1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.9516/2006. : : C. K. Jain Vs. State of Rajasthan. : : Date of Order 17.8.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Mahendra Singh for the petitioner. Mr. N. A. Naqvi, AAG for the State. Heard learned counsel for the parties. 2. Although this matter comes up in an application for directing the respondents to release the provisional pension of petitioner, but keeping in view the controversy involved and the fact that arguments would sufficient for disposal of main writ petition itself, matter is accordingly heard for final disposal. 3. Petitioner in the present case has challenged the order dated 12.3.2001 and also the communication dated 5.10.2000 with the prayer that a declaration be issued to the effect that petitioner's request for voluntary retirement became effective upon expiry of period of three months from 2 6.9.2000. 4. Shri Mahendra Singh, learned counsel for the petitioner has argued that petitioner was initially appointed as Junior Engineer in the Irrigation Department on 10.10.1969 and promoted as Assistant Engineer on 22.5.1972. Subsequently in the year 1973 he got selected on the same post by way of direct recruitment through RPSC. He was later promoted as Executive Engineer on 1.11.1991 and then promoted as Superintending Engineer by order dated 16.8.2003. Petitioner submitted application to the respondents on 6.9.2000 seeking voluntary retirement w.e.f. 31.10.2000. It is contended that no action was taken by the respondents on such application inasmuch as no communication declining the request for voluntary retirement was served upon the petitioner within a notice period of three months. The respondents belatedly on 12.3.2001 sent a communication of Chief Engineer referring to departmental communication dated 25.10.2000 sent by Deputy Secretary, Irrigation to Chief Engineer conveying refusal of request of voluntary retirement of petitioner. Learned counsel for the petitioner submitted that as per scheme of contained in Rule 50 of Rajsthan Civil Services (Pension) Rules, 1996, the 3 notice of voluntary retirement unless dealt with otherwise, comes into effect on expiry of period of three months and, therefore, it should be declared that petitioner stood retired. Learned counsel in support of his arguments relied on the Division Bench judgment of this Court in State of Rajasthan Vs. R. P. Agarwal & Ors. : 2006 (2) RLW, 1654 and judgment of Supreme Court in B. J. Shelat Vs. State of Gujarat & Ors. : 1978 (2) SCC, 202. Learned counsel contended that Supreme Court in the aforesaid case held that meaning of word “withhold” is that appointing authority has withheld permission, but at the same time it must communicate such intention to the Government servant concerned within the notice period. Withholding of promotion cannot be a matter of interference and it has to be conveyed to the Government servant by a specific communication. It is also submitted that respondents have merely stated that copy of letter dated 25.10.2000 was endorsed to the petitioner, but it has nowhere averred that it was actually served upon the petitioner. Unless service of that communication dated 25.10.2000 is proved to the satisfaction of Court, it must be held that it was not served upon petitioner within the notice period of three months. It is, therefore, prayed that writ petition be allowed. 4 5. Shri N. A. Naqvi, learned Additional Advocate General opposed the writ petition and submitted that writ petition be dismissed on the ground of delay and latches because petitioner approached this Court in the year 2006 assailing order dated 12.3.2001 and 25.10.2000. It was contended that the reason for filing this writ petition in the year 2006 was that petitioner was served with three separate charge-sheets on 12.1.2006, 23.3.2006 and 28.3.2006 and he filed three separate writ petitions challenging those charge-sheets. For six years in between, he was fully satisfied with rejection of request of voluntary retirement and that he never challenged such rejection order. Learned counsel submitted that in fact application of petitioner was turned down by a conscious order citing the reason of pendency of criminal case No.264/1996 and pending request for prosecution sanction. It was contended that petitioner not only served the respondents thereafter for more than five years, but was also reinstated in service as the order of suspension being withdrawn following his acquittal by ACD Court and that thereafter the petitioner was also promoted to the post of Superintending Engineer by order dated 16.8.2003. Petitioner has thus by his own conduct waived the right to question of correctness of order refusing to permit 5 voluntary retirement. It is, therefore, prayed that writ petition be dismissed. 6. Having heard learned counsel for the parties and perused the material on record, I find that application of petitioner was considered and rejected by the Government, which by letter dated 25.10.2000 conveyed to Chief Engineer, Irrigation Department, Jaipur. In that order, Government cited the reason of criminal case registered against the petitioner in FIR No.264/96 and the pending proposal seeking his prosecution sanction. A copy of this letter was endorsed to petitioner on 25.10.2000. Howsoever, learned counsel for the petitioner may argue that this copy was not received by the petitioner, but in fact his submission does not at all inspire any confidence because he himself did not question the correctness of that order for a period of more than five years, even after it was re-conveyed to him by letter dated 12.3.2001. Not only this, petitioner was in the meantime reinstated in service with the order of his suspension being withdrawn and thereafter promoted. Petitioner himself has in para No.2 of writ petition averred that he was promoted to 16.8.2003 on the next higher post of Superintending Engineer. Obviously, petitioner knew 6 throughout that request of his voluntary retirement was rejected and acting on that basis, he continued to serve the respondents. On his conduct, he waived the right to the question correctness of the impugned orders. Moreover, the fact that all these issues pertains to year 2000-2001 and petitioner has sought to challenge the impugned orders in a writ petition filed in the year 2006 at the time when the petitioner happened to challeng three different charge- sheets. The Division Bench judgment of this Court in the case of R. P. Agarwal (supra) can hardly have any application to facts of the present case. The writ petition is dismissed accordingly. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.44.