1 S.B.CIVIL WRIT PETITION NO.396/2005 Smt. Radha Devi v. State of Rajasthan & Ors. Date of Order :: 23rd April, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. N.M.Vyas, for the petitioner. Mrs. R.R.Kanwar, for the respondents. .... Shri Onkarlal, husband of petitioner Smt. Radha Devi, was employed as Multi Purpose Worker with Medical & Health Department of the Government of Rajasthan on 2.3.1971. An application dated 6.9.1991 was submitted by him seeking voluntary retirement from service w.e.f. 2.5.1992. No response to the application aforesaid was given by the respondents, therefore, Shri Onkarlal treated himself retired from service w.e.f. 2.5.1992. As per the petitioner, Shri Onkarlal submitted so many representations for grant of retiral benefits but of no consequence, hence in the months of May, 2003 he preferred an application either to release retiral benefits or to permit him to rejoin the duties. After receiving the application aforesaid, a notice dated 19.2.2004 from the Additional Director (Administration), Medical & Health Services, Government of Rajasthan, Jaipur was served upon Shri Onkarlal seeking explanation for remaining absent since 1.4.1991. Shri Onkarlal, as per the 2 petitioner, submitted an explanation on 1.3.2004, a copy whereof is placed on record as Anx.3. Unfortunately, Shri Onkarlal died on 5.7.2004. The petitioner, therefore, submitted an application claiming all post retiral benefits relating to Shri Onkarlal and also family pension for herself. In response thereto, under a communication dated 25.10.2004, it was conveyed that under an order dated 10.5.2004 Shri Onkarlal, husband of the petitioner, stood terminated from service w.e.f. 25.5.1992 by treating him resigned from service. A denial, therefore, was made for grant of family pension and appointment on compassionate grounds to the son of the petitioner. A copy of the order dated 10.5.2004 was also supplied to the petitioner, according to that Shri Onkarlal remained absent from duties for a period of more than five years, therefore, he was terminated from services by accepting his resignation w.e.f. 2.5.1992. Aggrieved by the same, this petition for writ is preferred. No reply to the writ petition is filed by the respondents despite several opportunities. Heard counsel for the parties. As per the averments contained in petition for writ, the husband of the petitioner submitted an application for voluntary retirement on 6.11.1991 3 seeking voluntary retirement w.e.f. 2.5.1992. No response to the application aforesaid was given by the respondents. Shri Onkarlal, as per the provisions of Rule 244 of the Rajasthan Service Rules, 1951 (As then applicable), treated himself retired from service from the date appointed. The respondents did not choose to release pensionary benefits and other retiral benefits to Late Shri Onkarlal in his lifetime. It appears that Shri Onkarlal in the year 2003, on being frustrated by not getting retiral benefits, made a request to rejoin the service. The respondents instead of considering the request of Shri Onkarlal objectively, decided to terminate him from service w.e.f. 2.5.1992. It is pertinent to note that termination of the petitioner was made by acceptance of resignation though no such application was ever given by Shri Onkarlal. The respondents treated the petitioner resigned from service w.e.f. 2.5.1992 i.e. the date appointed for voluntary retirement, this fact itself proves it well that an application was submitted by the petitioner for voluntary retirement. By a positive action, if such request was not denied then Shri Onkarlal was certainly right in treating himself retired from service w.e.f. 2.5.1992. The respondents after 2.5.1992 were having no jurisdiction to terminate Shri Onkarlal from service by accepting a resignation which was, as a matter of fact never given. Shri Onkarlal is required to be treated as retired from service w.e.f. 2.5.1992. It is also something unusual that the 4 resignation of Shri Onkarlal was accepted in the year 2004, though the appointed date for seeking voluntary retirement was 2.5.1992. The respondents did not choose to take any decision within a period of three months after receiving the application seeking voluntary retirement and only on making request by Shri Onkarlal either to give retiral benefits or to allow him to rejoin duties, the order to terminate him from service by treating resignated from service was passed. Such termination is not at all bonafide. The termination by treating Shri Onkarlal resignated from service is absolutely bad, also for the reason that no such request was ever made by him. Hence, this petition for writ deserves acceptance and, therefore, the same is allowed. The respondents are directed to treat Shri Onkarlal retired from service w.e.f. 2.5.1992 and to allow all retiral benefits to him from the date of his retirement referred above. The benefits in the terms of money be computed and be paid to the petitioner being widow of Late Shri Onkarlal. The petitioner is also declared entitled for getting family pension as per Rules. No order as to costs. ( GOVIND MATHUR ),J. Kkm/ps.