IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4826 of 2005 DR.KRISHNA KUMAR MALLICK s/o late Brajeshwar Mallick, resident of House no. 90, Road no.2, Srikrishna Nagar, P.S. Budha Colony, patna at present residing at 1, Preet Vihar Cottage near Rani Talab, Dhaiya – Dhanbad. Versus 1. THE STATE OF BIHAR through the Chief Secretary, Bihar, Patna 2. The Secretary, Finance Department, Govt. of Bihar, Patna. 3. The Secretary, Health Department, Govt. of Bihar, Patna. 4. The Director-in-Chief, Health & Family Welfare, Govt. of Bihar, Patna. 5. The Accountant General, Bihar, Patna. ----------- 11 10.5.2011 By this writ application the petitioner has prayed for a direction to the respondent- State for payment of his retiral dues and other consequential arrears as consequence of his voluntarily retirement with effect from 31.3.2000. Counter affidavit and rejoinder have been filed and as such with the consent of the parties, the writ application has been heard for final disposal at this stage itself. The petitioner was initially appointed as a Medical Officer in the Bihar Health Service and posted at Primary Health Centre, Dumri, District- Giridih on 15.3.1979. He was transferred at various places and ultimately in 1999 he was again at Dumri. On 30.11.1999 (Annexure 2 ), the petitioner through proper channel submitted an application in terms of Rule 74(b)(i) of the Bihar Service Code seeking to retire voluntarily with effect from 31.3.2000, a copy of the same was also filed through the office of the Chief Medical Officer-cum- Civil Surgeon, Giridih, who forwarded the same under memo 2 no.1590, dated 7.12.1999 to the Director-in-Chief, Health Services, Government of Bihar, Patna. It is not in dispute that there was no response from the State to this letter of voluntary retirement and as such on 1.4.2000 the petitioner handed over the charge to one Dr. Jitendra Kumar Verma, Incharge, Medical Officer, Dumri as per charge report (Annexure –B). As there was no response nor settlement of his retiral dues, the petitioner made several representations to the authorities and ultimately vide memo no.58(2),dated 4.2.205 received a copy of communication that as the petitioner was involved in M.S.D. Scam, departmental proceedings were sought to be initiated . His application for voluntary retirement was being rejected. This is what brought the petitioner to this Court as the petitioner claimed that he has no knowledge of any such proceeding having been initiated or pending against him. In the counter affidavit the State has not denied the receipt of the application seeking voluntary retirement. In this regard it is admitted that a copy of petitioner’s application was received in the Health Department, Patna on 1.7.2000. In the counter affidavit it is asserted that the petitioner had not completed 20 years of service, which entitled him to seek voluntary retirement under Rule 74(b)(i) of the Service Code as in between he had gone abroad unauthorizedly for several years for which a proceeding is contemplated to be started and which period he deducted would reduce the period of service to less than 20 years. It is then stated that on 14.11.2000 the State was 3 bifurcated and for his role in M.S.D.scam he was suspended by the State of Bihar vide memo no. 714(3), dated 17.6.2002, which is marked as Annexure 2 to the counter affidavit and then the proposal for initiating departmental proceeding against him is also enclosed as Annexure A/1 to the counter affidavit being dated 10.6.2004. The further stand of the State is that the condition for voluntary retirement is not only completion of 20 years of service but must be satisfactory service, which is not the case in the present. Having heard the parties, in my view, the writ petition must succeed. A bare perusal of Rule 74(b)(i) of the Bihar Service Code would show that the right of an employee to seek voluntary retirement is not dependent upon its acceptance or requiring any formal order from the government. The only condition that is imposed is that he must have completed 20 years of service and gives three months notice. It may be mentioned here that originally the rule provided for 30 years of service, which in 1999 has been reduced to 20 years of service. The other thing to be noted is that a government service under suspension cannot seek voluntary retirement without specific approval of the State Government. In the counter affidavit it is not stated or asserted that in fact any departmental proceeding has been initiated or is pending. The indication is that it is contemplated to be initiated both in respect of petitioner’s alleged unauthorized absence and 4 his alleged involvement in M.S.D. scam. The fact remains that the counter affidavit admits application for voluntary retirement on behalf of the petitioner. Counter affidavit does not dispute that when the application was made, the petitioner had completed 20 years of service. Counter affidavit does not dispute that the petitioner handed over charge on 1.4.2000 upon his voluntary retirement .The question is whether in these circumstances the transaction of seeking voluntary retirement was complete or not and what would be its consequence. In my view it must be remembered that voluntary retirement or compulsory retirement are unilateral acts as against resignation, which is to be accepted. As has been held by the Apex Court in the case of Dinesh Chandra –v- State of Assam since reported in AIR 1978 SC 17 and in the case of Union of India –v- Sayed Muzaffar Mir. since reported in AIR 1995 SC 176, there is no question of acceptance of request for voluntary retirement by the government servant when the government servant exercises his right in respect therein. Thus, with effect from 1.4.2000, the petitioner would be deemed to have retired voluntarily. The consequence would be that he would accordingly be entitled to all benefits in this regard and another important consequence would be that upon voluntary retirement having matured, the master and servant relationship having come to an end. There was no scope of suspending the petitioner. As yet departmental proceeding having not initiated, it would be too late in the day to resort to the provision of Rule 5 43(b) of the Bihar Pension Rules. Before parting I may also notice that the acceptance of voluntary retirement is not a condition precedent. There is no question of completion of 20 years of satisfactory service and further no period of service can be deducted as unauthorized leave or be deemed to be a break in service without a departmental proceeding in that regard having been initiated and concluded. As noted above, what to talk of conclusion nothing was initiated prior to the retirement of the petitioner. Thus, in my view, there is no escape from the fact that the petitioner would be deemed to have retired with effect from 1.4.2000 with all consequential benefits to be followed accordingly. With the aforesaid observation and direction, the writ petition is allowed. Singh ( Navaniti Prasad Singh, J.)