ASOPA, J. - (1.) HEARD counsel for the parties on the application filed under Article 226 (3) of the Constitution of India filed by the respondent for vacation of interim order dated 27-2-2007.
(2.) THE reply to the said application has been filed by counsel for the petitioner. This Court on 27-2-2007 passed the following order:- ``issue notice to the respondents of the writ petition as also of stay petition. Rule is made returnable within two weeks. Meanwhile, operation of the order dated 22-2-2007 (Anx. 2) shall remain stayed and the respondents are directed to allow the petitioner to continue as Director, Information and Public Relation, Government of Rajasthan. '' The preliminary objection of Mr. R. D. Rastogi, counsel for the respondent is that on 27-2-2007, the application of the petitioner for withdrawal of the order of voluntary retirement dated 22-2-2007 was rejected but despite that the writ petition has not been amended, therefore, same has become infructuous and in infructuous writ petition, interim order cannot be allowed to continue. Mr. Rastogi, has placed reliance on a judgment rendered in the case of State of Mysore & Anr. vs. M. M. Thammaiah & Anr. reported in (1974) 2 SCC 281 (Para 19 ). Mr. Ashok Gaur, counsel for the petitioner has submitted that the issue involved in the writ petition is ``whether a Government employee can withdraw application for voluntary retirement before the effective date or not?'' In the present case, till 26-2-2007 the aforesaid application dated 23-2-2007 was neither decided nor the petitioner was allowed to withdraw the application seeking voluntary retirement, which was to be made effective from 28-2-2007, although he has prayed that the same be made effective from 1-3-2007. He further submits that this Court passed the interim order on 27-2-2007 and rejection of his application for withdrawal of voluntary retirement is also of the same date i. e. 27-2-2007, which is not of much consequence to decide the right of the petitioner to withdraw application for voluntary retirement before the effective date, therefore, the writ petition has not become infructuous. I am prima-facie of the view that the judgment relied by counsel for the respondent rendered in case of State of Mysore & Anr. vs. M. M. Thammaiah (supra) relates to the deletion of the rule and during the pendency of the case, permission to amend the petition was not sought, therefore, the Supreme Court was of the view that only relief challenging the legality of the Rule 137 of mysore Forest Rules had become infructuous for the aforesaid reason, is not applicable and the present writ petition has not become infructuous.
(3.) A bare perusal of interim order dated 27-2-2007 would reveal that the same consists two parts, first is ``stay of operation of impugned order dated 22-2-2007 and second is mandatory direction to ``allow the petitioner to continue as Director, Information and Public Relation. '' As regards, first part of the interim order, submission of Mr. R. D. Rastogi is that there is no prima facie case and balance of Convenience is also not in favour of the petitioner. Further, discontinuance of an employee, whose voluntary retirement application has been accepted, will not cause any kind of injury to him. The petitioner will get all the monetary reliefs in case writ petition is allowed. The order dated 22-2-2007 has been stayed and in case the writ petition is not allowed then the respondent will suffer the injury of continuing a person who already stood voluntary retired. Mr. Gaur on first part of stay has submitted that the law on the subject of voluntary retirement is fairly well settled by the Supreme Court that an employee can withdraw the application for voluntary retirement before the effective date which has been followed by the Division Benches of this Court in cases of (1) State of Raj. & Ors. vs. Achala Ram - 2005 (4) SLR 86, (2) Board of Secondary Education, Ajmer & Ors. vs. Smt. Sharda Pareek - 2005 (10) RRD 4093 and inaction on the part of the respondents of not allowing the petitioner to withdraw the said voluntary retirement application and further not setting aside the voluntary retirement order is contrary to said well established principle of law, thus there exists a strong prima facie case in his favour. The reason for voluntary retirement for personal reasons resolved when application for withdrawal was submitted on 23-2-2007 and the same were ceased to exists, therefore, the balance of convenience is also in his favour and in case the interim order is not continued then the petitioner would suffer irreparable loss of status as he has to lead premature retired life. Mr. Gaur further submits that a perusal of Rule 50 of the Rajasthan Civil Services Pension Rules, 1996 would reveal that process of voluntary retirement involve three stages i. e. offer, acceptance and withdrawal of offer before effective date. In the instant case, offer dated 10-2-2007 was accepted on 22-2-2007 w. e. f. 28-2-2007 and before the effective date, the petitioner has submitted the application on 23-3-2007 for withdrawal of voluntary retirement. Thus, the same is bilateral act coupled with right of withdrawal before effective date whereas the cases of compulsory retirement, termination, removal, dismissal are unilateral act of the Government as per rules, therefore, not allowing the withdrawal of application for voluntary retirement stands on different footing than the aforesaid cases where services are brought to an end and normally a positive direction for continuance is not passed. while concluding the aforesaid submissions Mr. Gaur submitted that the interim order dated 27-2-2007 was rightly passed. ;