GARG, J. - (1.) THIS writ petition under Art. 226 of the Constitution of India has been filed by the petitioner on 14. 12. 2000 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order Annex. 5 dt. 22. 11. 2000 by which on the application of the petitioner, the petitioner was voluntarily retired with effect from 30. 11. 2000, be quashed and set aside with all consequential benefits.
(2.) THE case of the petitioner as put forward by him in this writ petition is as follows- THE petitioner was initially appointed on 29. 11. 1973 on the post of Survey Luskar in the Department of Irrigation. On account of abolition of the post of Survey Luskar, the petitioner was absorbed in the Irrigation Department in the year 1975 on the post of Class IV employee. THEreafter, the petitioner was promoted on the post of Lower Division Clerk on 3. 11. 1988. THEreafter, the petitioner was transferred from Irrigation Department to the Department of Finance on 8. 4. 1993. THEreafter, an application dated 11. 9. 2000 was submitted by the petitioner seeking voluntary retirement with effect from 30. 11. 2000. A copy of the said application dated 11. 9. 2000 is marked as Annex. P/1. THE said application of the petitioner was forwarded by the respondent no. 2 Assistant Director, State Insurance and General Provident Fund Department, Banswara to the respondent no. 2 Director, State Insurance and General Provident Fund Department, Collectorate, Jaipur vide letter dated 14. 9. 2000, a copy of which is marked as Annex. P/2. THE further case of the petitioner is that he submitted another application dated 16. 9. 2000 to the respondent no. 2 Director for withdrawal and cancellation of his earlier application dated 11. 9. 2000 (Annex. P/1) seeking voluntary retirement w. e. f. 30. 11. 2000. A copy of the said application dated 16. 9. 2000 is marked as Annex. P/3. Apart from this, the petitioner also submitted a copy of the application dated 16. 9. 2000 (Annex. P/3) for withdrawal and cancellation of his earlier application dated 11. 9. 2000 (Annex. P/1) seeking voluntary retirement w. e. f. 30. 11. 2000 to the respondent no. 3 Assistant Director for forwarding the same to the respondent no. 2 Director. THE said application of the petitioner dated 16. 9. 2000 (Annex. P/3) for withdrawal of his earlier application dated 11. 9. 2000 (Annex. P/1) was forwarded by the respondent no. 3 Assistant Director to the respondent no. 2 Director through letter dated 29. 9. 2000 (Annex. P/4 ). But, the respondent no. 2 Director through impugned order Annex. P/5 dated 22. 11. 2000 ordered voluntary retirement of the petitioner with effect from 30. 11. 2000. In this writ petition, the order Annex. P/5 dated 22. 11. 2000 has been challenged by the petitioner on various grounds and the main ground of challenge is that tendering of voluntary retirement and resignation can be withdrawn before it can be accepted by the competent authority and since in the present case through application dated 16. 9. 2000 (Annex. P/3), the petitioner had already sought withdrawal of his earlier application Annex. P/1 dated 11. 9. 2000 seeking voluntary retirement w. e. f. 30. 11. 2000, therefore, the impugned order Annex. /5 dated 22. 11. 2000 is wholly illegal and without jurisdiction and the same should be set aside. It was further submitted by the petitioner that the date when the impugned order Annex. P/5 was passed, there was no resignation left to be acted upon by the respondents and therefore, from this point of view also, the impugned order Annex. P/5 cannot be sustained and it should be set aside. A reply to the writ petition was filed by the respondents and in that reply, it was submitted by the respondents that the impugned order Annex. P/5 passed by the respondent No. 2 Director is legal and within the competence of the respondent No. 2 and thus, no interference is called for with the same. Hence, the writ petition filed by the petitioner be dismissed. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the material available on record. So far as the legal position with respect to tendering or withdrawing resignation is concerned, for that the authority of the Hon'ble Supreme Court in Union of India vs. Gopal Chandra Misra (1) may be referred to wherein the Hon'ble Supreme Court laid down following proposition:- " The general principle regarding resignation is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a judge of a High Court, who is a constitutional functionary and under proviso (a) to Art. 217 (1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in prasenti, the resignation terminates his office tenure forthwith and cannot, therefore, be withdrawn or revoked thereafter. But if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it because the constitution does not bar such withdrawal. " In Balram Gupta vs. Union of India & Anr. (2), the Hon'ble Supreme Court observed that notice of voluntary retirement can be withdrawn at any time before retirement becomes effective. In that case, the Hon'ble Supreme Court further held that notice of voluntary retirement stands on par with letter of resignation. In this respect, the authority of the Hon'ble Supreme court in Punjab National Bank vs. P. K. Mittal (3) may further be referred to.
(3.) IN latest judgment dated 13. 3. 2002 in the case of Shambhu Murari Sinha vs. Project and Development INdia Ltd. (4), the Hon'ble Supreme court held that in the absence of a legal, contractual or constitutional bar, a `prospective' resignation can be withdrawn at any time before it becomes effective' and it, becomes effective when it operates to terminate the employment or the office tenure of the resignor. Thus, it is clear that a prospective resignation/voluntary retirement can be withdrawn at any time before it becomes effective. In the present case, the petitioner submitted application dated 11. 9. 2000 Annex. P/1 seeking voluntary retirement with effect from 30. 11. 2000 and the said application Annex. P/1 was withdrawn by the petitioner through another application dated 16. 9. 2000 (Annex. P/3) and the said application of the petitioner Annex. P/3 was forwarded by the respondent no. 3 Assistant Director to the respondent No. 2 Director vide letter Annex. P/4 dated 29. 9. 2000 and the impugned order Annex. P/5 was passed on 22. 11. 2000 meaning thereby before passing the impugned order Annex. P/5 dated 22. 11. 2000, the petitioner through application dated 16. 9. 2000 (Annex. P/3) had already withdrawn his application Annex. P/1 dated 11. 9. 2000 seeking voluntary retirement w. e. f. 30. 11. 2000. ;