CIVIL WRIT JURISDICTION CASE No.14756 OF 2009 1-SHAH WALIULLAH TARIQUE S/O LATE SYED SHAH AZMATULLA R/O SHAH MANZIL, MADARSA CHAUK CHANDWARA, P.S. MUZAFFARPUR, DISTT.- MUZAFFARPUR-----(Appellant) Versus 1-THE STATE OF BIHAR THE STATE OF BIHAR THE STATE OF BIHAR-----(Respondents) 2-THE SECRETARY, RAJBHASHA DEPARTMENT THE SECRETARY, RAJBHASHA DEPARTMENT THE SECRETARY, RAJBHASHA DEPARTMENT-----(Respondents) 3-THE DIRECTOR (URDU), RAJBHASHA DEPARTMENT, BIHAR, PATNA THE DIRECTOR (URDU), RAJBHASHA DEPARTMENT, BIHAR, PATNA THE DIRECTOR (URDU), RAJBHASHA DEPARTMENT, BIHAR, PATNA-----(Respondents) 4-THE DISTRICT MAGISTRATE, SITAMARHI THE DISTRICT MAGISTRATE, SITAMARHI THE DISTRICT MAGISTRATE, SITAMARHI-----(Respondents) 5-THE BLOCK DEVELOPMENT OFFICER, PATAHI BLOCK MOTIHARI THE BLOCK DEVELOPMENT OFFICER, PATAHI BLOCK MOTIHARI THE BLOCK DEVELOPMENT OFFICER, PATAHI BLOCK MOTIHARI-----(Respondents) ----------- For The Petitioner :BEHZAD AKHTAR For The Respondent :(SC6) PRESENT THE HON'BLE MR. JUSTICE NAVIN SINHA J U D G E M E N T Navin Sinha,J. Heard learned counsel for the petitioner and learned counsel for the State. The question for consideration is whether the petitioner's application for voluntary retirement stood withdrawn by his conduct and waiver by the respondents, before the communication of its acceptance. Options for choice posting were invited on 28.5.2008/3.6.2008. The petitioner was given posting to another district outside his options. Peeved, on 3.7.2008 he wrote that in view of his medical condition requiring medical supervision he may be granted permission for voluntary retirement. The District 2 Magistrate on 21.7.2008 wrote to the controlling authority that pending decision on the petitioner's application he was being retained in the same District as before the order of transfer. This was reiterated on 10.11.2008. On 4.5.2009 the petitioner wrote to the controlling authority that he has since joined on the transferred post at the other District and only reiterated his request for a preferred option posting due to his medical condition. On 25.8.2009 the controlling authority communicated acceptance of the request for voluntary retirement dated 3.7.2008 which is presently assailed. Learned counsel for the petitioner urged that, in fact, the respondents themselves did not accept the request for voluntary retirement by conduct and waiver. The master-servant relationship continued between the parties and the request was deemed to be withdrawn when the petitioner joined the transferred post. Learned counsel for the State urged that the request for voluntary retirement was accepted before any withdrawal was made in writing. The writ petition had no merit. A government servant is entitled to take voluntary retirement on fulfillment of the conditions 3 under Rule-74(b)(i) of the Bihar Service Code(hereinafter called “the Code”). It provides for voluntary retirement at the behest of the employee after giving at least three months previous notice upon completion of thirty years of qualifying service or fifty years of age, or any other date specified in the notice. Sub-clause-(ii) of the same gives power to the Government to retire a Government servant by three months previous notice in writing or pay in lieu thereof with like conditions. This provision has been interpreted by Courts to mean that a formal acceptance of the request of the Government servant was not necessary and it stood accepted on expiry of three months automatically, an option available either to the employee or the master, or the specified date. The petitioner on 3.7.2008 did not communicate a decision of voluntary retirement. On the contrary he only sought permission at the discretion of the respondents without invoking the notice period or any other specified date. The language of the letter reflects that it was written in a peeved and agitated mind as a choice posting was not given and the place of posting was considered medically inhospitable. His papers were forwarded to the controlling authority for consideration. Before his 4 request was acceded to, he obviously had a rethink on the issue and, therefore, went and joined the transferred place which he considered medically inhospitable, as informed on 4.5.2009 no sooner that his health improved and for which reason he was on medical leave. He joined and started discharge of duties. The master-servant relationship continued. It is apparent that when the petitioner joined the transferred post considered inhospitable and for which reason he had requested permission to be allowed voluntary retirement, there remained no request to consider for acceptance. The request stood withdrawn by conduct. The respondents waived consideration of the request by acceptance of his joining at the transferred place. Withdrawal can be express or by conduct. Likewise, acceptance can be specific or by conduct. There can be waiver expressly or by conduct. Once, the request to permit voluntary retirement, at the discretion of the respondents stood withdrawn, there remained nothing for them to accept. The acceptance dated 25.8.2009 is, therefore, in the void without the presence of a request to consider acceptance. In the case of BALBIR SINGH NEGI Vs. 5 UNION OF INDIA, Supreme Court Service Rulings Volume 17 at page 445 ( S.L.P.(Civil) 5655 of 1996 (K. Ramaswamy and G.B. Patnaik JJ.) decided on 25.3.1996, the Apex Court held “ It is seen that in this case, admittedly, the petitioner has stated that he was on leave for one year prior to the date of seeking voluntary retirement on medical grounds as he was unable to discharge the duties and that, therefore, he had sought to voluntarily retire from service. It would appear that when he was transferred from Shimla to Faridabad, he had submitted his application in a huff for voluntary retirement and thereafter he came forward with the application for withdrawal.” The impugned order dated 25.8.2009 is, therefore, not sustainable and is accordingly set aside. Following (2005) 5 SCC 621 (SHAMBHU MURARI SINHA Vs. PROJECT AND DEVELOPMENT INDIA And ANOTHER) The petitioner shall be deemed to be in continuous service entitled to all consequential benefits. The writ application is allowed. Patna High Court Dated the 24th of November, 2009 AFR/KC ( Navin Sinha, J.)