VERY IMPORTANT POINT
A request for pre-mature retirement which required the acceptance of the competent or appropriate Authority will not be complete till accepted by such competent Authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for pre-mature retirement was made to take effect from a future date.

Headnote:Service Law-Pre-mature retirement-Request for-Right of employee to withdraw request-Request for pre-mature retirement which require acceptance of competent authority will not be complete till accepted by such competent authority-Request could be withdrawn before it becomes complete-Policy decision of department or undertaking/certificate by employee that he would not seek cancellation of request is destructive of employees right-Right cannot be deprived except by statutory provision or rule or regulation.
       A request for pre-mature retirement which required the acceptance of the competent or appropriate Authority will not be complete till accepted by such competent Authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for pre-mature retirement was made to take effect from a future date. (Para 6)
       So far as the case in hand is concerned, nothing in the form of any statutory rules 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 20.2.86, a day after the respondent withdrew his request for pre-mature retirement but even such acceptance in this case was to be effective from a future date namely 31.8.86. Consequently, it could not be legitimately contended by the appellants that there was any cessation of the relationship of master and servant between the Department and the respondent at any rate before 31.8.86. 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. (Para 8)
       The reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for pre-mature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for pre-mature retirement before it ever became operative and effective and effected termination of his status and relation with the Department. When the legal position is that much clear it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of a substantive right of a person can be denied expert on the basis of any statutory provision or rule or regulation. (Para 9)

JUDGMENT

Raju, J.-The respondent was commissioned in the Indian Air Force on 21.1.1963 as an officer in the Accounts Branch and in due course he successively rose to the rank of Wing Commander by virtue of promotions earned by him, on 17.1.1989. Having regard to certain problems in the family due to continued illness of his wife and need to face other commitments and responsibilities he was constrained to seek for pre-mature retirement. He submitted an application dated 21.7.1985 praying for pre-mature retirement from service with effect from 31.8.1986 with 6 months leave preparatory to retirement said to be due to him with the admissible full non-effective benefits. It is a fact that as expected of him he also furnished a certificate stating that he was aware that any request made by him later for the cancellation of his application for pre-mature retirement would not be accepted.

2. When the matter was under process before the concerned Authorities, on 6.11.85 the respondent seem to have moved an amendment to his earlier application stating that the actual date of his release could be decided taking into account the pensionary recommendations/requirements of the IVth Pay Commission s Report which was expected to come in November 1985. In view of this the date of retirement sought with effect from 31.8.86 itself, according to the respondent stood altered before any decision was taken or communicated. On 19.2.86, the respondent on being able to, as claimed by him surmount the health problems of his wife and also sort out the other difficulties, submitted an application seeking to withdraw the application earlier submitted for pre-mature retirement from service, with a favourable recommendation thereon by the group captain - Command Accounts Officer. While matters stood thus, the respondent was served on 7.3.86 with a communication dated 6.3.86 that information has been received from AIR Headquarter in their letter dated 20.2.86 that the respondent will pre-maturely retire from service at his own request with effect from 31.8.86, with certain other consequential directions. The request made for withdrawal of the application for pre-mature retirement was also not accepted on the ground that the Headquarters does not accede to requests for such cancellation after initial approval of the same by RRM and having regard to the certificate given by the respondent himself. The request further made on 8.7.86 to change at least the date of retirement, did not meet with success and the same was also turned down under a communication dated 10.7.86 mailed on 28.7.86 and served on the respondent on 5.8.86.

3. Aggrieved, the respondent filed Writ Petition No.16105 of 1986 before the Karnataka High Court seeking to quash the order of pre-mature retirement with effect from 31.8.86 and for consequential direction to continue the respondent in service with all consequential and attendant benefits. The Department s stand before the High Court as is now before us was that under the existing policy there was no scope for withdrawing the application for pre-mature retirement, once submitted, that in the light of such policy the respondent also gave a certificate that he was aware of the fact that his subsequent request for withdrawal will not be accepted and that such a policy came to be adopted in public interest in the light of the experience gained from the move of the officers often to seek pre-mature retirement when there is a difficult duty to be performed and attempting to seek for cancellation after tiding over/avoiding the same and consequently, no exception could be taken to the action of the Department.

4. The learned Single Judge overruled the objection of the Department both on the ground that in the case on hand it has not been averred or substantiated that the petitioner offered for pre-mature retirement as a camouflage to get over any difficult assignment of duties and the subsequent change of mind was to gain any undue advantag

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2000 Supreme(SC) 1779

Cases Referred (5)