CRISTOPHER DAULAT MASIH Vs. STATE OF RAJASTHAN
LAWS(RAJ)-1968-7-4
HIGH COURT OF RAJASTHAN
Decided on
July 12,1968
CRISTOPHER DAULAT MASIH
Appellant
VERSUS
STATE OF RAJASTHAN
Respondents
JUDGEMENT
KAN SINGH, J. -
(1.)THE writ petition before me raises a short question of law whether a Government servant who had sought his retirement under Rule 244 (1) of the Rajasthan Service Rules on his completing qualifying service of 30 years by writing a letter for the same could be allowed to withdraw that option for retirement and, if so, under what circumstances. THE relevant facts are briefly these: - Petitioner Christopher Daulat Masih was an employee of the former Jaipur State. He joined service in that State in November 1936 and he came to be fixed up in the integrated set up of Rajasthan when the former Jaipur State merged with the then United State of Rajasthan. It is unnecessary to give a history of the various appointments held by him from time to time. Suffice it to say that it is common ground between the parties that from 1-7-60 he was substantively holding the post of Personal Assistant to the Chief Engineer (Buildings and Roads) in the State of Rajasthan. On 18-7 66 he wrote a letter to the Chief Engineer (Building and Roads) seeking his retirement, that letter is Annexure-P on the record and runs as follows: - "no. Rett. I To THE Chief Engineer, B. & R. , Rajasthan. P. W. D. , Jaipur, Sir, "i joined Govt. service on 27-11-1936 and would be completing 30 years qualifying service on 26-11-1956. Under rule 244 (1) of R. S R. , I opt retirement from 31-12-66. " I would be grateful for your kindly: - 1. Issuing my retirement order immediately.
(2.)SANCTIONING me 120 days leave preparatory to retirement from 3rd Sept. 1966.
Sanctioning me pension and gratuity. Thanking you in anticipation. Yours faithfully Sd/- CD. Masih Supdt. Estt. Sec. Chief Engineer, 18-7-1966. " Officer, P. W. D. , B&r. , Jaipur. 2. It would be evident from the above letter that he prayed for immediate orders regarding his retirement and for the grant of 120 days leave preparatory to retirement from 3-9-66. On receipt of this letter the Chief Engineer wrote to the petitioner to say with reference to his application of 18th July, 1966 that the petitioner had still 9-1/2 years to reach the age of superannuation and at the same time the Department also would derive the benefit of his experience as he was an old and efficient employee holding a responsible post. In the circumstances the Chief Engineer requested the petitioner to reconsider his decision and intimate the same to enable him to take further action in the matter. It appears that in reply to the Chief Engineer's aforesaid letter the petitioner wrote a long letter to him wherein he detailed a number of grievances regarding his supersession by a junior officer and after doing the same he reiterated his request for issuing orders regarding his retirement so that his pension papers may not be delayed. After receipt of this letter from the petitioner the Chief Engineer passed an order sanctioning the petitioner's retirement and also granting leave preparatory to retirement. That letter which is Annexure VV/3 on the record runs as follows - "officf OF THE CHIEF ENGINEER, P. W. D. /b&r. , RAJASTHAN, JAIPUR No. Estt/33 Dated 27-8-66 OFFICE ORDER Shri C. D. Masih, Office Sudt. Grade I of this office has completed 30 years qualifying service "and he has requested that he may be retired under Rule 244 (1) of R. S. R. vide his application dated 18 7-66, sanction is hereby accorded to retire him from Govt. service with effect from 1-1-1967. " Sd/- Chief Engineer (B&r), Rajasthan, Jaipur. " 3. The petitioner had also submitted an appeal to the Government praying justice in his case relating to supersession and seniority vis-a-vis others in the Department. He went on pursuing that case and wrote several letters. He also personally went to the Assistant Secretary and other officers in the Secretariat from time to time. On 7-12-66 he requested the Secretary to expedite the decision within 7 days. The Secretary wrote to say in reply to the petitioner's letter vide his letter No. F. 7 (205) PW/66 dated 17-12-66 that his case was under the examination of the Government and that final reply would follow. As the petitioner felt that his leave was going to expire on 31-12-66, he again requested the Secretary, Public Works Department on 19-12 66 to convey the Government decision before 31-12-66. According to him, a copy of this letter was endorsed by him to the Chief Engineer as well. On 23-12-66 he separately addressed a letter to the Chief Engineer to either sanction leave to the petitioner beyond 31-12-66 or to convey him the decision. He then contacted the Assistant Secretary on 29-12-66 and the latter told him that a reply would be pent to him on 30-12-66 positively. The petitioner then again contacted the Assistant Secretary on 30-12-66 at about 5 p. m. when he was informed that he should see the Deputy Secretary on 31-12-66 at 11a. m. Accordingly the petitioner again went to the Assistant Secretary on 31-12-66 at about 11. a. m. , but the Assistant Secretary was on leave. In between on 30-12-66 the petitioner had sent a telegraphic reminder to the Secretary and had also endorsed and posted a copy of the telegram to the Chief Engineer requesting him to convey the final reply of the Government or to sanction him leave at half pay. Petitioner proceeds to say that as he did not receive any orders till 31-12-66 he submitted an application to the Chief Engineer on 31-12-66 withdrawing his option for retirement and in the circumstances requested the Chief Engineer to sanction him leave as applied for and he also put in an application in the prescribed form. Since this is an important letter it is reproduced hereunder: - "to The Chief Engineer, (B&r), Public Works Department, Rajasthan, Jaipur. Sub : Appeal of Shri C. D. Masih, Superintendent P. W. D. (on leave Preparatory to retirement) Sir, As my appeal is under examination of the Government and a final reply is to be given by the Government and my leave preparatory to retirement expires on 31st December, 1966 and that it is likely to take some time at Government end in conveying final reply on my appeal, I may kindly be granted half pay leave from 1st January to 31st March, 1967 and accordingly my request for optional retirement may please be taken as withdrawn. Application in the prescribed proforma is enclosed herewith. It is requested that the leave applied for may please be sanctioned. This with reference to my application dated 19/ 20-12-66 addressed to the Secretary to the Government, Public Works Department, Rajasthan a copy thereof to you and my letter dated 23-12-66 to you as also copy telegram submitted to you on 30-12-1966. Thanking you in anticipation. Yours faithfully, Sd/- CD. Masih (On leave preparatory to retirement) F-186 Panchseel Margh, 'c' Scheme, Jaipur. "
The petitioner endorsed a copy of this letter to the Secretary to the Government as well saying that it was for his information and necessary action. It does not appear from the Government's reply that the Chief Engineer had taken any action on the letter dated 31-12-66 but it now transpires from the submission made by the learned Deputy Government Advocate in Court that that letter was kept pending on account of the pendency of the so-called appeal of the petitioner with the Government. Then on 25-1-67 letter was issued by the Government to the Chief Engineer and a copy of the same was also endorsed to the petitioner. This letter which is Annexure 'v on the record runs as under: - "copy of letter No. F. 7 (205) PW/66 dated 25-1-67 from the Secretary to Government, P. W. D. , Rajasthan, Jaipur to the Chief Engineer, P. W. D. (B&r ). , Rajasthan. Jaipur. Sub : Appeal of Shri C. D. Masih, Supdt. Chief Engineer's Office, P. W. D. (B&r) Rajasthan, Jaipur at present on leave preparatory to retirement. I am directed to refer to the correspondence resting with your letter No. Estt. /d. 3215/7-397/ Sec. I dt. 21-12-66 on the subject noted above and to say that the matter has been considered by the Government and "since Shri CD. Masih, has withdrawn his option for retirement, he may be allowed to continue in service, and may be sanctioned leave as applied for by him vide his application 31 Dec. 1966 addressed to you. He is being advised to make representations regarding seniority and promotion if he so wishes. " Copy forwarded to Shri CD. Masih F-186 Panchseel Marg 'c' Scheme Jaipur. He may make representations to the Chief Engineer, P. W. D. , B&r Rajasthan, Jaipur if he so desires. Sd/- Dy. Secy. " The original letter had been shown to me by the learned Deputy Government Advocate and it appears that the letter was issued under the signatures of the Deputy Secretary to the Government. In pursuance of this order of the State Government the petitioner reported himself for duty to the Chief Engineer and that report is as follows : "to The Chief Engineer, (B&r), Public Works Department, Rajasthan, Jaipur. Sir, I beg to report myself on duty in the forenoon of 1st April, 1967, after availing privilege leave and Half Pay leave upto 31st March, 1967. This is in compliance with the Secretary to the Government P. W. D. , Rajasthan Jaipur letter No. F. 7 (205)/pw/66 dated 25-1-1967. Yours faithfully, Sd/- CD. Masih, Superintendent, Chief Engineer's Office, B&r. , P. W. D. , Rajasthan. Dated 1st April, 1967. " jaipur. The Chief Engineer however, declined to take the petitioner on duty saying that he has already retired from service. Petitioner also made grievance of the fact in this writ petition about his so called super-session by juniors and about his seniority, but at the time of hearing learned counsel for the petitioner submitted that he did not want to press that aspect of his case as he would pursue the matter with the Government and, therefore. I need not deal with the contention regarding that aspect of the case.
As regards the petitioner being not allowed to join duty the case of the petitioner in brief is that he had the right to withdraw his option for retirement by 31-12-66 when his leave would come to an end though without his doing more the retirement would take effect from 1-1-67. Then it is submitted that his appeal with the Government remained pending which he was pursuing vigorously and yet the Government were not able to decide the same by 31-12-66. In these circumstances if the Government came to decide his case by their order dated 25-1-67 then he was restored to his previous position as a servant of the Government and consequently the Chief Engineer or the Deputy Secretary to the Government had no authority to refuse to recognise the status of the petitioner as a servant of the Government and decline to take him on duty on the ground that he was no longer a servant of the Government.
The writ petition has been opposed by the State of Rajasthan and the Chief Engineer. It is submitted that the petitioner had sought his voluntary retirement and before accepting the petitioner's offer for voluntary retirement the Chief Engineer asked him to reconsider the matter in his own interest as he had yet 9/1/2 years to go before be would be superannuated and he was an efficient and useful hand in the Department. As the petitioner did not like to change his mind, the Chief Engineer was left with no option but to allow the petitioner to retire and consequently he ordered his retirement and also granted him the leave preparatory to retirement as applied for by him. It is urged that it was not open to the petitioner to have changed his mind and withdrew his option for retirement once the Chief Engineer, who was the competent authority, had taken action on it and had ordered his retirement and also granted him leave. According to the respondents, petitioner could not have withdrawn the option for retirement without the permission of the competent authority and as the petitioner had not sought any such permission from the competent authority and submitted his letter for withdrawal of his option on the last day of his leave, that is, on 31-12-66, the petitioner cannot be heard to say that he was entitled to withdraw the option on his own without the sanction of the competent authority. It is argued that the competent authority had never given any such sanction for withdrawal of the option and from 1-1-67 petitioner's retirement became effective and he was no longer in the service of the State. As regards the Government order dated 25-1-67 it is pointed out that this did not reflect the correct position and as soon as the Chief Engineer came to know of this order he brought to the notice of the Government that the petitioner having sought his retirement and being allowed to do so and the Accountant General having issued the necessary slips of his leave the petitioner was not competent to withdraw his option. The respondents maintained that when the Chief Engineer brought this to the notice of the Government the latter agreed with the stand taken by the Chief Engineer and pointed out to him that it was never meant by the latter of 25th January, 1957 that Government themselves had passed any order, but it was left to the Chief Engineer to deal with the matter and even thereafter the Chief Engineer might deal with the matter according to the correct position. In the circumstances the respondents urged the Chief Engineer was justified in declining to take the petitioner back on duty as he had retired with effect from 1-1-67 and could no longer have been regarded in the service of the Government.
As I have already mentioned at the outset the main question that merits consideration is whether in the circumstances it was open to the petitioner to have withdrawn his option for retirement. I ought to mention that there is no dispute between the parties regarding the facts but they try to give their own interpretation to the various documents which I will have occasion to refer again at the appropriate places in the judgment.
I may to begin with read rule 244 of the Rajasthan Service Rules : "r. 244. Optional retirement after completing 30 Tears of service.- (1) A Government servant may, after giving at least three months' previous notice in writing to the Government, retire from the service or on the date on which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice. Provided that a Government servant of Class IV can seek retirement only if be has completed 30 years of qualifying service. (2) Compulsory retirement after completion of 25 years service.- The Government may, after giving him at least three months' previous notice in writing, require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice. Provided that a Government servant of Class IV can only be required to retire on the date on which he completes 25 years of qualifying service or any date thereafter. " Sub-rule (1) of Rule 244 gives an option to retirement to a Government servant inter alia on his completing 30 years qualifying service. The plain language of this sub-rule shows that the matter rests entirely with the Government servant to ask for retirement or not. Sub-rule (2) on the other hand, confers the power on the Government to order the compulsory retirement of a Government servant after he had put in 25 years of service. I am not concerned with sub-rule (2) in the present case. The rule, however, does not say anything whether sanction of any authority is necessary before the Government servant would actually quit his office, nor does it say anything whether the Government servant can withdraw his option and, if so, by what date. Also the rule does not say as to who will be the competent authority for dealing with a question relating to withdrawal of option by the Government servant. In my view, these are matters in the administrative sphere and they are not governed by any statutory provision.
It is well settled by a decision of the Supreme Court in Jairam vs. Union of India (1) that it is open to a servant who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained. The relevant observations in that case are contained in para-7 of the judgment and they are as follows : "it may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained : but he can be allowed to do so so long as he continues in service and not after it has terminated. " That was a case where the civil servant concerned having put in 33 years of service, that is, for more than the requisite period as qualifying service, sought permission to retire and have leave admissible to him. The officer concerned, that is, the Director of the Institute where the civil servant was serving did not care to spare him. The civil servant went on repeating his prayer but ultimately he was allowed to retire and was given post retirement leave. However, before the leave expired the civil servant expressed his desire to withdraw his option for retirement and prayed that he be taken on duty back. The officer concerned declined to accept the civil servant back on duty saying that he had already retired. The civil servant then challenged the orders of the Government officer concerned by a civil suit. On the basis of rule 56 of the Fundamental Rules it was argued that the plaintiff could have served upto the age of 60 years and in the circumstances the pre mature retirement of the civil servant was against the provision of sec. 240 (8) of the Government of India Act, 1935. This contention was rejected by the trial court as well as the appellate court. Then the civil servant went up in appeal to the Supreme Court. Their Lordships also negatived the contention and having disposed of that point made the above observations extracted by me from the judgment.
I have most anxiously considered the judgment. The observations are in the circumstances in the nature of obiter dicta but even so, so far as I am concerned, they are entitled to greatest weight. I have, therefore, considered these observations, but at the same time, not lost sight of the particular facts and circumstances of that case. These observations lend support to the view that it is open to a civil servant who has expressed a desire to retire from service and applied to his superior officer to give him permission to retire to change his mind subsequently and ask for the cancellation of the permission thus obtained by the civil servant, but he can be allowed to change his mind as long as he continues in service and not after it has been terminated.
In the case before their Lordships the servant was retired and then granted post retirement leave. In the present, case, on the other hand, the leave was granted before retirement. Thus in that case when the civil servant wanted to withdraw his so called option he was already out of service. This is a distinguishing feature of that case.
As I have already stated that rule 244 (1) does not require in so many words that the Government, servant can retire only after obtaining the permission of any authority. This appears to be an unqualified right of the civil servant to seek retirement from service when the civil servant has put in the necessary qualifying service. The requirement for sanction may be in pursuance of administrative orders or instructions because it may very well happen that a civil servant may have to hand over charge of records and papers that he might be having as well as of other articles and property of the Government. Likewise, as to which is the authority who has to deal with the question of withdrawal of option for retirement has not been mentioned in the rule itself and necessarily this has to be governed by the practice of the Department and the Government. It is true, the Government servant has to change his mind before his service tenure comes to an end, because once the service tenure comes to an end there can hardly be any question of his withdrawing the option for retirement. At the same time once the Government servant has unequivocally expressed a desire to withdraw his option before the competent authority in the Department or the Government themselves then rule 244 does not say how long the matter could be kept pending by the authorities and before what date the authority or the Government are bound to take a decision. In my view, so far as the Government servant is concerned, once he has unequivocally expressed a desire to withdraw his option for retirement either before the competent authority of the department or the Government themselves then the authorities may take their own time to dispose of the matter and once they decide that the civil servant concerned may be allowed to withdraw his option then in my view, that is the end of the matter and the civil servant will stand restored to his old status as a civil servant. The observations of their Lordships can, in my humble opinion, be construed to cast an obligation on the civil servant concerned to change his mind to withdraw the option while he is in service. But. once he has done so, then the matter becomes pending and in a pending matter the question of retirement from a particular date will be determinable only as a result of the final order that the competent authority of the Department or the Government may think fit to pass. It will be for the competent authority of the Government to decide whether the Government servant should be allowed to withdraw the option he has once exercised, but there is no limitation that this decision should be taken by the competent authority of the Government Only while the civil servant concerned is still on leave preparatory to retirement.
In the present case it does appear that even before 31-12-66 the petitioner had started clamouring for early decision of his appeal and while doing so he submitted that in case it was not possible to decide his appeal expeditiously before 31-12-66, then he be granted leave on half pay after that date. In other words, the petitioner very much wanted to continue in service even after 31-12-66, if his appeal was not disposed of in the meantime. The appeal undoubtedly was not disposed of. I need not be understood to say anything about the nature of the appeal, because it has not been shown as to under what law that appeal was made before the Government. Anyway, that may be an administrative appeal in the nature of a representation, but I am not concerned with the nature of the so called appeal. Be that as it may, the fact remains that the representation or the appeal lodged by the petitioner could not be disposed of by 31-12-66 and in the circumstances the petitioner submitted that if his appeal was not disposed of then he should be treated still on leave after 31-12-66 on half pay. The implications of the letter dated 31-12-66 have to be understood in the light of what has preceded. I am, therefore, satisfied that by his letter dated 31-12-66 the petitioner had expressed an unequivocal desire for withdrawing the option for retirement.
(3.)AS already observed above, the Chief Engineer did not communicate any orders to the petitioner regarding the letter dated 31-12-66 and he kept it pending in anticipation of the Government orders on the so-called appeal lodged by the petitioner. In these circumstances if the Government had considered the whole matter relating to the petitioner's case then 1 do not think that the Government were not competent to do so. Annexure V, extracted by me above, shows that this is in the form of a letter conveying Government orders, because it begins with the words "i am directed". Then in the body of the letter it is mentioned "to say that the matter has been considered by the Government and since Shri G. D. Masih has withdrawn his option for retirement, he may be allowed to continue in service, and may be sanctioned leave as applied for by him vide his application of 31 Dec. , 1966 addressed to you. He is being advised to make representations regarding seniority and promotion if he so wishes. " The recitals in this letter unmistakably show that the matter had been examined by the Government and they had taken note of the fact that Shri G. D. Masih had withdrawn his option for retirement and accordingly it was ordered that he may be allowed to continue in service and may be sanctioned leave as applied for by him vide his application dated 31-12-66. About this letter it was submitted by learned Deputy Government Advocate that the writer of this letter was the Deputy Secretary and on being apprised by the Chief Engineer vide his letter dated 13-2-67 he wrote a Demi Official letter (Ex. R. 6 on record) to the Chief Engineer which was as follows : Public Works Department, Jaipur, Rajasthan. D. O. No. F. 7 (205)BW/66. 31st March, 1957 "r. C. Mathur, Deputy Secretary. My dear Shri Sarin, Kindly refer to your D. O. letter No. Estt/ce/call-I/17-397/d-3908 dated the 30thmarch, 1967, regarding the continuance of Shri G. D. Masih retired Superintendent of the Chief Engineer's office. AS already discussed with you and the Chief Engineer the application of Shri G. D. Masih was dealt with in the Secretariat as his representation and it was found that he had sought retirement at his own accord, so there was no question of his reemployment unless and untill he had been permitted by the Chief Engineer to withdraw his option. What was desired from this office was that it was for the Chief Engineer to take decision on his representation in any manner he likes because he was competent enough to deal with his representation. This office has nothing more to add in this matter. Yours sincerely, Sd/- 31-3-67 (R. C. Mathur) Shri K. K. Sarin, T. A. to Chief Engineer, P. W. D. (B&r ). , Rajasthan, Jaipur. "
If one were to contrast the language of this D. O. with Annexure V, it will be evident that the D. O. does not recite that on the second occasion it was the Government who considered the matter, it appears that on the letter of the Chief Engineer to which I will be making a reference in a moment, the Deputy Secretary made certain observations showing his agreement with the Chief Engineer that there was no question of reemployment of the petitioner unless and until he had been permitted by the Chief Engineer to withdraw his option and he added that what was desired by him was that it was the Chief Engineer who was to take decision on his representation in any manner he liked, because he was alone competent enough to deal with his representation. The letter of the Chief Engineer to which the D. O. of the Deputy Secretary was a reply was as follows : "the Chief Engineer, P. W. D. B&r ). , Rajasthan, Jaipur. Secretary to the Government, Public Works Department, Rajasthan, Jaipur. No. Esstt/ce/cell-I-397/d-3669 Dated 13th Feb. , '67. Sub-Appeal of Shri C. D. Masih, Superintendent, Chief Engineer's Office, P. W. D. (B & R ). , Rajasthan, Jaipur at present on leave preparatory to retirement. Ref: - Your letter No. F. 7 (205) PW/66 dated the 25th January, 1967. Sir, Shri C. D. Masih applied to the Chief Engineer for premature retirement vide his application dated 18-7-66 under Rule 244 (1) of Rajasthan Service Rules. Thereafter he was asked personally and in writing by my Technical Assistant to reconsider his request but he insisted for retirement and accordingly his retirement order was issued by this office on 27-8-66. He was also sanctioned 120 days leave preparatory to retirement as desired by him. Now the Accountant General has issued his P. P. O No 20658 (R) and G. P. O. 21921 (R) vide his letter No. PRIV/5659-62 dated 29-1-67. The retirement order of Shri Masih was issued by this office on his request in writing. Later on if he was desirous of continuing in the Department he should have requested the undersigned in continuation of his previous application for seeking withdrawal of his optional retirement instead of requesting the Government. As this has not been done by him and also the Accountant General has issued his P. P. O. and C. P. O. . the question of continuing Shri Masih in the Department on the post of Superintendent Grade-I at this late stage does not arise. Yours faithfully, Sd/- (B. D. Mathur) 10-2-67 Chief Enginear, (B & R ). ," It appears that in his letter the Chief Engineer was carried away too much by the thought that instead of requesting the Chief Engineer for withdrawal of the optional retirement the petitioner had approached the Government. The Chief Engineer in the circumstances considered that as this had not been done by him and also as the Accountant General had issued his "p. P. O. " and G. P. O. " the question of continuing Shri C. D. Masih on the post of Superintendent Grade-I at this late stage did not arise.
If what was conveyed by Annexure V was a Government order, then I have not been able to appreciate the language in which the Chief Engineer has chosen to address the Government To put the matter mildly what the Chief Engineer has written in the second para of his letter smacks of impertinence. Since the matter was within the administrative sphere, as already observed by me, just as it was open to the Chief Engineer to allow the petitioner to withdraw his option for retirement, it was no less open to the Government as the highest authority on the executive side to permit the petitioner to withdraw his option for retirement. The Chief Engineer was not justified in making too much out of the petitioner not approaching the Chief Engineer in the first instance as he thought. Apart from this the position is not even factually correct, because it is evident that the petitioner wrote a letter on 31-12-66 to the Chief Engineer in the first instance which he kept pending in anticipation of Government decision about the petitioner's so called appeal. The petitioner had only endorsed a copy of that letter to the Chief Engineer to the Government and perusal of Annexure V shows that it was a letter of the petitioner dated 31-12-65 that had been taken note of by the Government.
Learned Deputy Government Advocate then submitted that the writer of the letter Annexure V was the Deputy Secretary himself and likewise he was the writer of the D. O. Annexure R. 6 and, therefore, whatever interpretation had been placed by the Deputy Secretary should be accepted. I am afraid, I am unable to accept this contention which is so widely put. It is true, where the matter is not clear enough the view regarding the meaning of a letter taken by the writer of that letter may be taken to be correct in the first instance. But letter Annexure V, in my view, does not suffer from any ambiguity. If the Deputy Secretary has just meekly accepted the observations of the Chief Engineer in his letter to the Government then it does not bring any credit to him. As to who deals with the Government business in the Secretariat is an internal matter normally governed by the business rules, but the outward form of Annexure V leaves no doubt in my mind that this was intended to be a Government order and has to be accepted as such. As I have already observed, it starts with the words" I am directed" and in the body thereof it is mentioned that the Government have considered the matter and have taken note of the withdrawal of option for retirement by the petitioner. The D. O. of the Deputy Secretary cannot be placed at par with Annexure V. Thus both for the reason that the D. O. Annexure. R. 6. cannot be placed at par with Annexure V as regards it being a Government order and also taking the plain meaning of Annexure V, I am satisfied that it were the Government who ordered that the petitioner be allowed to continue in service and be sanctioned leave. The Government order could have been changed only if it were found to be contrary to any rule of law or that it had been vitiated on account of any fraud or mis-representation. This is not so.
Lastly, I may deal with the submission about the use of expression "may" in Annexure V. This is in usual form as a Government letter and one acquainted with the form of Government order would have no difficulty in coming to the conclusion that it was a Government order in unmistakable form allowing the petitioner to continue in service. A person is continued in service only when he is already in service. Therefore, it appears that as a result of the Government deciding the petitioner's case as a whole, they came to the conclusion that he may be allowed to continue in service. The Cheif Engineer has, in may view, no business to set his face against the clear orders of the Government. If he had to point out any mistake or inaccuracies or illegalities therein, he could have done so in temperate, courteous and respectful manner. Now, what is the effect of Annexure V. In my view, it clearly results in doing away with the effect of the earlier letter of the petitioner giving option for retirement and the order issued by the Chief Engineer for retirement. Once the petitioner can be said to have re-acquired the status of a Government servant by virtue of Annexure V, then he acquires a right to remain in service till he is made to quit his office in accordance with the Rules. That being so, letter Annexure VI or the subsequent orders issued by the Chief Engineer and his refusal to take back the petitioner in service are of no avail.
For these reasons I allow this writ petition and order that by virtue of the Government order conveyed in their letter No. 7 (205) PW/66, dated 25-1-67, Annexure V on record, the respondents shall treat the petitioner to be in Government service and permit him to resume his duties on the substantive post. The petitioner will get his costs of this writ petition from the respondents. .
;
(2.)SANCTIONING me 120 days leave preparatory to retirement from 3rd Sept. 1966.
Sanctioning me pension and gratuity. Thanking you in anticipation. Yours faithfully Sd/- CD. Masih Supdt. Estt. Sec. Chief Engineer, 18-7-1966. " Officer, P. W. D. , B&r. , Jaipur. 2. It would be evident from the above letter that he prayed for immediate orders regarding his retirement and for the grant of 120 days leave preparatory to retirement from 3-9-66. On receipt of this letter the Chief Engineer wrote to the petitioner to say with reference to his application of 18th July, 1966 that the petitioner had still 9-1/2 years to reach the age of superannuation and at the same time the Department also would derive the benefit of his experience as he was an old and efficient employee holding a responsible post. In the circumstances the Chief Engineer requested the petitioner to reconsider his decision and intimate the same to enable him to take further action in the matter. It appears that in reply to the Chief Engineer's aforesaid letter the petitioner wrote a long letter to him wherein he detailed a number of grievances regarding his supersession by a junior officer and after doing the same he reiterated his request for issuing orders regarding his retirement so that his pension papers may not be delayed. After receipt of this letter from the petitioner the Chief Engineer passed an order sanctioning the petitioner's retirement and also granting leave preparatory to retirement. That letter which is Annexure VV/3 on the record runs as follows - "officf OF THE CHIEF ENGINEER, P. W. D. /b&r. , RAJASTHAN, JAIPUR No. Estt/33 Dated 27-8-66 OFFICE ORDER Shri C. D. Masih, Office Sudt. Grade I of this office has completed 30 years qualifying service "and he has requested that he may be retired under Rule 244 (1) of R. S. R. vide his application dated 18 7-66, sanction is hereby accorded to retire him from Govt. service with effect from 1-1-1967. " Sd/- Chief Engineer (B&r), Rajasthan, Jaipur. " 3. The petitioner had also submitted an appeal to the Government praying justice in his case relating to supersession and seniority vis-a-vis others in the Department. He went on pursuing that case and wrote several letters. He also personally went to the Assistant Secretary and other officers in the Secretariat from time to time. On 7-12-66 he requested the Secretary to expedite the decision within 7 days. The Secretary wrote to say in reply to the petitioner's letter vide his letter No. F. 7 (205) PW/66 dated 17-12-66 that his case was under the examination of the Government and that final reply would follow. As the petitioner felt that his leave was going to expire on 31-12-66, he again requested the Secretary, Public Works Department on 19-12 66 to convey the Government decision before 31-12-66. According to him, a copy of this letter was endorsed by him to the Chief Engineer as well. On 23-12-66 he separately addressed a letter to the Chief Engineer to either sanction leave to the petitioner beyond 31-12-66 or to convey him the decision. He then contacted the Assistant Secretary on 29-12-66 and the latter told him that a reply would be pent to him on 30-12-66 positively. The petitioner then again contacted the Assistant Secretary on 30-12-66 at about 5 p. m. when he was informed that he should see the Deputy Secretary on 31-12-66 at 11a. m. Accordingly the petitioner again went to the Assistant Secretary on 31-12-66 at about 11. a. m. , but the Assistant Secretary was on leave. In between on 30-12-66 the petitioner had sent a telegraphic reminder to the Secretary and had also endorsed and posted a copy of the telegram to the Chief Engineer requesting him to convey the final reply of the Government or to sanction him leave at half pay. Petitioner proceeds to say that as he did not receive any orders till 31-12-66 he submitted an application to the Chief Engineer on 31-12-66 withdrawing his option for retirement and in the circumstances requested the Chief Engineer to sanction him leave as applied for and he also put in an application in the prescribed form. Since this is an important letter it is reproduced hereunder: - "to The Chief Engineer, (B&r), Public Works Department, Rajasthan, Jaipur. Sub : Appeal of Shri C. D. Masih, Superintendent P. W. D. (on leave Preparatory to retirement) Sir, As my appeal is under examination of the Government and a final reply is to be given by the Government and my leave preparatory to retirement expires on 31st December, 1966 and that it is likely to take some time at Government end in conveying final reply on my appeal, I may kindly be granted half pay leave from 1st January to 31st March, 1967 and accordingly my request for optional retirement may please be taken as withdrawn. Application in the prescribed proforma is enclosed herewith. It is requested that the leave applied for may please be sanctioned. This with reference to my application dated 19/ 20-12-66 addressed to the Secretary to the Government, Public Works Department, Rajasthan a copy thereof to you and my letter dated 23-12-66 to you as also copy telegram submitted to you on 30-12-1966. Thanking you in anticipation. Yours faithfully, Sd/- CD. Masih (On leave preparatory to retirement) F-186 Panchseel Margh, 'c' Scheme, Jaipur. "
The petitioner endorsed a copy of this letter to the Secretary to the Government as well saying that it was for his information and necessary action. It does not appear from the Government's reply that the Chief Engineer had taken any action on the letter dated 31-12-66 but it now transpires from the submission made by the learned Deputy Government Advocate in Court that that letter was kept pending on account of the pendency of the so-called appeal of the petitioner with the Government. Then on 25-1-67 letter was issued by the Government to the Chief Engineer and a copy of the same was also endorsed to the petitioner. This letter which is Annexure 'v on the record runs as under: - "copy of letter No. F. 7 (205) PW/66 dated 25-1-67 from the Secretary to Government, P. W. D. , Rajasthan, Jaipur to the Chief Engineer, P. W. D. (B&r ). , Rajasthan. Jaipur. Sub : Appeal of Shri C. D. Masih, Supdt. Chief Engineer's Office, P. W. D. (B&r) Rajasthan, Jaipur at present on leave preparatory to retirement. I am directed to refer to the correspondence resting with your letter No. Estt. /d. 3215/7-397/ Sec. I dt. 21-12-66 on the subject noted above and to say that the matter has been considered by the Government and "since Shri CD. Masih, has withdrawn his option for retirement, he may be allowed to continue in service, and may be sanctioned leave as applied for by him vide his application 31 Dec. 1966 addressed to you. He is being advised to make representations regarding seniority and promotion if he so wishes. " Copy forwarded to Shri CD. Masih F-186 Panchseel Marg 'c' Scheme Jaipur. He may make representations to the Chief Engineer, P. W. D. , B&r Rajasthan, Jaipur if he so desires. Sd/- Dy. Secy. " The original letter had been shown to me by the learned Deputy Government Advocate and it appears that the letter was issued under the signatures of the Deputy Secretary to the Government. In pursuance of this order of the State Government the petitioner reported himself for duty to the Chief Engineer and that report is as follows : "to The Chief Engineer, (B&r), Public Works Department, Rajasthan, Jaipur. Sir, I beg to report myself on duty in the forenoon of 1st April, 1967, after availing privilege leave and Half Pay leave upto 31st March, 1967. This is in compliance with the Secretary to the Government P. W. D. , Rajasthan Jaipur letter No. F. 7 (205)/pw/66 dated 25-1-1967. Yours faithfully, Sd/- CD. Masih, Superintendent, Chief Engineer's Office, B&r. , P. W. D. , Rajasthan. Dated 1st April, 1967. " jaipur. The Chief Engineer however, declined to take the petitioner on duty saying that he has already retired from service. Petitioner also made grievance of the fact in this writ petition about his so called super-session by juniors and about his seniority, but at the time of hearing learned counsel for the petitioner submitted that he did not want to press that aspect of his case as he would pursue the matter with the Government and, therefore. I need not deal with the contention regarding that aspect of the case.
As regards the petitioner being not allowed to join duty the case of the petitioner in brief is that he had the right to withdraw his option for retirement by 31-12-66 when his leave would come to an end though without his doing more the retirement would take effect from 1-1-67. Then it is submitted that his appeal with the Government remained pending which he was pursuing vigorously and yet the Government were not able to decide the same by 31-12-66. In these circumstances if the Government came to decide his case by their order dated 25-1-67 then he was restored to his previous position as a servant of the Government and consequently the Chief Engineer or the Deputy Secretary to the Government had no authority to refuse to recognise the status of the petitioner as a servant of the Government and decline to take him on duty on the ground that he was no longer a servant of the Government.
The writ petition has been opposed by the State of Rajasthan and the Chief Engineer. It is submitted that the petitioner had sought his voluntary retirement and before accepting the petitioner's offer for voluntary retirement the Chief Engineer asked him to reconsider the matter in his own interest as he had yet 9/1/2 years to go before be would be superannuated and he was an efficient and useful hand in the Department. As the petitioner did not like to change his mind, the Chief Engineer was left with no option but to allow the petitioner to retire and consequently he ordered his retirement and also granted him the leave preparatory to retirement as applied for by him. It is urged that it was not open to the petitioner to have changed his mind and withdrew his option for retirement once the Chief Engineer, who was the competent authority, had taken action on it and had ordered his retirement and also granted him leave. According to the respondents, petitioner could not have withdrawn the option for retirement without the permission of the competent authority and as the petitioner had not sought any such permission from the competent authority and submitted his letter for withdrawal of his option on the last day of his leave, that is, on 31-12-66, the petitioner cannot be heard to say that he was entitled to withdraw the option on his own without the sanction of the competent authority. It is argued that the competent authority had never given any such sanction for withdrawal of the option and from 1-1-67 petitioner's retirement became effective and he was no longer in the service of the State. As regards the Government order dated 25-1-67 it is pointed out that this did not reflect the correct position and as soon as the Chief Engineer came to know of this order he brought to the notice of the Government that the petitioner having sought his retirement and being allowed to do so and the Accountant General having issued the necessary slips of his leave the petitioner was not competent to withdraw his option. The respondents maintained that when the Chief Engineer brought this to the notice of the Government the latter agreed with the stand taken by the Chief Engineer and pointed out to him that it was never meant by the latter of 25th January, 1957 that Government themselves had passed any order, but it was left to the Chief Engineer to deal with the matter and even thereafter the Chief Engineer might deal with the matter according to the correct position. In the circumstances the respondents urged the Chief Engineer was justified in declining to take the petitioner back on duty as he had retired with effect from 1-1-67 and could no longer have been regarded in the service of the Government.
As I have already mentioned at the outset the main question that merits consideration is whether in the circumstances it was open to the petitioner to have withdrawn his option for retirement. I ought to mention that there is no dispute between the parties regarding the facts but they try to give their own interpretation to the various documents which I will have occasion to refer again at the appropriate places in the judgment.
I may to begin with read rule 244 of the Rajasthan Service Rules : "r. 244. Optional retirement after completing 30 Tears of service.- (1) A Government servant may, after giving at least three months' previous notice in writing to the Government, retire from the service or on the date on which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice. Provided that a Government servant of Class IV can seek retirement only if be has completed 30 years of qualifying service. (2) Compulsory retirement after completion of 25 years service.- The Government may, after giving him at least three months' previous notice in writing, require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice. Provided that a Government servant of Class IV can only be required to retire on the date on which he completes 25 years of qualifying service or any date thereafter. " Sub-rule (1) of Rule 244 gives an option to retirement to a Government servant inter alia on his completing 30 years qualifying service. The plain language of this sub-rule shows that the matter rests entirely with the Government servant to ask for retirement or not. Sub-rule (2) on the other hand, confers the power on the Government to order the compulsory retirement of a Government servant after he had put in 25 years of service. I am not concerned with sub-rule (2) in the present case. The rule, however, does not say anything whether sanction of any authority is necessary before the Government servant would actually quit his office, nor does it say anything whether the Government servant can withdraw his option and, if so, by what date. Also the rule does not say as to who will be the competent authority for dealing with a question relating to withdrawal of option by the Government servant. In my view, these are matters in the administrative sphere and they are not governed by any statutory provision.
It is well settled by a decision of the Supreme Court in Jairam vs. Union of India (1) that it is open to a servant who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained. The relevant observations in that case are contained in para-7 of the judgment and they are as follows : "it may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained : but he can be allowed to do so so long as he continues in service and not after it has terminated. " That was a case where the civil servant concerned having put in 33 years of service, that is, for more than the requisite period as qualifying service, sought permission to retire and have leave admissible to him. The officer concerned, that is, the Director of the Institute where the civil servant was serving did not care to spare him. The civil servant went on repeating his prayer but ultimately he was allowed to retire and was given post retirement leave. However, before the leave expired the civil servant expressed his desire to withdraw his option for retirement and prayed that he be taken on duty back. The officer concerned declined to accept the civil servant back on duty saying that he had already retired. The civil servant then challenged the orders of the Government officer concerned by a civil suit. On the basis of rule 56 of the Fundamental Rules it was argued that the plaintiff could have served upto the age of 60 years and in the circumstances the pre mature retirement of the civil servant was against the provision of sec. 240 (8) of the Government of India Act, 1935. This contention was rejected by the trial court as well as the appellate court. Then the civil servant went up in appeal to the Supreme Court. Their Lordships also negatived the contention and having disposed of that point made the above observations extracted by me from the judgment.
I have most anxiously considered the judgment. The observations are in the circumstances in the nature of obiter dicta but even so, so far as I am concerned, they are entitled to greatest weight. I have, therefore, considered these observations, but at the same time, not lost sight of the particular facts and circumstances of that case. These observations lend support to the view that it is open to a civil servant who has expressed a desire to retire from service and applied to his superior officer to give him permission to retire to change his mind subsequently and ask for the cancellation of the permission thus obtained by the civil servant, but he can be allowed to change his mind as long as he continues in service and not after it has been terminated.
In the case before their Lordships the servant was retired and then granted post retirement leave. In the present, case, on the other hand, the leave was granted before retirement. Thus in that case when the civil servant wanted to withdraw his so called option he was already out of service. This is a distinguishing feature of that case.
As I have already stated that rule 244 (1) does not require in so many words that the Government, servant can retire only after obtaining the permission of any authority. This appears to be an unqualified right of the civil servant to seek retirement from service when the civil servant has put in the necessary qualifying service. The requirement for sanction may be in pursuance of administrative orders or instructions because it may very well happen that a civil servant may have to hand over charge of records and papers that he might be having as well as of other articles and property of the Government. Likewise, as to which is the authority who has to deal with the question of withdrawal of option for retirement has not been mentioned in the rule itself and necessarily this has to be governed by the practice of the Department and the Government. It is true, the Government servant has to change his mind before his service tenure comes to an end, because once the service tenure comes to an end there can hardly be any question of his withdrawing the option for retirement. At the same time once the Government servant has unequivocally expressed a desire to withdraw his option before the competent authority in the Department or the Government themselves then rule 244 does not say how long the matter could be kept pending by the authorities and before what date the authority or the Government are bound to take a decision. In my view, so far as the Government servant is concerned, once he has unequivocally expressed a desire to withdraw his option for retirement either before the competent authority of the department or the Government themselves then the authorities may take their own time to dispose of the matter and once they decide that the civil servant concerned may be allowed to withdraw his option then in my view, that is the end of the matter and the civil servant will stand restored to his old status as a civil servant. The observations of their Lordships can, in my humble opinion, be construed to cast an obligation on the civil servant concerned to change his mind to withdraw the option while he is in service. But. once he has done so, then the matter becomes pending and in a pending matter the question of retirement from a particular date will be determinable only as a result of the final order that the competent authority of the Department or the Government may think fit to pass. It will be for the competent authority of the Government to decide whether the Government servant should be allowed to withdraw the option he has once exercised, but there is no limitation that this decision should be taken by the competent authority of the Government Only while the civil servant concerned is still on leave preparatory to retirement.
In the present case it does appear that even before 31-12-66 the petitioner had started clamouring for early decision of his appeal and while doing so he submitted that in case it was not possible to decide his appeal expeditiously before 31-12-66, then he be granted leave on half pay after that date. In other words, the petitioner very much wanted to continue in service even after 31-12-66, if his appeal was not disposed of in the meantime. The appeal undoubtedly was not disposed of. I need not be understood to say anything about the nature of the appeal, because it has not been shown as to under what law that appeal was made before the Government. Anyway, that may be an administrative appeal in the nature of a representation, but I am not concerned with the nature of the so called appeal. Be that as it may, the fact remains that the representation or the appeal lodged by the petitioner could not be disposed of by 31-12-66 and in the circumstances the petitioner submitted that if his appeal was not disposed of then he should be treated still on leave after 31-12-66 on half pay. The implications of the letter dated 31-12-66 have to be understood in the light of what has preceded. I am, therefore, satisfied that by his letter dated 31-12-66 the petitioner had expressed an unequivocal desire for withdrawing the option for retirement.
(3.)AS already observed above, the Chief Engineer did not communicate any orders to the petitioner regarding the letter dated 31-12-66 and he kept it pending in anticipation of the Government orders on the so-called appeal lodged by the petitioner. In these circumstances if the Government had considered the whole matter relating to the petitioner's case then 1 do not think that the Government were not competent to do so. Annexure V, extracted by me above, shows that this is in the form of a letter conveying Government orders, because it begins with the words "i am directed". Then in the body of the letter it is mentioned "to say that the matter has been considered by the Government and since Shri G. D. Masih has withdrawn his option for retirement, he may be allowed to continue in service, and may be sanctioned leave as applied for by him vide his application of 31 Dec. , 1966 addressed to you. He is being advised to make representations regarding seniority and promotion if he so wishes. " The recitals in this letter unmistakably show that the matter had been examined by the Government and they had taken note of the fact that Shri G. D. Masih had withdrawn his option for retirement and accordingly it was ordered that he may be allowed to continue in service and may be sanctioned leave as applied for by him vide his application dated 31-12-66. About this letter it was submitted by learned Deputy Government Advocate that the writer of this letter was the Deputy Secretary and on being apprised by the Chief Engineer vide his letter dated 13-2-67 he wrote a Demi Official letter (Ex. R. 6 on record) to the Chief Engineer which was as follows : Public Works Department, Jaipur, Rajasthan. D. O. No. F. 7 (205)BW/66. 31st March, 1957 "r. C. Mathur, Deputy Secretary. My dear Shri Sarin, Kindly refer to your D. O. letter No. Estt/ce/call-I/17-397/d-3908 dated the 30thmarch, 1967, regarding the continuance of Shri G. D. Masih retired Superintendent of the Chief Engineer's office. AS already discussed with you and the Chief Engineer the application of Shri G. D. Masih was dealt with in the Secretariat as his representation and it was found that he had sought retirement at his own accord, so there was no question of his reemployment unless and untill he had been permitted by the Chief Engineer to withdraw his option. What was desired from this office was that it was for the Chief Engineer to take decision on his representation in any manner he likes because he was competent enough to deal with his representation. This office has nothing more to add in this matter. Yours sincerely, Sd/- 31-3-67 (R. C. Mathur) Shri K. K. Sarin, T. A. to Chief Engineer, P. W. D. (B&r ). , Rajasthan, Jaipur. "
If one were to contrast the language of this D. O. with Annexure V, it will be evident that the D. O. does not recite that on the second occasion it was the Government who considered the matter, it appears that on the letter of the Chief Engineer to which I will be making a reference in a moment, the Deputy Secretary made certain observations showing his agreement with the Chief Engineer that there was no question of reemployment of the petitioner unless and until he had been permitted by the Chief Engineer to withdraw his option and he added that what was desired by him was that it was the Chief Engineer who was to take decision on his representation in any manner he liked, because he was alone competent enough to deal with his representation. The letter of the Chief Engineer to which the D. O. of the Deputy Secretary was a reply was as follows : "the Chief Engineer, P. W. D. B&r ). , Rajasthan, Jaipur. Secretary to the Government, Public Works Department, Rajasthan, Jaipur. No. Esstt/ce/cell-I-397/d-3669 Dated 13th Feb. , '67. Sub-Appeal of Shri C. D. Masih, Superintendent, Chief Engineer's Office, P. W. D. (B & R ). , Rajasthan, Jaipur at present on leave preparatory to retirement. Ref: - Your letter No. F. 7 (205) PW/66 dated the 25th January, 1967. Sir, Shri C. D. Masih applied to the Chief Engineer for premature retirement vide his application dated 18-7-66 under Rule 244 (1) of Rajasthan Service Rules. Thereafter he was asked personally and in writing by my Technical Assistant to reconsider his request but he insisted for retirement and accordingly his retirement order was issued by this office on 27-8-66. He was also sanctioned 120 days leave preparatory to retirement as desired by him. Now the Accountant General has issued his P. P. O No 20658 (R) and G. P. O. 21921 (R) vide his letter No. PRIV/5659-62 dated 29-1-67. The retirement order of Shri Masih was issued by this office on his request in writing. Later on if he was desirous of continuing in the Department he should have requested the undersigned in continuation of his previous application for seeking withdrawal of his optional retirement instead of requesting the Government. As this has not been done by him and also the Accountant General has issued his P. P. O. and C. P. O. . the question of continuing Shri Masih in the Department on the post of Superintendent Grade-I at this late stage does not arise. Yours faithfully, Sd/- (B. D. Mathur) 10-2-67 Chief Enginear, (B & R ). ," It appears that in his letter the Chief Engineer was carried away too much by the thought that instead of requesting the Chief Engineer for withdrawal of the optional retirement the petitioner had approached the Government. The Chief Engineer in the circumstances considered that as this had not been done by him and also as the Accountant General had issued his "p. P. O. " and G. P. O. " the question of continuing Shri C. D. Masih on the post of Superintendent Grade-I at this late stage did not arise.
If what was conveyed by Annexure V was a Government order, then I have not been able to appreciate the language in which the Chief Engineer has chosen to address the Government To put the matter mildly what the Chief Engineer has written in the second para of his letter smacks of impertinence. Since the matter was within the administrative sphere, as already observed by me, just as it was open to the Chief Engineer to allow the petitioner to withdraw his option for retirement, it was no less open to the Government as the highest authority on the executive side to permit the petitioner to withdraw his option for retirement. The Chief Engineer was not justified in making too much out of the petitioner not approaching the Chief Engineer in the first instance as he thought. Apart from this the position is not even factually correct, because it is evident that the petitioner wrote a letter on 31-12-66 to the Chief Engineer in the first instance which he kept pending in anticipation of Government decision about the petitioner's so called appeal. The petitioner had only endorsed a copy of that letter to the Chief Engineer to the Government and perusal of Annexure V shows that it was a letter of the petitioner dated 31-12-65 that had been taken note of by the Government.
Learned Deputy Government Advocate then submitted that the writer of the letter Annexure V was the Deputy Secretary himself and likewise he was the writer of the D. O. Annexure R. 6 and, therefore, whatever interpretation had been placed by the Deputy Secretary should be accepted. I am afraid, I am unable to accept this contention which is so widely put. It is true, where the matter is not clear enough the view regarding the meaning of a letter taken by the writer of that letter may be taken to be correct in the first instance. But letter Annexure V, in my view, does not suffer from any ambiguity. If the Deputy Secretary has just meekly accepted the observations of the Chief Engineer in his letter to the Government then it does not bring any credit to him. As to who deals with the Government business in the Secretariat is an internal matter normally governed by the business rules, but the outward form of Annexure V leaves no doubt in my mind that this was intended to be a Government order and has to be accepted as such. As I have already observed, it starts with the words" I am directed" and in the body thereof it is mentioned that the Government have considered the matter and have taken note of the withdrawal of option for retirement by the petitioner. The D. O. of the Deputy Secretary cannot be placed at par with Annexure V. Thus both for the reason that the D. O. Annexure. R. 6. cannot be placed at par with Annexure V as regards it being a Government order and also taking the plain meaning of Annexure V, I am satisfied that it were the Government who ordered that the petitioner be allowed to continue in service and be sanctioned leave. The Government order could have been changed only if it were found to be contrary to any rule of law or that it had been vitiated on account of any fraud or mis-representation. This is not so.
Lastly, I may deal with the submission about the use of expression "may" in Annexure V. This is in usual form as a Government letter and one acquainted with the form of Government order would have no difficulty in coming to the conclusion that it was a Government order in unmistakable form allowing the petitioner to continue in service. A person is continued in service only when he is already in service. Therefore, it appears that as a result of the Government deciding the petitioner's case as a whole, they came to the conclusion that he may be allowed to continue in service. The Cheif Engineer has, in may view, no business to set his face against the clear orders of the Government. If he had to point out any mistake or inaccuracies or illegalities therein, he could have done so in temperate, courteous and respectful manner. Now, what is the effect of Annexure V. In my view, it clearly results in doing away with the effect of the earlier letter of the petitioner giving option for retirement and the order issued by the Chief Engineer for retirement. Once the petitioner can be said to have re-acquired the status of a Government servant by virtue of Annexure V, then he acquires a right to remain in service till he is made to quit his office in accordance with the Rules. That being so, letter Annexure VI or the subsequent orders issued by the Chief Engineer and his refusal to take back the petitioner in service are of no avail.
For these reasons I allow this writ petition and order that by virtue of the Government order conveyed in their letter No. 7 (205) PW/66, dated 25-1-67, Annexure V on record, the respondents shall treat the petitioner to be in Government service and permit him to resume his duties on the substantive post. The petitioner will get his costs of this writ petition from the respondents. .
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