MUSHTAQ AHMAD QURESHI Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner was working as Librarian in the District library at Raisen. By an application dated 16-7-1976 (Annexure-1) addressed to the Director of Public Instructions ( Respondent No 2 ), the petitioner requested for permission to retire from service with effect from 1st February 1977 on the ground that he had completed twenty years qualifying service and that he was not interested in continuing any longer in service. Thereafter the petitioner sent another application dated 20-12-1976 (Annexure-2) to the Director of Public Instructions by which he modified his earlier request and sought retirement with effect from 5th June 1977. The petitioner received no communication in reply from the respondents and he continued to remain in service even after 5th June 1977. The petitioner then sent another communication dated 1-7-1977 (Annexure-4) to the Director of Public Instructions stating clearly that the requested date of retirement i. e. 5th June 1977 having passed and no reply having been received by the petitioner, his earlier request for retirement had lapsed and become ineffective. He further added therein that he did not now want to seek early retirement and had decided to continue in service. Curiously enough, thereafter, by order No. Lib/d/77 /488 dated 11-7-1977 (Annexure-5), the petitioner was retired retrospectively with effect from 1-2-1977 under rule 42 of the Madhya Pradesh Civil Services (Pension)Rules, 1976, even though the petitioner was admittedly continuing in service after that date. It is this order (Annexure-5) of compulsory retirement which is challenged by the petitioner under Article 226 of the Constitution,

(2.) LEARNED counsel for the petitioner urges that the petitioner's offer of retirement having lapsed when it was not accepted upto 5th June 1977, the date of retirement specified by the petitioner, nothing remained thereafter to enable its acceptance and retirement of the petitioner on the date of the impugned order (Annexure-5), Alternatively, it is also urged that in any event that order could not be made retrospective when the petitioner had admittedly continued in service after 1st February 1977, the date from which the order was made effective. Learned Government Advocate does not dispute that the impugned order could not be made retrospective. However, he places reliance on sub-rule (2) of Rule 42 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 to contend that there was no power left with the petitioner to withdraw his offer of retirement once it was made, and that it was open to the Government to accept the same at any time, even after the date of intended retirement specified by the petitioner in his offer had expired. The decision in this case depends on the construction of sub-rule (2) of Rule 42. Having heard learned counsel, we are satisfied that the primary submission of the petitioner must be accepted and this petition allowed.

(3.) RULE 42 is as under :-