1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6176 OF 2009 Dr. Nandkumar Balkrishna Kulkarni ... Petitioner Vs. State of Maharashtra & Ors. ... Respondents Mr. Sanjay Kshirsagar, Advocate,for the petitioner. Mr. V.S.Masurkar, Govt. Pleader, for respondents. CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. DATE : 26th November, 2009. P.C. 1. Rule. Heard forthwith. 2. The petitioner was in the service of respondent No.1 and was holding the post of the Associate Professor. After having completed 20 years of service, he served a notice dated 3.11.2006 for voluntary retirement. The petitioner was informed by letter dated 12.3.2007 that his application for voluntary retirement has been rejected. 3. The petitioner continued to be in service and rendered the services. 2 The petitioner thereafter once again on 17.4.2007 gave a fresh notice of voluntary retirement. On 13.6.2007, that notice of voluntary retirement has been rejected. The petitioner thereafter approached the M.A.T. by filing O.A. No.68 of 2008. The learned Tribunal by the impugned order dated 25.7.2008 was pleased to hold, considering Rule 66(1)(2) of the Maharashtra Civil Services (Pension) Rules, 1982 that as the respondent had not communicated the rejection to the petitioner within three months of the notice dated 3.11.2006, he stands retired with effect from 1.2.2007. The petitioner thereafter came to be relieved on 14.8.2008. By the present petition, the petitioner seeks to contend that he should be treated in service till 14.8.2008 and accordingly the services rendered by him upto that date be treated as pensionable service. 4. On behalf of the respondents, the learned Counsel points out that this issue was not the issue before the Tribunal. Consequently, this Court ought not to consider that aspect of the matter. At the highest, the matter may be remanded back to the Tribunal for reconsideration. 5. We have heard the learned Counsel for the parties. 6. Rule 66(1)(2) reads as under :- 3 “66. Retirement of completion of 20 years qualifying service. (1) At any tie after a Government servant completed twenty years qualifying service, he may, by giving notice of three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority : Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.” A perusal of the said Rule therefore would indicate that the Government has to communicate its decision of rejection within 3 months. By the proviso, if refusal is not communicated, the retirement becomes operative from the date of the expiry of the said period. Therefore, by operation of law itself, the retirement would have been effected in the ordinary course on 1.2.2007. 7. However, the respondents did not treat the petitioner as not being in service and allowed him to continue in service and he discharged his functions and duties. This is further fortified by the fact that the petitioner had issued a fresh notice on 12.4.2007 which notice was rejected by the respondents on 30.6.2007 but within the time as contemplated by Rule 66. As the notice was 4 rejected, the petitioner approached the learned Tribunal. The learned Tribunal did not consider the aspect that the petitioner was not relieved from service on 1.2.2007, but continued to be in employment and on the contrary treating the petitioner as in service rejected the second notice. The petitioner himself for all purposes treated himself as being in service and the respondents treated the petitioner as being in service. To that extent, really speaking, the learned Tribunal committed a mistake of law. The right to accept a voluntary retirement is of the State. The Tribunal in fact brought itself into the position to decide whether the previous notice was good. The fact however remains that pursuant to the order of the Tribunal, the petitioner has been relieved from service. Once that be th case, in our opinion, the date of relieving will have to be treated as the date of retirement from service and in the light of that, we issue the following directions :- The petitioner be treated as having retired from service with effect from 14.8.2008. For the purpose of pension and other benefits, the petitioner be treated as having retired from 14.8.2008. Rule made absolute accordingly. No order as to costs. (J.H.BHATIA,J.) (F.I.REBELLO,J.)