1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7223 of 2009 Date of decision:16/11/2009 Dt.of reserving the judgment: 9.11.2009 Dt.of pronouncing the judgment: 16/11/2009 For approval and signature HON'BLE MR. JUSTICE NARESH H.PATIL HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see YNo. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/16/11/2009 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7223 of 2009 1. The State of Maharashtra. 2. The Superintendent of Police, Aurangabad (Rural), Aurangabad. ...PETITIONER (Ori.Respondents) VERSUS Abdullah s/o Abdul Rahim Basravi, Age: 46 yrs., Occup.Nil, R/o. H.No.8-10-671, Rahat Colony, behind Panchayat Samiti, Aurangabad. ...RESPONDENTS ... Mrs. A.V.Gondhalekar, AGP, for petitioner. Shri Rajendra Deshmukh, Adv., for respondent. ... CORAM: NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATE : 16th NOVEMBER, 2009. *** Date of decision:16/11/2009 Dt.of reserving the judgment: 9.11.2009 Dt.of pronouncing the judgment:16/11/2009 *** 3 JUDGMENT: (Per K.U.Chandiwal, J.) 1. Heard. Rule. By consent of the parties, the matter is finally heard. 2. The State assails the original application decided by the learned Member, Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad, (for short, "MAT") allowing the same, directing the State to reinstate the respondent by order dt.14.7.2009. 3. The respondent was serving in the Police Department. He submitted an application for voluntary retirement on 3rd Jan.,2008. On processing the application, an order came to be passed accepting the resignation dt.6.2.2008. In the meantime, the respondent had applied for withdrawal of the said application by his application dt.29.2.2008. The competent authority rejected the said application on 25.3.2008. Consequently, the said order was challenged by the respondent. 4. The State contends that pursuant to the order of the authorities dt.2nd April, 2008, the respondent accepted the retiral benefits and could not have moved the learned Member of the MAT. The order rejecting request of respondent for cancellation of his voluntary 4 retirement application was granted after following due process and confirming the will of the respondent and his willingness to proceed on voluntary retirement, as it was on its merits. 5. Learned A.G.P. submits that the respondent Police Constable is estopped in the eyes of law from getting revocation and withdrawal of his option once given. In support, reliance is placed upon the judgment in the matter of Punjab and Sind Bank and another V. S.Ranveer Singh Bawa and another (AIR 2004 SUPREME COURT 2334). 6. Learned Counsel representing respondent Constable has contended, apart from the legal position supporting the respondent, he was virtually harassed and humiliated by the Department at the material time. Resultantly, in a fit of rage, he moved the application for voluntary retirement. However, in the light of Rule 66(5) of Maharashtra Civil Services (Pension) rules, since the withdrawal itself was in time, the authorities were bound to consider it favourably which, in the facts, the authorities did not consider and the learned Member of the MAT has corrected the same. 7. The voluntary retirement was moved by the respondent on 3rd Jan.,2008, and by order dt. 5 6th Feb.,2008, the State, in terms of Rule 66(1) of the Pension Rules, passed the order. The permission was granted to the applicant for retirement after 2nd April, 2008. In fact, if the employee moves any application before the date of retirement dt. 2nd April, 2008, in terms of Rule 66(5) of Maharashtra Civil Services (Pension) Rules, the applicant is not precluded from withdrawing his election to retire. 8. We quite see that pursuant to rejection of the application dt.25.3.2008, the respondent constable has availed the pensionary benefits, however, collecting or receiving the pensionary benefits, by itself, will not obliterate and obliviate the effect of the existing Rules, which confer a right in the respondent constable to elect to withdraw the application for retirement. 9. The application dt.29.2.2008 was considered by the learned Superintendent of Police ( Rural), however, reading the order, it is apparent, no reasons are assigned as to why the withdrawal sought by respondent constable is negatived. No personal hearing was given to the respondent constable though it is so pleaded by the State in the writ petition. The reference to giving hearing is dt.18.1.2008, which is 6 apparently prior to 29.2.2008 and, resultantly, it cannot be banked upon by the State for giving so called personal hearing. 10. The matter is well settled on this aspect. In the matter of Balram Gupta v. Union of India and another ( 1987 (Supp) Supreme Court Cases 228), the Apex Court considered the notice of voluntary retirement and its withdrawal by an an employee and the Apex Court accepted that the notice of voluntary retirement can be withdrawn at any time before retirement becomes effective notwithstanding any Rule for providing obtaining specific approval of the concerned authority as condition precedent to withdrawal of the notice. The Lordships observed, "the approval of the authority under Rule 48-A(4) is, however, not ipsi dixit of the approving authority. The approving authority, who has statutory authority, must act reasonably and rationally". 11. In the matter of P.Lal V. Union of India and others ((2003) 3 SUPREME COURT CASES 393), the Apex Court considered the effective date of voluntary retirement. It was observed, moment the Government accepted the notice of voluntary retirement, held, the retirement became effective and relationship of master and servant stood severed. In that case, the officer who moved for voluntary retirement, tried to withdraw his 7 application. However, in the meantime, another officer was promoted in the said officer's place and he apprehended loss of seniority and he challenged such withdrawal of voluntary retirement and Apex Court upheld that such challenge by the subsequently promoted officer is legitimate and could not be said to be based on mere expectations and accidental windfall. 12. Learned A.G.P. contended that pursuant to the request of the applicant on 29.2.2008, the pension papers of the applicant, as submitted by him on 3rd April, 2008, were forwarded to the Accountant General, Nagpur, for grant of pension. Similarly, all pensionary benefits had been finalized and granted to the Constable/employee on 23rd Sept.,2008 which he has received. It is informed that the amount received by the employee Constable is Rs.4,54,000/- under different heads. Learned Assistant Government Pleader contended that there operates estoppel to the employee constable to withdraw the voluntary retirement. 13. We do not accede to the contention that there operates an estoppel against the employee constable so long as Rule 66(5) of the Maharashtra Civil Services (Pension) Rules, 1982, is operational and comes to the rescue of the employee constable. 8 The judgment of the Apex Court, in the matter of Punjab and Sindh Bank (supra) was on different parameters. It was a specific policy of Government to promote voluntary retirement, the scheme was to commence w.e.f. 1st Dec.,2000 and was to remain in operation upto 31.12.2000. It was for giving the financial institutions a boost for computerization/modernization of the financial institutions and to get rid of the excess employees. The scheme itself provided a rider that the willingness once given will not be allowed to opt out. This judgment will not be applicable to the State's contention of estoppel or non entitlement of the employee constable in the present case. 14. The allegations of victimization and vindictiveness, having developed beard, being beyond scope of pleadings, we need not advert the same. 15. There is no case of the State that the petitioner was not doing his work wholeheartedly or was a shirker. There is nothing to demonstrate that he had tendencies to take frequent leave or to avoid the work. This circumstance, though not surfaced, could even not be a ground for refusal to grant permission for withdrawal of voluntary retirement. 9 16. Now, the question remains as to receiving the amount of Rs.4,54,000/- by the employee constable on or after 23rd Sept.,2008. During the course of submissions Mr. Deshmukh fairly stated that the amount received by the employee constable is invested in Nationalized Bank and employee undertakes to reimburse the same immediately. 17. Taking survey of facts and documents, to workout the modalities in the matter, we find that, apart from the benefits received by the employeee constable, he shall be precluded from other financial benefits which the learned Member of the Tribunal granted in the Original Application No.829/2008, as stated in paragraph no.4 of the order. The entitlement spelt out for the monetary benefits effective from 1st Jan., 2009, till the date of issue of order of reinstatement in service will not be availed of by the employee Constable. 18. The petition moved by the State lacks merit. It is dismissed. Rule discharged. The employee/constable to reimburse the pensionary benefits enjoyed by him upto 25th - 10 Nov.,2009 and he shall, thereafter, be entitled for resumption of duties. (K.U.CHANDIWAL) (NARESH H.PATIL) JUDGE JUDGE ... agp/wp7223-09