SAXENA, J. - (1.) PETITIONER Smt. Radha Devi was appointed as Assistant Teacher w. e. f 2. 9. 1957. While she was working as IIIrd Grade Teacher in the Govt. Girls Secondary School, Sardar Shahar (Churu) in the year 1981, she sought her retirement on the ground that she had become permanently incapacitated for the public service in terms of rules 228 & 229 (2) of the Rajasthan Service Rules, 1951 (in short, the R. S. R. ). She was duly examined by the Civil Assistant Surgeon, Sardar Shahar, who issued a certificate of incapacity for service in her favour. Thereupon, the District Education Officer (Female Institution), Bikaner respondent No. 4 by order dated 26. 3. 1981 (Annex. 2) retired the petitioner from service under rules 228 & 229 (2) of the R. S. R. w. e. f. 31. 3. 1981 after-noon and accordingly she was relieved by the concerned Head Mistress. PETITIONER's pension case was transmitted for grant of sanction to the Director of Pension, respondent No. 2. However, respondent No. 2 raised certain objections with regard to the medical certificate issued by the Civil Assistant Surgeon, Government Hospital, Sardar Shahar, and after a long lapse of period of five years and nine months, the petitioner was directed to appear before a Medical Board. On 15. 11. 1986, the Medical Board examined her. The Chief Medical & Health Officer, Ratangarh vide his letter dated 15. 1. 1987 (Annex. 3) informed the Director of Pension that the petitioner was not suffering from any disease and as such, she was not incapacitated in any manner. Thereupon, the Director of Pension by his letter dated 30. 7. 1987 (Annex. 4) returned petitioner's pension papers to the District Education Officer (Female Institution), Bikaner with the remarks that her retirement order dated 26. 3. 1981 was illegal and against rule 228 of the R. S. R. and that she could not be treated to have retired from the Government service. The respondents No. 3 & 4 neither rescinded petitioner's retirement order dated 26. 3. 1981 (Annex. 2), nor issued any order for her posting. Thereupon, the petitioner submitted an application dated 8. 7. 1987 (Annex. 5) to the Dy. Director (Women) Education Department, Churu seeking voluntary retirement under rule 244 (1) of the R. S. R. on the ground that she was neither taken back on duty nor was being paid her pension. The said Dy. Director vide her letter dated 7. 6. 1989 (Annex. 6) sent a factual report to respondent No. 3 (Director of Primary & Secondary Education for Rajasthan, Bikaner) and sought his advice as to whether petitioner be taken back on duty after her retirement on 31. 3. 1981 or orders for petitioner's voluntary retirement under rule 244 (1) of the R. S. R. be issued w. e. f. 31. 3. 1981. The said Dy. Director also sent the pension case along with the service record of the petitioner to respondent No. 3. A copy of Annexure-6 was also sent to the petitioner. Thereupon, the petitioner withdrew her application for voluntary retirement vide her letter dated 22. 6. 1989 (Annex. 7) and prayed that she be taken back in service and paid her arrears of salary. The petitioner by means of this writ petition has, therefore, prayed that the respondents be directed to take her back in service and grant her all consequential benefits by treating her to have remained in service from 1. 4. 1981 or in the alternative to pay arrears of her pension benefits from 1. 4. 1981 with interest at the rate of 18% per annum and to continue to regularly pay her due pension.
(2.) The respondents in their reply have admitted the factual aspects of this case, but pleaded that the petitioner by concealing real facts had sought her retirement on medical ground, which was wrongly accepted by respondent No. 3 , that since the petitioner was to be charge-sheeted, she was directed to withdraw her application for voluntary retirement and that the petitioner has not come with clean hands and as such she is not entitled to get any relief. I have heard the learned counsel for the petitioner and the learned Deputy Government Advocate for respondents and perused the relevant record. Admittedly, till this date, respondents No. l, 3 & 4 have neither rescinded the petitioner's retirement order Annex. 2, nor have issued any order for taking her back in service and post her any where. Thus, petitioner's retirement order Annex. 2 is still intact and she cannot be treated in service or deemed to have been in service since 1. 4. 1981. (4) The petitioner's application under rules 228 & 229 (2) R. S. R. for retirement on medical grounds was duly accepted by the competent authority on the basis of the medical certificate issued by a competent medical officer. If the said medical certificate was wrong and illegally issued, then the petitioner ought to have been asked to appear before the Medical Board immediately. But it appear that the respondents did not act immediately and rather slumbered over the matter for more than five years. Therefore, merely because in the year 1987 i. e. after lapse of a period of more than five years and nine months of her retirement from service, the petitioner was medically found fit by the Medical Board to discharge her duties as a teacher, it cannot now be conclusively held that in the year 1981, she was not bodily or mentally incapacitated for the public service or for the particular branch of it to which she belonged. More over, this possibility also cannot be ruled out that after such a long lapse of period was cured from the bodily or mental infirmity, which had incapacitated her from discharging services as a teacher in the year 1981. On the other hand the passage of time itself has made the retirement of the petitioner under Rules 228 and 229 (2) a fait accomplish. If the petitioner's request for retirement on medical grounds would have been declined in the year 1981 immediately, she would have continued in the service and not made to retire. Hence now this position cannot be altered merely because a different opinion has been precured after a period of more than five years and nine months. Such opinion cannot now operate retrospectively keeping in view the principle of equitable estoppel. Therefore, to my mind the respondents are now barred from taking a position that the petitioner could not have been given retirement on medical grounds and that she was not entitled for invalid pension. Since the retirement order of the petitioner Annex. 2 is still intact and the same has neither been set aside nor rescinded nor withdrawn by the competent authority, the Director of Pension has no authority to withheld her pension. The Director, Pension also cannot sit as an appellate authority on the order passed by a competent authority retiring the petitioner. More over it is inconceivable that without setting aside the retirement order Annex. 2, and without taking the petitioner in service, she can be charge sheeted for an alleged mis-conduct. If the petitioner is deemed to be in service, then she will be entitled for her salary and all consequential benefits since 1. 4. 1981 and in such circumstances, the respondent No. 1 will be saddled with a greater financial liability. Since the petitioner was not immediately asked to appear before the Medical Board, it canno be presumed that she had concealed the real facts and had sought her retirement mala-fide and has not come before this Court with clean hands. Hence, keeping in view all these peculiar facts and circumstances of this case, factors of equity and fair justice demand that the petitioner should be allowed invalid pension in term of rule 228 R. S. R.
(3.) THE up-shot of the above discussion is that this writ petition succeeds and respondents are directed to pay the petitioner her due arrears of invalid pension under rule 228 of the R. S. R. w. e. f. 14. 4. 1981 with interest @ Rs. 12% per annum and to continue to pay such pension to her month by month as per rules. Her arrears should be paid within three months. No order as to costs. .;