Annexure-II or der dated 19.8.2003, it was notified that the petitioner would go on voluntary r etirement w.e.f. 1.4.2004. However, the petitioner by his Annexure-VIII letter d ated 21.9.2003, sought to withdraw his offer of voluntary retirement and the sai d application was duly forwarded by letter dated 22.9.2003. Having not heard an ything from the respondents, the petitioner made further representation dated 27 .11.2003 (Annexure-X to the writ petition) reiterating his earlier stand of with drawal of voluntary retirement. However, by Annexure-XII order dated 17.2.2004, it was conveyed that no action was warranted on the request for withdrawal of th e option for voluntary retirement. Being aggrieved, the petitioner filed the wri t petition being WP(C) No.1964/2004. 3. While entertaining the writ petition by order dated 26.3.2004, the impu gned order of rejection was stayed on the strength of which the petitioner conti nued to remain in service. However, the writ petition was disposed of by order dated 1.11.2006 recording the submission made by the learned counsel for the pet itioner that the same had become infructuous. Such a submission was made in vie w of the fact that in the meantime, the petitioner was promoted and that after e xpiry of long period of time, there was no force in the offer of voluntary retir ement. While disposing of the writ petition, it was provided that the petitioner would be at liberty to approach this Court once again, if the situation so dema nded. Thereafter, the authority of the Assam Rifles passed the Annexure-XV signa l dated 29.1.2007 notifying release of the petitioner from service w.e.f. 1.4.20 07 on acceptance of voluntary retirement. 4. In the counter affidavit filed by the respondents, it has been stated t hat the petitioner cannot be permitted to withdraw his offer for voluntary retir ement at his sweet will and that the same would require consideration of the a ppropriate authority. In this connection, they have referred to the provisions o f Rule 48-A of the CCS (Pension) Rules, 1972 dealing with offer and acceptance o f the voluntary retirement etc. As per Annexure-4 letter dated 17.3.2005, a Gove rnment servant who has elected to retire and has given necessary notice to that effect to the appointing authority, he would be precluded from withdrawing the n otice subsequently except with the specific approval of the authority provided, however, that the request for withdrawal shall be made before the intending dat e of the retirement. 5. In the instant case, the petitioner had withdrawn his offer of voluntar y retirement before the ineffective date i.e. 1.4.2004. Thus, it was incumbent on the part of the respondents to deal with the same instead of passing the impu gned order. The present impugned order has been passed falling back on the order of this Court referred to above, by which the earlier writ petition filed by th e petitioner was disposed of on the ground of being infructuous. However, liber ty was granted to the petitioner to pursue legal remedy, if he was aggrieved by any subsequent action of the respondents. 6. The petitioner has placed reliance on the judgment of this Court dated 13.6.2003 passed in WP(C) No.906/2000. Reliance has also been placed on the dec isions of the Apex Court reported in 1998 (9) SCC 559 (J.N. Srivastava v. Union of India) and 2001 (1) SCC 158 (Union of India v. Wing Commander T. Parthasarath i). 7. By the aforesaid decisions, it has been held that the offer of voluntary retirement can be withdrawn before the effective date. In the instant case, th e petitioner having withdrawn his offer of voluntary retirement before the effec tive date and having regard to the aforesaid rules adopted by the competent auth ority, I am of the considered opinion that the respondents could not have passed the impugned order dated 29.1.2007 (Annexure-XV). Accordingly, the said order stands interfered with by setting aside and quashing the same. 8. The writ petition is allowed. There shall be no order as to costs.