1 S. B. CIVIL WRIT PETITION NO.4063/2006 ANAND SINGH RATHORE & ANR. V. THE STATE & ORS. DATE OF ORDER :::: 12/03/2008 HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. P.S.Bhati, for Petitioner (s). Mr. Shyam Ladrecha, G.A. By this writ petition, petitioners have challenged the order dated 9.6.2006 passed by the respondents with a further direction that the petitioners' case may be considered for grant of compassionate appointment. Learned counsel for the petitioners contended that father of petitioner No.1 Late Shri Gambhir Singh Rathore was erstwhile Government employee, who died, while in service, but the respondents treated the father of the petitioner as retired prior to his death on 24.2.2006. It has further been contended that father of petitioner No.1 Late Shri Gambhir Singh Rathore moved an application seeking voluntary retirement. However, before the said application dated 25.10.2005 would have been accepted, an application 2 was moved on 21.1.2006 (Annexure-2), showing his intention to withdraw the application for voluntary retirement. However, in ignorance of Annexure-2, respondents passed an order at Annexure-3 dated 27.1.2006, retiring Shri Gambhir Singh Rathjore from service. Thereafter, the respondent, treating the order dated 27.1.2006 (Annexure-3) to be absolute, denied compassionate appointment to the petitioner No.1 vide Annexure-7 dated 9.6.2006. Learned counsel for the petitioner contended that when the application for seeking voluntary retirement was to be given effect from 1.2.2006, then father of the petitioner was having a right to withdraw it before the aforesaid date and by moving an application on 21.1.2006, Shir Gambhir Singh Rathore had made a request to treat the application of voluntary retirement as withdrawn as it was prayed that he is not intended and inclined to seek voluntary retirement, but, in ignorance to the said application, the order dated 27.1.2006 has been passed by the same authority. In view of the above, learned counsel for the petitioner contends that once the application for 3 voluntary retirement was withdrawn, the subsequent order dated 27.1.2006 becomes illegal. Learned counsel for the respondents, on the other hand, submits that though application for withdrawal of request for voluntary retirement was moved, but, then, the said application was not given to the competent authority, hence could not be considered and it is only on that ground, respondents have given justification to their action not only passing the order dated 27.1.2006, but also the order dated 9.6.2006. It is also contended that the erstwhile Government servant Shri Gambhir Singh Rathore had moved all papers for seeking benefit of pension, thus, now, it is not open for the petitioners to challenge the order dated 28.1.2006. I have considered the rival submissions of the learned counsel for the parties and scanned the matter carefully. The perusal of the record shows that the father of petitioner No.1 had moved an application for seeking voluntary retirement and the said application was moved on 4 25.10.2005, with a clear indication that erstwhile Government servant was intend to seek retirement w.e.f. 1.2.2006 as otherwise stated in Annexure-3. Before the acceptance of the application on 1.2.2006, Shri Gambhir Singh Rathore moved another application for withdrawal of his request for voluntary retirement dated 21.1.2006, thus, consequence of such application is that the respondents were not to act pursuant to the request by Shri Gambhir Singh Rathore dated 21.1.2006, but, surprisingly, the said application was accepted by the District Education Officer, Jaisalmer and the order was passed by him vide Annexure-3 dated 27.1.2006, though the same officer was otherwise given a request for withdrawal of the application at Annexure-2 dated 21.1.2006. In these circumstances, the justification given by the respondents for accepting the application of voluntary retirement, cannot be accepted, inasmuch as when the District Education Officer himself accepted the application for voluntary retirement, then moving an application on 21.1.2006 by erstwhile Government employee cannot be accepted to be a representation to an incompetent authority and, in any case, the application of the petitioner was endorsed even by 5 the necessary endorsement as exists at Annexure-2, therefore, so far as the first excuse taken by the learned counsel for the respondents is concerned, the same is not acceptable. The next ground taken by the respondents is that erstwhile Government employee Shri Gambhir Singh Rathore had moved papers for seeking pension, it is necessary to clarify that even if an employee moves an application for withdrawal of his request for voluntary retirement, the respondent arbitrarily passed an order, such a low paid employees remains with no option but to pursue his matter for getting some amount for his survival, therefore, merely for the reason that pension papers were moved by Shri Gambhir Singh Rathore, legal issue needs determination in view of Annexure-2, cannot be wiped out. In view of the above, the order dated 27.1.2006 is not legally sustainable, hence same is set aside. Consequence of the aforesaid direction is that Shri Gambhir Singh Rathore is to be treated as died while in service and, in that case, the petitioner is having right of consideration for grant of compassionate appointment, hence the order dated 9.6.2006 is also set aside with a direction to the 6 respondents to consider the case of the petitioner No.1 for grant of compassionate appointment within a period fo three months from the date of receipt of the copy of this order. The writ petition is allowed with the aforesaid directions, with no order as to costs. ( M. N. BHANDARI ), J. scd