K. Kannan, J. - (1.) The petitioner challenges the order of 27.02.2008, which was issued subsequent to a disposal of the writ petition in CWP No.5350 of 2005. There is also a challenge to an order issued earlier on 07/08.02.2005 retiring the petitioner from service under Regulation 22(2) of the FCI (Staff) Regulations, 1971.
(2.) The learned counsel appearing on behalf of the petitioner would contend that he had given the request for voluntary retirement on 25.09.2004 and since no order accepting the offer of retirement was made, he ought to have been treated as voluntarily retired on the expiry of 3 months. The counsel would rely on a judgment of Hon'ble the Supreme Court in State of Haryana and others v. S.K. Singhal, 1999(2) RSJ 532 that held dealing with the Punjab Civil Services Rules, Volume II, Rule 5.32 B that sub-clause (2) made the provision for voluntary retirement giving 3 months notice. The counsel would contend that the regulation provided in FCI contained similar provisions and the meaning given to the expression 'notice to retire' as interpreted by Hon'ble the Supreme Court in the above case, must be applied to FCI Regulations also. Consequently, the request contemplated must mean that on the expiry of the period of 3 months, the retirement shall become effective from the date of expiry of the said period. This contention is contested by the counsel appearing on behalf of the respondents, by urging that the petitioner's request for voluntary retirement came at a time when there were already proposals for compulsorily retiring him since 05.02.2003 and an advisory had also been issued to him on 20.02.2003. The petitioner had given his request for voluntary retirement only in a situation where he was faced with an immediate prospect of compulsory retirement. His request was rejected on 16.11.2004 and an order retiring from service was issued on 074/08.02.2005 under Regulation 22(2) of the FCI (Staff) Regulations, 1971 and an amount of Rs.span 26,267/- had been paid to him as the benefits due at that time. It is, therefore, contended by the counsel for the petitioner that the writ petition challenging the order passed on 27.02.2008 cannot be sustained and the earlier order passed on 08.02.2005 cannot also be quashed now since the petitioner failed to obtain a favourable order even at the time when he had earlier approached the Court in CWP No.5350 of 2005.
(3.) If the petitioner must treat himself as having been voluntarily retired by the fact that no communication was made within a period of 3 months from the date of his application and consequently the order passed on 07.02.2005 was not valid, he should have secured the relief of quashing the order of retirement even in the writ petition that he had already filed. If the Court was granting the relief to the petitioner only to allow for communication of the order passed on 16.11.2004, by implication it would mean that the Court had not given the benefit of quashment of the order passed on 07/08.02.2005. What the petitioner could not obtain in an earlier petition or what he did not attempt to secure, which he ought and might have secured would constitute res judicata between the same parties. Consequently, the relief seeking for quashing the order dated 07/08.02.2005 cannot survive favourable consideration to the petitioner.;