JUDGMENT :

1. In this application under Article 226 of the Constitution of India the petitioner has challenged the decisions of the respondent-authorities vide order contained in Annexure-5 whereby the written prayer of the petitioner for voluntary retirement was treated as an application of resignation. The challenge is on the ground that the impugned order suffers from arbitrariness and is violative of the legal right of the petitioner.

2. The petitioner joined in State Health Services on 07.09.1987. On 31.10.2005 the petitioner filed an application to the Secretary, Government of Bihar, Health Department, stating therein that due to certain personal and family reasons the petitioner is not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01.02.2006. Since, the petitioner had not completed 20 years of service for retiral benefit. Hence, the petitioner made further prayer in the said application that the intervening period between 01.11.2005 to 31.01.2006 be treated as period spent on extra-ordinary leave. The application was forwarded through the Principal of Patna Medical College and an advance copy was sent to the Secretary, Department of Health (Medical Education), Government of Bihar. The application of the petitioner dated 31.10.2005 is at Annexure-1. Thereafter, the petitioner again sent letter dated 28.04.2006 to the Secretary concerned drawing attention of the Secretary towards his earlier letter dated 31.10.2005 and further stated that if the department has any technical objection in allowing the prayer of voluntary retirement, the petitioner be permitted to retire from the service.

3. The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years of qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code.

4. However, the authorities did not pass any order on the aforesaid petition; rather initiated a departmental proceeding against the petitioner vide resolution dated 04.11.2006 on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. After completion of the inquiry the petitioner was exonerated in the disciplinary proceeding on 02.01.2013. By the same order, the petitioner was sanctioned extra-ordinary leave for the period of his absence adopting the policy of "no pay for no work". As such, the petitioner was in active and continuous service till the order dated 02.01.2013.

5. Learned counsel for the petitioner submits that respondent No.3 treated the application of the petitioner dated 31.10.2005 as an application of resignation without any rhyme or reason or any such averment in the application. Therefore, act of respondent No.3 suffers from arbitrariness and takes away the valuable legal right of the petitioner. As such, is not sustainable in law. On the date the order contained inAnnexure-5 the petitioner had already completed 50 years of age and 30 years of qualifying service. In the aforesaid circumstance, either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation. The petitioner had clearly stated in his application dated 28.04.2006 that if there is any technical difficulty in accepting the prayer of voluntary retirement the authority may make him to retire from the date of prayer and the consequence would follow. However, since there was no prayer for resignation, the authority could not have without hearing the petitioner treated the said application as application for resignation.

6. Mr. Birju Prasad, learned counsel appearing for State-respondents, has drawn attentio