RAFIQ, J. - (1.) IN this writ petition, the petitioner has prayed for a writ of mandamus that in view of the provisions contained in Rule 50 of the Rajasthan Civil Services (Pension) Rules, 1996 (for short Rules of 1996) he should be deemed to have retired voluntarily w. e. f. 1st January, 2002.
(2.) THE petitioner was initially appointed as Medical Officer in the month of June, 1983 on ad hoc basis. He was later selected by Rajasthan Public Service Commission (in short `rpsc') on the said post in March, 1984. THE petitioner was transferred from the Primary Health Center, Mandolinagar, District Jalore to Primary Health Center, Tanwari, District Sirohi vide order dated 30th April, 1994, Requirement of the order was that petitioner should first report of Chief Medical & Health Officer, Sirohi (for short `cmho') for joining at Tanwari. But since the petitioner was relieved after five months, he in the meantime, misplaced the copy of transfer order and not knowing about this fact directly joined at Primary Health Center, Tanwari. He was therefore served with the charge-sheet dated 13th November, 1996 as to why he straightway joined Tanwari instead of first reporting to the office of CMHO, Sirohi, Charge levelled against the petitioner was that he continuously remained absent from 11st October, 1994. Simultaneously, the petitioner was also placed under suspension. Second charge-sheet was served upon him on 26th February, 1997 on the allegation that he did not join the office during the period of suspension. THE petitioner submitted reply to both the charge- sheets and denied the allegations levelled against him. On completion of inquiry, the Inquiry Officer submitted his report with respect to his first charge-sheet on 17th August, 2001 and regarding second charge-sheet on 8th June, 2001. THE petitioner was supplied copies both the inquiry reports and was required to submit his representations there against. Due to personal reasons, the petitioner submitted an application dated 16th July, 2001 seeking voluntary retirement after completion of 15 years of service. THE petitioner submitted his representations with regard to first inquiry report on 5th September, 2001 and for second inquiry report on 19th September, 2001. The case of the petitioner is that he gave notice by his application to the respondents on 16th July, 2001 seeking voluntary retirements. In his application seeking voluntary retirement the petitioner had categorically stated that according to the provisions of Rule 50 of the Rules of 1996, he may be deemed to have voluntarily retired w. e. f. 1st January, 2002 and 31st December, 2001 may be treated as his last working day. The petitioner received an order dated 29th September, 2001 issued by CMHO with which he also received copies of order dated 11st September, 2001 issued by the Additional Director & Secretary, Department of Personnel and dated 8th June, 2001 issued by Secretary, Department of Personnel. The CMHO forwarded the application of the petitioner for voluntary retirement to the Director vide letter dated 26th September, 2001. But nothing was done on the notice of the petitioner for seeking voluntary retirement. Then he sent reminder on 28th January, 2002. A letter dated 2nd February, 2002 was addressed to him by CMHO in which he informed that he was not the authority competent to either accept or refuse the request for voluntary retirement of the petitioner. A reference in this letter was made to the orders of the Government dated 11st September, 2001 and 29th September, 2001 and an impression was sought to be given as if the request for voluntary retirement has been refused whereas those two orders had nothing to do with either acceptance or refusal of request for voluntary retirement. In the meantime, the respondents by order dated 31st October, 2001 imposed a penalty of withholding of four grade increments with cumulative effect with regard to first charge-sheet and by another order dated 31st December, 2001 imposed penalty of withholding one grade increment with cumulative effect for second charge-sheet. In the first order of penalty, the period of suspension of the petitioner was forfeited and his period of absence was deemed to be break in service. The petitioner has alleged that these two orders were issued in the month of January, 2002. These orders are anti dated with a view to frustrating his request/notice for voluntary retirement. The annual increments were not released since 1995 nor was he fixed in the new pay scale w. e. f. September, 1996. It is in this background of the matter that the petitioner has filed the aforesaid writ petition. The writ petition was contested by the respondents who in their reply contended that the petitioner was issued charge-sheet because he remained willfully absent from the period since 11th October, 1994. There was no question of accepting his request of voluntary retirement because the fact regarding pendency of two disciplinary proceedings was fully well known to the petitioner when he submitted such application. It was denied that the order of penalty was anti dated. It has been submitted that during the pendency of the disciplinary proceedings, the petitioner was not entitled to earn annual grade increments fixed in the revised pay scale rules. It has therefore been prayed that the writ petition may be dismissed. I have heard Mr. P. P. Choudhary, learned counsel for the petitioner and Mr. Rameshwar Dave, Dy. Government Advocate for the respondents and perused the record.
(3.) THE petitioner in para 7 of the writ petition has asserted that he gave a notice of voluntary retirement on 16th July, 2001 stating therein that he had completed more than 15 years of service and therefore requested that he should be deemed to have retired voluntarily w. e. f. 1st January, 2002 and his pension papers should be accordingly prepared. This application was addressed to Director, Medical & Health Service for Rajasthan with a copy endorsed to CMHO, Jalore. THE respondents in reply to para 7 of the writ petition have not denied the fact with regard to receipt of application for voluntary retirement dated 16th July, 2001. What however they have stated is that since the petitioner was knowing it well that he was facing disciplinary proceedings in two matters he could not give the notice for voluntary retirement. Reference has been made to letter dated 2nd February, 2002 in which CMHO informed the petitioner that his application for voluntary retirement has been forwarded to Director, Medical & Health Service, but because of pendency of disciplinary proceedings against him, as per Rules, voluntary retirement could not be given to a delinquent government servant. No order permitting voluntary retirement of the petitioner has been received from the Director and so long as permission for voluntary retirement of the petitioner is not granted by Director, the petitioner could not treat himself to have retired voluntarily. He would therefore be treated to have been absenting from the duties. The only communication which was sent the petitioner after his notice for voluntary retirement was the letter dated 2nd February, 2002 which CMHO, Jalore wrote to him. In this letter, he has made reference to the order dated 11th September, 2001 and 29th September, 2001 both the which have not no relevance in so far as the issue regarding voluntary retirement is concerned. While CMHO wrote that due to pendency of the disciplinary proceedings against the petitioner, he could not be given voluntary retirement but at the same time he also wrote that no orders on the request of the petitioner for voluntary retirement has so far been received from the Director and therefore till orders are issued by the Director, the petitioner could not be deemed to have retired voluntarily. It is significant to note that even though the respondents received notice of voluntary retirement dated 16th July, 2001 but the communication sent to the petitioner in response thereto was as delayed as 2nd February, 2002 in which also the CMHO, Jalore merely informed the petitioner that his application was pending consideration with the Director. Notice for voluntary retirement given by the petitioner was quite specific in which he categorically stated that he may should be deemed to have retired voluntary w. e. f. 1st January, 2002 and his pension papers should accordingly be prepared. I have to now examine whether in the light of the provisions contained in Rule 50 of the Rules of 1996 such a notice would have effect the voluntary retiring the petitioner or whether such retirement could not become effective in the absence of specific acceptance by the competent authority. The Rule 50 of the Rules of 1996 for the facility of the evidence is reproduced as under:- " 50 Retirement on completion of 15 years qualifying service; (1) At any time after a Government servant has completed 15 years' qualifying service, he may, by giving a notice of not less than 3 months, in writing, to the appointing authority, retire from service; (2) The notice of voluntary retirement, given under sub- rule (1), shall require acceptance by the appointing authority; Provided that where the appointing authority does not refuse to grant permission of retiring, before the expiry of the period specified in said notice, the retirement shall automatically become effective from the date of expiry of said period. " ;