1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Sher Singh Vs. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.4218/2006 DATE OF ORDER :: April 25, 2007 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.C.P.Soni, for the petitioner. Mr.V.K.Mathur, Asstt. Solicitor General, for the respondents UOI. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents to re-induce him into the Force and permit him to withdraw the wrongful resignation. I have heard learned counsel for the parties. Facts giving rise to the instant writ petition are that the petitioner joined the Border Security Force (for short `the BSF' hereinafter) and was enrolled on the post of Contable w.e.f. 2 1.4.1988. He was posted to 95 BN BSF on his enrollment by allotting him ROE No.88165918. Vide Application Annexure-R/1, the petitioner sought voluntary retirement submitted to the Commandant 95 Battalion, BSF, wherein hostility/terrorist activities were going on. The application reads that for the family reasons, the petitioner is unable to serve in BSF and, therefore, sought the voluntary retirement. Vide Annexure-R/2 dt. 22.10.1999, the resignation tendered by the petitioner was accepted w.e.f. 31.10.1999 (AN) without any pensionary benefit as the petitioner did not render the pensionable service till then. By order Annexure-R/3 dt. 28.12.1999, the petitioner requested the respondent to permit him to withdraw his resignation and take him back in service. The respondents did not accept the request of the petitioner and intimated him vide Anneuxre-R/4 that his resignation from service was on his own request and, therefore, cannot be allowed to withdraw the same after having been accepted. A reply to the writ petition has been filed by the respondents stating therein that during a short span of his tenure, the petitioner was awarded as many as 7 punishments for committing the offences under the BSF Act, 1968 and earlier also, the petitioner had remained absent without leave or on some occasions, overstayed the leave granted. At the relevant time also, the petitioner overstayed the leave. Vide 3 Annexure-1, the petitioner sought extension of leave, which was denied for the reasons that extension of leave sought cannot be granted due to exigency of service and he was directed to report the Unit, failing which disciplinary action was to be taken against him as per the BSF Act and Rules. Petitioner failed to report the Unit and, therefore, the disciplinary proceedings were initiated against him vide Annexure-2 and the memorandum charges served upon him. However, the petitioner sought voluntary retirement and, therefore, the disciplinary proceeding did not proceed any further and was dropped and it was cancelled vide Annexure-3. The punishment awarded to the petitioner as stated by the respondents in reply reads as under: “(a) Under Section 19 (a) on 25.07.1991 awarded 20 days FI in force custody. (b) Under Section 26 on 09.05.1993 awarded 28 days RI in force custody. (c) Under Section 26 on 09.02.1994 awarded 14 days RI in force custody. (d) Under Section 19 (b) on 24.11.1994 awarded 10 days confinement to unit lines. (e) Under Section 19 (a) on 17.04.1997 awarded 28 days RI in force custody. (f) Under Section 19 (b) on 20.10.1998 awarded 14 days Detension in force custody. (g) Under Section 19 (a) on 13.3.99 awarded 28 days RI in 4 force custody.” So far as applicability of the pension is concerned, the respondents came with a case that pensionable service in BSF is 20 years service, whereas the petitioner has served a period of 11 years and he was informed vide order Annexure-R/7 and 8 that he is not entitled for pension since he did not render 20 years service qualifying him for pension. Vide Annexure-R/10, the case of the petitioner was carefully examined by IG BSF, Baramulla on the request of the petitioner for reinstatement in service and after taking into account all the facts and circumstances of the case, the case of the petitioner was rejected as it was devoid of any merit. Learned counsel appearing for the respondents submits that the writ petition suffers from delay and laches as the resignation submitted by the petitioner resigning from service was accepted w.e.f. 31.10.1999 and the writ petition was filed on 2.8.2006 i.e. almost after seven years. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Shambhu Murari Sinha vs. Project & Development India and Anr., (2000) 5 SCC 621 and a decision of 5 this Court in Ganpat Dan vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.2347/2002) decided on 10.2.2005. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. From the facts stated in the reply, it is clear that within a short span of 11 years, petitioner committed various offences punishable under the BSF Act and was awarded punishment on as many as 7 occasions as noticed above under the various sections of BSF Act. On the relevant occasion, the petitioner went on leave and sought extension, which was declined by the respondents due to exigency of service and he was directed to report the Unit, failing which a disciplinary action was to be taken against him under the BSF Act and Rules. The petitioner failed to report the Unit and, therefore, the disciplinary proceedings were initiated against him but the petitioner sought the voluntary retirement, which is evident from Annexure-R/1 and the same was accepted w.e.f. 31.10.1999 vide Annexure- R/2 and thereafter the petitioner on acceptance of his application for voluntary retirement, retired from the BSF. Learned counsel for the petitioner has failed to show any provision entitling the petitioner to withdraw his resignation after having been accepted. 6 In Shambhu Murari Sinha vs. Project & Development India and Anr. (supra), the Hon'ble Supreme Court while considering the scheme for voluntary retirement held that the withdrawal of the voluntary retirement before the effective date of voluntary retirement is permissible. In that case, the appellant therein sought the voluntary retirement under the scheme commonly known as voluntary retirement scheme (VRS). The application seeking voluntary retirement was dt.18.10.1995, which was accepted by the respondents therein on 30.7.1997. The application moved by the appellant for withdrawal of the application for voluntary retirement was prior to the date of acceptance of the voluntary retirement and, therefore, the Apex Court held that the resignation, in spite of its acceptance, can be withdrawn before the effective date. In the instant case, the effective date is 31.10.1999 and till this date, the petitioner had never made any request for withdrawing the application for voluntary retirement. In Ganpat Dan vs. State of Rajasthan & Ors. (supra), this Court held as under:- “From the facts stated above, it is amply clear that on March 13, 2001, the petitioner sought voluntary retirement 7 w.e.f. May 31, 2001. Then, subsequently, on March 20, 2001, the petitioner sought withdrawal of the application for voluntary retirement. It may be mentioned that for all practical purposes, the effective date was May 31, 2001. In the meantime, as pointed out above, the respondent vide letter dated April 12, 2001 (Annex.3) informed the petitioner that Vide Order No.1050- 54 dated March 14, 2001, his application for voluntary retirement has been accepted. Thus, it will be construed that it was a prospective voluntary retirement and it could very well be withdrawn prior to the date of its being effective. The effective date was May 31, 2001. In fact, the right of the employee to withdraw the application for voluntary retirement, prior to its acceptance, cannot be curtailed by the employer. In the absence of any Statutory Rules, the respondents were not competent to take away the substantive right of the petitioner to withdraw the application for voluntary retirement. An employee can withdraw his application for voluntary retirement before the effective date. The effect date would necessarily be the date on which the proposed retirement takes effect. Meanwhile, the relation of master and servant subsists and does not come to an end.” In Jai Ram vs. Union of India & Ors., AIR 1954 SC 584, the Apex Court held as under: “It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite 8 permission to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so as long as he continues in service and not after he has been retired.” The decisions relied on by the learned counsel for the petitioner turn on their own facts and are no help to the petitioner. In Jai Ram vs. Union of India & Ors. (supra), the Hon'ble Supreme Court held that the request for withdrawal for voluntary retirement can be allowed to do so as long as the incumbent continues in service and not after he is retired. In the instant case, the petitioner sought withdrawal of the voluntary retirement much after his retirement as evident from the facts stated above. In the circumstances,therefore, in my view, the respondents committed no error in declining the petitioner to withdraw his resignation, which was accepted vide Annexure-R/2, even taking the conduct of the petitioner which is evident from the reply filed by the respondents, he has been awarded as many as seven punishments within short span of 11 years' service and on the relevant date when he sought the voluntary retirement, he was facing the disciplinary proceedings. In the circumstances, otherwise also, it is not at all a fit case for 9 directing the reinstatement at such a belated stage. The writ petition deserves to be dismissed even on the ground of delay and laches. In the circumstances, therefore, I do not find any merit in the writ petition and the same is accordingly dismissed. There shall be no order as to costs. [H.R.PANWAR],J. m.asif/-