BALI, J. - (1.) SMT. Sharda Pareek, Assistant Secretary/assistant Director through present petition filed by her under Article 226 of the Constitution of India takes exception to order dated 15. 1. 2005 by which she has been treated to have retired with effect from 20. 1. 2005. She seeks quashing of the order aforesaid and as a consequence thereof, to be treated in continuous service with all consequential benefits. Brief facts on which the reliefs, as spelled out above, are sought to rest, reveal that petitioner was initially appointed in the Board of Secondary Education as Lecturer - School Teacher by direct recruitment. She was promoted on the post of Assistant Secretary in 1994. Seniority list (Anx. 1) of Assistant Secretary/assistant Director was issued on 7. 4. 1998. It is the case of petitioner that one P. C. Mahawar, who was much junior to her, was given regular appointment on the post of Assistant Secretary. Once again on 20. 10. 2004, persons junior to her were given promotion on the post of Dy. Secretary/dy. Director whereas the petitioner was left over. Constrained, she addressed a letter dated 21. 10. 2004 to the Chairman protesting that her juniors had been given promotion whereas she had been ignored. She also mentioned in the letter aforesaid that in protest of her being ignored for promotion, she be allowed to submit her resignation w. e. f. 31. 10. 2004. In response to the letter aforesaid, respondents vide letter dated 20. 11. 2004 (Anx. 3) enquired from her whether she wanted to resign or wanted to remain on sanctioned leave. She responded to the information sought from her, vide letter dated 27. 11. 2004 (Anx. 4) stating therein that she be treated on leave up to 10. 12. 2004. It is her case that she was verbally informed that her case was being considered for promotion on the post of Dy. Director/dy. Secretary. She then joined her duties on 18. 12. 2004. On 15. 1. 2005, however, the respondents informed her that letter dated 21. 10. 2004 written by her had since been accepted and she would be relieved from her duties with effect from 20. 1. 2005 treating her as retired. On 17. 1. 2005, she addressed a letter to the respondents stating that the letter of resignation stood withdrawn after she had intimated about her leave. She sent another letter by hand/fax as also registered post dated 19. 1. 2005 (Anx. 6) withdrawing her resignation. Letter dated 19. 1. 2005 (Anx. 6) concededly sent by the petitioner to the Secretary, Board of Secondary Education, Rajasthan, Ajmer reads as follows: To The Secretary, Board of Secondary Education, Rajasthan, Ajmer. Chairman Board of Secondary Education, Rajasthan, Ajmer. Ref. : Office order Sanstha. /2005/09 dated 15. 1. 2005 received on 17. 1. 2005. Sir, On receipt of your abovecited office order, I immediately intimated to your goodself on 17. 1. 2005 itself that I have withdrawn my voluntary retirement letter dated 21. 10. 2004 within duration of notice period. Still I have not been intimated anything about my retirement withdrawal letter. I again inform you vide this fax/registered letter/by personal delivery letter that my letter dated 21. 10. 2004 by treated as withdrawn and cancelled. Dated 19. 1. 2005sd/- Mrs. Sharda Pareek Assistant Director Board of Secondary Education, Ajmer. "
(2.) PETITIONER is then stated to have received order dated 27. 1. 2005 (Anx. 10) whereby she was informed that no further action was to be taken on her letters dated 17. 1. 2005, 19. 1. 2005 and 23. 1. 2005. The motion bench vide orders dated 6. 5. 2005 while issuing notice passed the following order: " Counsel for the petitioner submits that he has already informed the counsel for the respondent/caveator about the matter and despite information, nobody has appeared and rely has also not been filed. Heard learned counsel for the petitioner on admission. Admit. Issue notice of the writ petition as well as of the stay petition. In the meanwhile, operation of the order dated 15. 1. 2005 (Annex. 5) and Annex. 10 dated 27. 01. 2005 shall remain stayed and respondents are directed to allow the petitioner to work on the post, which she was holding prior to passing of the order dated 15. 1. 2005 till further orders. " In response to the notice issued by this Court, respondents No. 1 and 2 have filed reply. There is no need at all to give pleadings mentioned in the written statement as the factual position as has been mentioned in the writ petition has not been disputed during the course of arguments. Learned counsel appearing for the parties are ad idem that on admitted facts as fully detailed above, the only question that needs adjudication by this Court is as to whether letter (Anx. 6) dated 19. 1. 2005 could be treated as a request made on behalf of the petitioner for withdrawing her resignation prior to the effective date of acceptance of the resignation of the petitioner and thus once the respondents had received letter (Anx. 6), they could still persist with communication dated 15. 1. 2005 accepting resignation of the petitioner said to have been sent on 21. 10. 2004. Whereas counsel for the petitioner contends that the letter (Anx. 6) had been sent which was concededly received as well by the respondents before 20. 1. 2005, resignation submitted by the petitioner on 21. 10. 2004 automatically stood withdrawn and therefore, order (Anx. 5) accepting resignation of the petitioner vide letter/order dated 15. 1. 2005 was ineffective and inoperative. Learned counsel representing the, respondents obviously joins issue with the learned counsel for the petitioner on the only point referred to above. In his endeavour to show that letter dated 19. 1. 2005 (Anx. 6) received at the end of the respondents on the same very day shall have to be treated as letter of withdrawal of resignation and inasmuch as the same was received by the respondents before the effective or operative date of the resignation of the petitioner i. e. , 20. 1. 2005, letter Annexure-5 was ineffective, reliance has been placed upon four judgments of the Supreme Court in J. N. Srivastava vs. Union of India and Another (AIR 1999 SC 1571), Shambu Murari Sinha vs. Project & Development India and Another (2000) 5 SCC 621 = RLW 2000 (2) SC 283), Bank of India and Others vs. O. P. Swarnakar and Others (2003) 2 SCC 721 and Shambhu Murari Sinha vs. Project & Development India Ltd. and Another (2002) 3 SCC 437. In J. N. Srivastava vs. Union of India (supra), it was held by the Supreme Court that an employee has locus standi to withdraw the proposal of his voluntary retirement before the date of retirement is reached and the fact that he has given up charge of post as per his memo of relinquishing charge would not estop him from withdrawing his voluntary retirement notice. In Shambhu Murari Sinha vs. Project and Development India Ltd. (2002) 3 SCC 437 (supra), voluntary retirement was sought by an employee under a scheme. The relevant scheme did not stipulate that an employee opting for voluntary retirement would be dis-entitled to withdraw from voluntary retirement. It was held by the Supreme Court that in such circumstances, even after the said acceptance but before the date of actual release from service, an employee did have locus standi to withdraw his proposal for voluntary retirement. In Bank of India vs. O. P. Swarnakar (supra), it was held by the Supreme Court that the terms contained in voluntary retirement scheme constituted an invitation to treat and not a proposal or an offer, the acceptance of which by an employee could fructify in a concluded contract. It was also held that when no consideration was passed from either side, it was rather bank's acceptance of the employee's proposal that would constitute a promise and culminate in an enforceable contract and in absence of any other binding contract or statutory provision to the contrary, such proposal attracted Sec. 5 of the Contract Act and therefore, despite the prohibition clause in the Scheme, employee could withdraw his option for the Scheme before the same was accepted.
(3.) WITHOUT disputing the law laid down by the Supreme Court in the judicial precedents, as mentioned above, learned counsel appearing for the respondents, however, relies upon a judgment of the Supreme Court in Vice Chairman and Managing Director, APSIDC Ltd. and Anr. vs. R. Varaprasad & Ors. 2003 (3) SLJ 114 and states that after taking into consideration the earlier judgments in Balram Gupta vs. Union of India and Another (AIR 1987 SC 2354), J. N. Srivastava vs. Union of India (AIR 1999 SC 1571) (supra), and Shambhu Murari Sinha vs. Project & Development India and Another (2000) 5 SCC 621 (supra), the Supreme Court has taken a different view and therefore, the impugned order accepting resignation of the petitioner needs no interference by this court. This court has heard contentions raised by the learned counsel for the parties and with their assistance, examined records of the case. This Court is of the firm view that the judgment of the Supreme Court in R. Varaprasad and Others (supra), is distinguishable and cannot be applied to the facts of the present case. Supreme Court in the above case was dealing with number of appellants. Reliance of the learned counsel for the respondents is on the observations made by the Supreme Court in Civil Appeal No. 4658-4659 of 2001, discussion whereof has been made in para 18 of the judgment. Facts of the said appeals would reveal that the same were filed against a common order of the High Court. Respondents in the said appeal had filed writ petition in the High Court seeking direction to the appellant Corporation to continue them in service till they attained age of superannuation. Respondents were covered by VRS Phase-III but the Corporation had fixed 31. 10. 1998 as the cut off date for voluntary retirement. Respondents of Phase-III filed application seeking voluntary retirement on 31. 10. 1998 and 10. 12. 1998. Corporation accepted their options on 24. 11. 1998 and 27. 10. 1998 which were also acknowledged by the respondents on 26. 11. 1998 and 2. 11. 1998. Thereafter, they applied for withdrawal of the options on 8. 9. 99 and 26. 2. 99 respectively. These respondents could not be relieved from service along with large number of employees who were relieved on 31. 7. 1999 under VRS Phase-II because of the interim order granted by the High Court in writ petition filed by them. Division Bench of the High Court while placing reliance upon the judgments of the Supreme Court in Balram Gupta vs. Union of India (supra), J. N. Srivastava (supra) and Shambhu Murari (supra), allowed the writ petitions and directed the Corporation to continue them in service till their attaining age of superannuation. High Court was of the view that the respondents had filed withdrawal applications on 8. 11. 99 and 26. 2. 99 and by taking the benefit of interim directions granted by the High Court on 30. 7. 99, continued in service while they were to be relieved on 31. 7. 99 with the result that they were still in service on that day. High Court was further of the view that these respondents had made applications for withdrawal before the effective date i. e. , 31. 7. 1999. Supreme Court while distinguishing the judgment in Bank of India (supra), observed that unlike in the said case, the respondents in the present appeal had filed applications offering to take voluntary retirement under the scheme; their applications were accepted by the Corporation which was acknowledged by the respondents; they made representations for withdrawal from VRS several days after the Corporation accepted their applications seeking voluntary retirement; merely because they could not be relieved in view of the interim orders passed by the High Court in the writ petitions and they could not be relieved immediately after the cut off date, for want of funds to be received from the Government by the Corporation. It was in these circumstances that it was further held that the respondents could not take away the result or escape consequence of the acceptance of their voluntary retirement by the Corporation and that question of withdrawal of their applications made for seeking voluntary retirement after acceptance did not arise and they could not be permitted to do so. Pertinent observation of the Supreme Court distinguishing its earlier judgment is that the respondents in the case aforesaid had made applications withdrawing for VRS after the Corporation had accepted their applications and further that they could not be relieved simply because the High Court had passed interim directions. Judgment of the Supreme Court relied upon by the learned counsel for the respondents would not be applicable to the facts of the present case. It is not thus a case where the Supreme Court might have taken a contrary view from the one taken by it in Bank of India and others (supra ). In fact, Supreme Court had itself distinguished the facts of the case in Bank of India and others (supra), from the one dealt by it in Vice Chairman and Managing Director (supra ). In the case in hand, vide letter dated 20. 11. 2004 the respondents made enquiries from the petitioner as to whether she would like to remain on leave or voluntary retirement w. e. f. 31. 10. 2004. A reply was sought from her on the questions as referred to above. The petitioner replied letter aforesaid vide Annexure-4 on 27. 11. 2004 wherein she mentioned that she had gone to the office on 23. 11. 2004 but could not sign and after making enquiries from the employees with regard to her promotion, came home early. She further mentioned that she should be given full salary from 25. 10. 2004 to 10. 12. 2004 as she was sick and had also important work at home. It is significant to mention that she made no mention with regard to her voluntary retirement. She thus did not state that she may be relieved on 31. 10. 2004. She rather prayed for full salary from 25. 10. 2004 up to 10. 12. 2004 which clearly indicates that her reply in response to Annexure-3 was that she would continue in service. Despite clarification as made by the petitioner vide letter Annexure-4 the respondents gave her marching orders on the plea that she had resigned on 21. 10. 2004. In fact, acceptance of the resignation vide letter/order Annx. 5 is wholly illegal. Once the respondents had sought clarification from the petitioner, as mentioned above, there was no question that the letter dated 21. 10. 2004 could be treated as letter of resignation. Be that as it may, once the petitioner had communicated to the respondents that she had withdrawn her voluntary retirement application sent through letter dated 21. 10. 2004 and the letter aforesaid was received by the respondents before the effective date of voluntary retirement, as mentioned in Annexure-5 the respondents ought to have treated Anx. 5 as cancelled. The Court, after examining the entire records and in particular, the letter said to be containing request of the petitioner for voluntary retirement is rather of the view that the petitioner was clamouring for promotion. It was in total disappointment and disgust that she made mention of her desire to retire from service. In fact, she was wanting promotion and if the same was not to be accorded to her, she might retire. The said letter per se could not be treated to be a request for voluntary retirement. In similar circumstances, where petitioner in the said case had said "i should resign. . . . . in protest" the Supreme Court in P. K. Ramchandra Iyer and Others vs. Union of India and Others (1984) 2 SCC 141 held that when decision is taken to resign on an employee being exasperated due to discriminatory treatment and victimising attitude of the authorities and when the authorities treated it to be her resignation, the action would amount to illegal removal from service. Looked from any angle, the impugned order accepting voluntary retirement of the petitioner dated 15. 1. 2005 (Anx. 5) cannot possibly stand, the same is quashed. ;