PANWAR, J. - (1.) BY the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents to treat him in service on the post of LPG Operator.
(2.) THE facts and circumstances giving rise to the instant writ petition are that the petitioner was an employee of the respondent Hindustan Petroleum Corporation (for short 'the Corporation' hereinafter) working on the post of LPG Operator and was posted at LPG Plant at Kota of the respondent Corporation. A Voluntary Retirement Scheme (for short LRS" hereinafter) was floated by the respondents vide Annex. R-1 on 14. 7. 2004. THE petitioner submitted an application to the respondent Corporation, seeking voluntary retirement, on 17. 7. 2004 under VRS with effect from 31. 12. 2004 vide Annex. 1. THE application filed by the petitioner seeking voluntary retirement under VRS was accepted by the respondent Corporation vide order Annex. R-2 dated 18. 11. 2004 and it was conveyed to the petitioner that consequent to the acceptance of his VRS application, the petitioner will be voluntarily retiring from the services of the Corporation w. e. f. close of business on 31. 12. 2004 and in order to facilitate settlement of final dues expeditiously, the blank forms to be filled and completed by him were also attached and sent to the petitioner and the petitioner was requested to fill the forms and submit the same at the earliest. THE petitioner sent a communication dated 23. 12. 2004 Annex. 2 to the respondents stating therein that on 23. 7. 2004 he applied for voluntary retirement under VRS and the same has been accepted, however, he has changed his mind and wants to continue in the service, and therefore, sought permission to allow him to remain in service. A communication was sent to the petitioner by the respondents vide Annex. R-3 dated 8. 12. 2004 informing him that he is a member of Superannuation Benefit Fund Scheme (for short 'the SBF Scheme' hereinafter) and has opted for VRS scheme offered by HPCL. Consequent of his superannuation, he will cease to be a member of SBF scheme and he was apprised of the options available to him as per the Rules of the SBF scheme; (1) to receive refund of his contributions along with interest as per the rules. THE amount is approximately Rs. 1,30,398. 88 or (2) to receive 21. 33% of his last drawn salary as monthly benefit on his attaining the age of 60 years i. e. his notional date of the retirement. THE petitioner was to exercise one of the above two options. Vide Annex. R-4 dated 31. 12. 2004, in reference to Annex. R-3, the petitioner opted to receive refund of his contributions along with interest. Vide Annex. R-5 dated 23. 2. 2005 a sum of Rs. 1,32,769. 93 was sent to the petitioner by cheque dated 31. 1. 2005 in view of the option exercised by him for SBF Scheme contribution which the petitioner has received. One Gold coin which was available to the retiring persons on superannuation weighing 25 grams, was also sent to the petitioner and the same was also received by him. Vide Annex. R-8 dated 07. 3. 2005, the respondents communicated to the petitioner that he has a credit balance of Rs. 5,95,760/- towards Gratuity & Ex Gratia against which a sum of Rs. 7,98,873. 43 is recoverable from the petitioner on account of various loans and advances taken by him and after adjusting the payable sum from receivables, Rs. 2,03113. 43 is balance for recovery. THE petitioner was also informed that he has a credit balance of Rs. 4,13,127/- towards Co. Provident Fund which would be released to him only after receiving/ recovering the said unpaid amount and in case he is unable to deposit the amount sought to be recovered from him, he was asked to give authorization letter in the prescribed form to recover the amount from his PF balance. THE petitioner neither consented for deducting the outstanding loan amount taken by him from the amount payable nor deposited the dues outstanding to him. THE communication Annex. R-9 was also sent to the petitioner for the said purpose. However, the petitioner seeks withdrawal of the application filed by him seeking voluntary retirement under the VRS and continuity of service. Hence this writ petition. I have heard learned counsel for the parties. Learned counsel for the petitioner has relied on decisions of Hon'ble Supreme Court in Shambhu Murari Sinha vs. Project Development India and Anr. , AIR 2000 SC 2473 = (RLW 2000 (2) SC 283), Shambhu Murari Sinha vs. Project Development India and Anr. , AIR 2002 SC 1341 = (RLW 2000 (2) SC 283), Balram Gupta vs. Union of India and Another AIR 1987 SC 2354, J. N. Srivastava vs. Union of India and Another, AIR 1999 SC 1571, P. Lal vs. Union of India & Others AIR 2003 SC 1499 and a Division Bench decision of this Court in Managing Director, Rajasthan Rajya Sahkari Awasan Sangh Ltd. vs. Ram Prasad Meena and Ors. 2006 (1) CDR 512 (Raj. ). Per contra, learned counsel appearing for the respondents has relied on decisions of Hon'ble Supreme Court in Vice-Chairman and Managing Director, A. P. SIDC Ltd. and Another vs. R. Varaprasad and Ors. (2003) 11 SCC 572, Punjab and Sind Bank and Another vs. S. Ranveer Singh Bawa and Another (2004) 4 SCC 484 and in Bank of India and Ors. vs. Pale Ram Dhania (2004) 9 SCC 36. In Shambhu Murari Sinha vs. Project & Development India & Anr. , (2000) 5 SCC 621, the Hon'ble Supreme Court held that the resignation, inspite of its acceptance, can be withdrawn before the effective date, though on review petition, this decision came to be reviewed and set aside and subsequently in Shambhu Murari Sinha vs. Project and Development India & Anr. , AIR 2002 SC 1341, the Hon'ble Supreme Court held as under:- " Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i. e. 26th September 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw of proposal for voluntary retirement before the relationship of employer and employee came to an end. "
(3.) IN Balram Gupta vs. Union of INdia, AIR 1987 SC 2354, the appellant therein by letter dated 24. 12. 1980 sought voluntary retirement w. e. f. 31. 3. 1981. He was allowed to retire voluntarily from service prospectively w. e. f. Afternoon of 31. 3. 1981. IN the meantime, on 31. 1. 1981, the appellant therein withdrew his notice on ground that on account of persistent and personal requests from the staff members he had changed his mind. However, the appellant therein was relieved by order dated 31. 3. 1981 and in the very order it was mentioned that the appellant's withdrawal application was considered and was found not acceptable. The Hon'ble Supreme Court held that undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. IN that case, the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Hon'ble Supreme Court further held that there was no valid reason for withholding the permission by the Govt. In J. N. Srivastava vs. Union of India and another AIR 1999 SC 1571, the Hon'ble Supreme Court, while considering the question whether the appellant therein was entitled to withdraw the voluntary retirement notice of three months submitted by him on 3. 10. 1989 which was to come into effect from 31. 1. 1990, the proposal was accepted by the authorities on 2. 11. 1989, however, before 31. 1. 1990, the appellant therein by letter dated 11. 12. 1989 sought to withdraw the voluntary retirement proposal which was not accepted by the respondents vide communication dated 26. 12. 1989, held that it is now well settled that even if the voluntary retirement notice is moved by an employee and get accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. In P. Lal vs. Union of India and Others AIR 2003 SC 1499, Hon'ble Supreme Court held that an employee can withdraw his application for voluntary retirement before effective date. The effective date would necessarily be on the date on which the retirement takes effect. ;