Mohammad Rafiq, J. - (1.) THIS writ petition has been preferred by the petitioner assailing the order dated 26/9/2011 (Ann. 5) whereby the respondents have despite his prayer for review of the notice of voluntary retirement has retired him from service w.e.f. 1/10/2011. Factual matrix of the case is that petitioner was appointed with the respondent -department on the post of Lower Division Clerk on 21/5/1982. Petitioner was posted in the office of Sub Divisional Officer, District Sawai madhopur. It was after 29 years of service that one Shri Ishwar Singh Rathore was posted in August 2011 as Sub Divisional Officer, District Sawai madhopur. According to the petitioner, S.D.O. has required petitioner to discharge some additional work. He wanted to stay of petitioner in the office till upto 10.00 p.m., whereas other officers were permitted to go after office hours. The S.D.O. even compelled petitioner to work on Holidays. Petitioner could not carry burden of these heavy duties and due to these circumstances and being harassed by his superior, he submitted application on 19/9/2011 (Ann. 3) out of frustration seeking voluntary retirement w.e.f. 1/10/2011 but after realising his mistake, he immediately submitted another application on 26/9/2011 (Ann. 4) for withdrawal of that application dated 19/9/2011 (Ann. 3) through proper channel requesting not to retire him from service. Immediately on receipt of the application dated 19/9/2011 (Ann. 3) seeking voluntary retirement, the respondents passed the order dated 26/9/2011 (Ann. 5) voluntarily retiring petitioner w.e.f. 1/10/2011 without considering his subsequent application 26/9/2011 (Ann. 4) for withdrawal of that application dated 19/9/2011 (Ann. 3).
(2.) LEARNED counsel for the petitioner argued that petitioner specifically mentioned in the application dated 26/9/2011 (Ann. 4) that he submitted earlier application dated 19/9/2011 (Ann. 3) seeking voluntary retirement out of frustration only due to harassment being made by the S.D.O. Sawai madhopur. When he realised his mistake, he immediately submitted another application on 26/9/2011 (Ann. 4) for withdrawal of voluntary retirement. He further mentioned in the said application that he has large family maintain and huge family responsibilities. Learned counsel submitted that though petitioner submitted application seeking voluntary retirement on 19/9/2011 (Ann. 3) in accordance with Rule 50(1) of the Rajasthan Civil Services (Pension) Rules, 1996 (for short, the "Rules of 1996") but he immediately submitted another application on 26/9/2011 (Ann. 4), which the respondents received the same well in time before accepting his earlier application 19/9/2011 (Ann. 3) but the respondents made him voluntarily retired from service w.e.f. 1/10/2011 vide order dated 26/9/2011 (Ann. 5), which is absolutely illegal. It is settled law that employee has locus standi to withdraw the proposal before date of retirement is reached. In support of his argument, learned counsel for petitioner has placed reliance upon the judgment of Supreme Court in J.N. Srivastava vs. Union of India & Anr., : AIR 1999 SC 1571, Division Bench judgment of this Court in Devi Dayal Gupta vs. Sambhar Salts Limited & Ors., DBSAW No. 1055/2007 decided on 2/9/2008 & Single Bench judgment of this Court in Rajendra Mishra vs. State of Rajasthan & Ors., SBCWP No. 4351/2008 decided on 11/10/2011. Per contra, Shri Dinesh Yadav, learned Additional Advocate General opposed the writ petition and cited the judgment in rebuttal of constitutional bench judgment of Supreme Court in the case of Union of India & Ors. vs. Gopal Chandra Misra & Ors., : (1978) 2 SCC 301 and argued that once resignation has been tendered, it cannot be withdrawn. He has also relied on another Supreme Court judgment in New India Assurance Company Limited vs. Raghuvir Singh Narang & Anr., : (2010) 5 SCC 335 and argued that voluntary retirement application of the petitioner was accepted at his request therefore, he was estopped from withdrawing his earlier request seeking voluntary retirement. By the time, subsequent request of the petitioner was received seeking withdrawal of voluntary retirement, his earlier application seeking voluntary retirement had already been acted upon therefore his voluntary retirement had become finalised.
(3.) I have heard learned counsel for the parties, gone through the material available on record and scanned the case law cited on the subject.;