- (1.) HEARD learned counsel for the parties.
(2.) IN this case on 10 -9 -2002 one month's time was granted to the learned Standing Counsel, but counter affidavit has not yet been filed. Hence we have treated the allegations in the petition to be correct. The petitioner was appointed as Executive Engineer in U.P., P.W.D. From 7 -8 -1997 petitioner was on deputation to the Government of Botswna. On 4 -12 -2000 petitioner submitted a letter dated 2 -12 -2000, copy of which is Annexure -15 to the petition, in which he prayed that he should be allowed to take voluntary retirement under the Amended Fundamental Rule 56 of the Financial Handbook. No order was passed on this application. Hence the petitioner filed a writ petition, being writ petition No. 40937 of 2001, which was disposed off by this Court on 5 -12 -2001 with a direction to the authority concerned to decide the petitioner's representation praying for voluntary retirement preferably within six weeks. By the impugned order dated 28 -11 -2001 the petitioner's application had been rejected. Hence this petition. Fundamental Rule 56 (c) and (d) read as follows: - (c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty -five years or after he has completed qualifying service of twenty years. (d) The period of such notice shall be three months: Provided - (i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement. (ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice: Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted.
(3.) A perusal of impugned order shows that the petitioner's application had been rejected on the ground that a vigilance enquiry is pending.;