JHA, CJ. - (1.) THE State of Rajasthan has come in appeal against the decision of the learned Single Judge dated 29. 5. 97 allowing the writ petition of respondent No. 1 R. P. Agrawal with a direction to the appellant and respondents Nos. 2 and 3 herein to treat him as having voluntarily retired with effect from 30. 9. 94 and to grant/sanction all consequential retiral benefits to him.
(2.) BRIEF facts of the case so far as relevant to dispose of this appeal are that respondent No. 1 who was holding the post of Technical Advisor in the State Enterprises Department of the State Government, sought voluntary retirement with effect from 30. 9. 1994 by giving notice to that effect on 2. 6. 94. He was informed vide letters dated 20. 6. 94 and 6. 7. 94 that his request was under consideration but no decision in the matter was communicated. On 30. 9. 94 he relinquished the charge of the post. Later, on 25. 3. 95 he was served with a charge-sheet in respect of a departmental proceeding under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short `cca Rules' ). Two more charge-sheets were issued respectively on 26. 4. 96 and 15. 11. 96. As the retiral dues were not being finalised, presumably on account of initiation of the departmental proceedings, the respondent approached this Court seeking direction to respondent Nos. 2 and 3 to pay him retiral benefits. The question which in the facts and circumstances arose for consideration before the learned Single Judge was whether by reason of his offer of voluntary retirement with effect from 30. 9. 94, the employer-employee relationship came to an end on that date and, therefore, whether any departmental proceeding could be initiated against him and on that ground his retiral dues could be withheld. The learned Single Judge held that in terms of rule 244 of the Rajasthan Service Rules, 1951 the respondent stood voluntarily retired on expiry of the notice period on 30. 9. 94 and he could not be denied his retiral dues. Appearing for the appellant Shri Mohd. Rafiq, learned Addl. Advocate General, submitted that the notice dated 2. 6. 94 was merely an offer of voluntary retirement from service and until and unless the offer was accepted by the Government, it could not be said that it took effect automatically on expiry of the notice period and inasmuch as no decision was communicated to the respondent accepting his offer of voluntary retirement, he cannot be deemed to have retired from service on 30. 9. 94. Rule 244 of the Rajasthan Service Rules, 1951 provides for voluntary retirement from government service. So far as relevant, the rule runs as under: -      " 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 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. " On a plain reading it would appear that the request of the Government servant to voluntarily retire after completing the qualifying service or attaining the qualifying age is not binding on the Government, and in situations contemplated in clauses (i), (ii) or (iii) of the proviso, the appointing authority may reject the request. To this extent the submission of Shri Rafiq that the notice dated 2. 6. 94 was in the nature of the request of the offer which was not binding on the Government is correct. However, we do not find any substance in the contention that the notice did not take effect and the respondent continued in government service because the Government did not communicate its decision to him. The Government servant is not supposed to wait till the State Government communicates its decision on the request, and till that is done, the request remains in abeyance, and he continues in the employment of the Government. The fact that the Government servant is under suspension or is facing enquiry or a proceeding is contemplated against him are grounds on which the request can be turned down but it does not mean that the Government can withhold its decision. It may withhold permission, but it can not withhold its decision so as to make the rule imapplicable and render the right of the government servant infructuous.
(3.) THE point is not res-integra which would be evidence from the following decisions. In B. J. Shelat vs. State of Gujarat & Ors. (1978) 2 SCC 202, the Supreme Court had occasion to consider an identical provision in Rule 161 of the Bombay Civil Service Rules, 1959. Clause (ii) of sub-rule (2) of rule 161 laid down - Any Government servant to whom clause (a) applies may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. . . . and in any other case, after he has attained the age of 55 years. Provided that it shall be open to the appointing authority to withhold permission to retire to a Government servant who is under suspension, or against whom departmental proceedings are pending or contemplated, and who seeks to retire under this sub- clause. " A request arose about the meaning of the word "withhold" and on behalf of the State it was argued with reference to the meaning of the word in Webster's Third New International Dictionary as "hold back" that the permission should be deemed to have been withheld if it is not communicated. Rejecting the submission the Court observed:      " We are not able to read the meaning of the word withhold as indicating that in the absence of a communication it must be understood as the permission having been withheld. " ;