JUDGMENT Sunil Ambwani, J.
1. Petitioner has challenged an order dated 21.9.2000 passed by Deputy Director of Fisheries, Basti, on his application for voluntary retirement dated 1.9.2000 with effect from 30.11.2000, and the order dated 30.11.2000, by which he has retired as Matsya Vikas Adhikari, Sant Kabirnagar.
2. The facts of this case are that petitioner appointed in the year 1970, was serving as Matsya Vikas Adhikari, Santkablr Nagar. He submitted an application dated 1.9.2000, for voluntary retirement to be effective from 30.11.2000. On 20.9.2000, he gave an application to modify the order to the effect that he has been harassed on account of his transfer within five months, and non-payment of salary for two days. On 22.9.2000, an application was made by his wife for cancelling the application given by her husband for voluntary retirement. The application for retirement was accepted on 21.9.2000 to be effective from 30.11.2000. Petitioner was required to handover charge on 30.11.2000. By an application dated 16.11.2000, which was received on the same day, petitioner prayed to withdraw his application and to treat his application for voluntary retirement as cancelled. He also prayed that the order dated 21.9.2000, accepting his application for voluntary retirement may be cancelled. Petitioner was relieved by the Chief Executive Fisheries Development Officer, Sant Kabir Nagar on 30.11.2000.
3. I have heard Sri A.P.N. Giri, learned counsel for the petitioner and learned standing counsel for respondents.
4. In the counter-affidavit of Dr. H.N. Singh, Deputy Director, Fisheries, Basti, the receipt of application dated 20.9.2000 and 22.9.2000 have been denied. It is, however, admitted that petitioner made an application on 16.11.2000 to withdraw his application for voluntary retirement, however, since his application for voluntary retirement was accepted on 21.9.2000, the subsequent applications dated 16.11.2000 and 17.11.2000, were not entertained. It is further stated in para 11 of the counter-affidavit that petitioner had given the application for voluntary retirement with his free will, without any duress and, thus petitioner cannot later on be allowed to say that the application dated 1.9.2000, was given under any compulsion and coercion.
5. Sri A.P.N. Giri submits that an application for voluntary retirement can be withdrawn at any stage before it comes into effect. He has placed reliance upon Rule 7 of Uttar Pradesh Government Servants Resignation Rules, 2000 and Judgment of Apex Court in Union of India and Anr. v. Wing Commander T. Parthasarathy, 2001 (1) AWC 289 (SC) : JT 2000 (Suppl) 2 SC 490. Learned standing counsel, on the other hand, states that when an application was made without any coercion and was accepted on 21.9.2000, there was no question of its withdrawal. He has relied upon the third proviso to Rule 56 (d) which provides that a notice once given by a Government servant under Clause (c), seeking voluntary retirement shall not be withdrawn by him, except with the permission of the appointing authority.
6. The Uttar Pradesh Government Servants Resignation Rules, 2000, are not applicable in the present case inasmuch as the petitioner had applied for voluntary retirement after serving for thirty years. The question, however, is whether the petitioner has 'locus penitentiae' to withdraw the application for voluntary retirement before the date of voluntary retirement given in his application. In Raj Kumar v. Union of India, 1986 (3) SCR 857, it was held that application for premature retirement having been approved on 14.1.1986, even prior to the withdrawal letter dated 19.2.1986, the same could not give any benefit. This opinion was considered by the Constitution Bench in Union of India etc. v. Gopal Chandra Misra and Ors., AIR 1978 SC 694. Para 51 of this judgment is quoted as below :
"It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment of the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries in the case of a Government servant or functionary who cannot, under the conditions of his service or office, by his own unilateral act of tendering resignation, give up his service or office. Normally, the tender of resignation becomes effective and his service or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court who is a constitution functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand, addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time, before the arrival of that prospective date on which it was intended to be effective, withdraw it because the Constitution does not bar such withdrawal."
7. In J.N. Srivastava v. Union of India and Anr., (1998) 9 SCC 559, the view taken in Balram Gupta v. Union of India, 1987 (Supp) SCC 228, was accepted in which it was held that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has 'locus poenitentiae' to withdraw the proposal for voluntary retirement. This view was subsequently followed in Power Finance Corporation Ltd. v. Promod Kumar Bhatia, (1997) 4 SCC 280 and Shambhu Murari Sinha v. Project and Development India and Anr., 2000 (3) AWC 2330 (SC) : (2000) 5 SCC 621. In Union of India and Anr. v. Wing Commander T. Parthasarathy, 2001 (1) AWC 289 (SC) : JT 2000 (Suppl) 2 SC 490, it was held in Paras 7 and 8 as follows :
"7. This Court has again an occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period of from a future date as desired by the employee in Punjab National Bank v. P.K. Mittal, JT 1989 (1) SC 264 : AIR 1989 SC 1083. It was held therein that resignation being a voluntary act of employee, he may choose to resign with immediate effect or with a notice of less than 3 months if the employer agrees to the same or he may also resign at a future date on the expiry or beyond the period of 3 months as envisaged under the governing regulation in that case, even though there is no such consent from the employer, and that it was always open to the employee to withdraw the same before the date on which the resignation could have become effective.
8. So far as the case in hand is concerned, nothing in the form of any statutory rule or any provision of any Act has been brought to our notice which could be said to impede or deny this right of the appellants. On the other hand, not only the acceptance of the request by the Headquarters, the appropriate authority was said to have been made only on 20.2.1986, a day after the respondent withdrew his request for premature retirement but even such acceptance in this case was to be effective from a future date, namely 31.8.1986. While that be the position inevitably the respondent had a right and was entitled to withdraw or revoke his request earlier made, before it ever really and effectively became effective."
8. Following the principles settled in aforesaid decisions, I find that the application of petitioner for voluntary retirement dated 1.9.2000 was accepted on 21.9.2000 to be effective from 30.11.2000 and as such, he could have withdrawn his application on 16.11.2000, before it became effective.
9. Coming to the submission of learned counsel for respondent based upon the third proviso to Rule 56 (d) of U.P. Fundamental Rules, I find that the restriction of withdrawal, except with the permission of appointing authority, enable the appointing authority to reject the application for withdrawal by recording reasons before the date when the voluntary retirement becomes effective. The rule also enjoins the appointing authority, and casts a duty upon him to pass orders on the application for the withdrawal of the notice of voluntary retirement. In case no order is made on the application, for withdrawal, which has been accepted, the withdrawal will become effective. The reason being that the appointing authority may sit over the application, as is in the present case, to withdraw the application for voluntary retirement, and in that case, the petitioner's right to withdraw will be defeated. An order, therefore, must be passed on the application before it becomes effective upon giving valid and justifiable reasons and in the absence of such rejection, the application for withdrawal of voluntary retirement shall become effective before the appointed date.
10. So far as the back wages are concerned, in J.N. Srivastava v. Union of India and Anr. (supra), it was provided that the phrase "no work no pay" was not attracted inasmuch as the petitioner was willing and ready to work but the respondents did not allow him to work after the effective date mentioned in his application for voluntary retirement. Applying the same principle, the petitioner is entitled to back wages and all consequential benefits of service.
11. For the reasons stated above, the writ petition succeeds and is allowed. The impugned order dated 21.9.2000, passed by the Deputy Director (Fisheries), Basti and the retirement order dated 30.11.2000, passed by the same officer, are quashed. Petitioner shall be taken back in service with continuity of service, with full back wages and service benefits. Petitioner shall be entitled to Rs. 5,000 as costs, from respondents.