BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE appellant is in service of the State of Rajasthan and had given a notice in writing to the appointing authority to seek voluntary retirement from service w. e. f. 30. 04. 1997. Notice was given on 4th Nov. 1996. Before the date with effect from which the retirement was to be effected as per notice he withdrew his notice by communication dated 23. 04. 1997. These facts are not in dispute. However, the petitioner was not allowed to resume the duties in view of the fact that before the expiry of 3 months from the date of receipt of notice the respondents have accepted the request of petitioner for voluntarily retirement. According to the respondents, once they accepted the offer of voluntarily retirement given under Rule 244 of the Rajasthan Service Rules, the option to retire became complete, thereafter, no withdrawal was permissible. On the other hand, the learned counsel for the petitioner had urged that it is open for him to withdraw the retirement notice before the retirement become affective as per notice or under the Rules. He also placed reliance on the decision of the Supreme Court reported in the case of Balram Gupta vs. Union of India and another (1) and Shambhu Murari Sinha vs. Project and Development India and Anr. However, the plea of the respondents found favour with the learned Single Judge and the writ petition was dismissed by the order under appeal. The respective contentions have been reiterated before us in this appeal. It will be proper to draw attention to Rule 244 before proceeding further:- "244. (1) Optional Retirement on Completion of 20 years qualifying service.- (a) A Government servant may, after giving at least 3 month's previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice. Provided that it shall be open to the Appointing Authority to with-hold permission to retire a Government servant: (i) who is under suspension; (ii) in whose case disciplinary proceedings are pending or contemplated for the imposition of a major penalty and the disciplinary authority having regard to the circumstances of the case is of the view that such disciplinary proceedings might result in imposition of the penalty of removal or dismissal from service; (iii) in whose case prosecution is contemplated or may have been launched in a court of law; (b) A Government servant who has given notice for seeking retirement under clause (a) of this sub-rule, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice automatically unless an order in writing to the contrary has been issued by the Competent Authority and served upon the Government servant before the expiry of the period of the notice. (c) If a Government servant seeks retirement under this sub-rule while he is on leave not due, without returning to duty, the retirement shall take effect from the date of commencement of the leave not due and the leave salary paid in respect of such leave shall be recovered from him. (d) A Government servant who seeks voluntary retirement under Clause (a) of this sub-rule shall be entitled to a weightage of a 5 years qualifying service which shall be given as an addition to the qualifying service actually rendered by him. The grant of weightage upto 5 years shall, however, be subject to the following conditions:- In respect of Government servants governed by pension rules:- (i ). . . . . . . . . . (ii ). . . . . . . . . (iii ). . . . . . . . . (iv ). . . . . . . . . . (v ). . . . . . . . . . (vi) The benefit of five years, notional qualifying service mentioned in this clause shall not be admissible to a Government servant who is retired under sub-rule (2) of this Rule. (e) A Government servant who gives notice of voluntary retirement under clause (a) of sub-rule (1) shall satisfy himself by means of a reference to the appointing authority who is competent to retire him to the effect that he has, in fact, completed 20 years qualifying services for pension. (f) A Government servant may, with the approval of the Appointing Authority, withdraw the notice given under clause (a) of the sub-rule period he request for such withdrawal is made before the expiry of the notice. (g) The authority competent to retire a Government servant may, in deserving cases, accept the notice contemplated under clause (a) of this sub-rule for a period of less than 3 months with the concurrence of the Government in the Finance Department. (h) Deleted. "
(3.) THE perusal of the aforesaid provision makes it clear that a Government servant who has completed 20 years of qualifying service or who has attained the age of 45 years and desires to seek voluntary retirement, he is required to serve a notice of at least 3 month before the intended date of voluntarily retirement but it is also open for the incumbent to chose any other date after expiry of 3 months of notice, for the effective date of seeking retirement which is indicative of the fact that a voluntarily retirement notice does not become effective on the expiry of 3 months but it become effective with effect from the date given in the notice which shall not be less than three months before the date of notice, so also acceptance of such request is not a necessary concomitant of voluntary retirement. Power of the Government is couched in negative. It has power to withhold permission only in the conditions envisaged in proviso. Else such permission does not require any positive act. Clause (b) makes it clear that on the part of the Government no acceptance or communication of such acceptance is required to make the notice of retirement effective with effect from the date mentioned in the notice, but such permission is presumed unless decision contrary to that has been communicated before the intended date of retirement. It is clear from the fact that in case no order in writing to the contrary is issued by the competent authority and is served on the incumbent before the date given in the notice, or if no date is given in notice on expiry of three months retirement becomes effective in terms of the notice automatically. THErefore, the scheme of the Rule is clear that ordinarily the retirement as a result of notice u/sec. 244 (1) becomes effective only w. e. f. the date as stated in the notice which in no case be 3 months before the date of notice or in case no such date is given in the notice, no expiry of three months from the notice only, whether permission/ acceptance is conveyed or not. No power is vested in the State to prepone the effective date of retirement, by conveying its acceptance earlier, but its power is only restricted to stall the intended retirement by taking positive act of conveying its decision to refuse to accept the representation of voluntary retirement that too only in the contingencies as envisaged in proviso. Else acceptance is presumed in favour of the retirement unless any notice contrary is conveyed to the incumbent prior to the expiry of period of notice. In the present case, no order in writing has been issued to contrary by competent authority before expiry of the date mentioned in notice denying the retirement. The acceptance of notice being not an essential condition of making retirement effective, the notice of retirement could becomes effective only with effect from the date mentioned in the notice viz. 30. 4. 1997. That being so it was open for the incumbent to withdraw from the notice any time before the date the retirement could becomes effective. Sub-Rule (6) is conclusive in this regard. It clearly show that any person who has given notice of retirement can withdraw the same before the expiry of three months or in case any date has been given in the notice before the expiry of such date. The option of incumbent to withdraw from his notice can not be inhibited with acceptance of such notice by the employer. The right of an employee to withdraw from the request of seeking retirement is not subject to be made before his request is accepted, but is made subject only to one condition viz. before the retirement becomes effective. ;